By Jhoan Sebastian Cote, EL ESPECTADOR, November 2, 2023
(Translated by Eunice Gibson, CSN Volunteer Translator)
The recent assessment by the Forging Futures Foundation reveals that in the Petro administration there are more responses to requests for land restitution, and that the Land Restitution Unit refuses fewer complaints to the legal system. However, the real goal of compensating the people of the country whose land was stolen is still only 4.9% accomplished.
The Forging Futures Foundation, which has been monitoring the land restitution process for more than a decade, has furnished its most recent analysis of the work of the government’s Land Restitution Unit. The Foundation, previously directed by Gerardo Vega, who is now the Director of the National Land Agency, recognizes the initial steps taken by the new administration in what could be a huge change; however, he makes clear that accomplishing the real goal of compensating for the historic plunder of land appears to be light years away. Thirteen years after the birth of the Unit, it has only been able to restore 4.9% of all the land identified by government agencies as stolen.
The historic debt
Colombia has 6,500,000 hectares that were abandoned by or stolen from more than 5,000,000 people.
Thirteen years after passage of the Victims Statute, only 4.9% of the government’s goal of restitution to 300,000 families has been accomplished.
Nevertheless, Forging Futures found that during the first year of the Gustavo Petro administration, there have been achievements, like the increase in the number of restitution judgments which depend on the work of judges and justices. While in the last year of President Duque’s administration there were 1,391 judgments that affect the title to property in restitution cases, there were 1,689 judgments in the first year of the Petro administration. In fact, in all four years of the prior administration, that figure was never reached.
In addition, the administrative stage of land restitution has been improved. To understand this concept, the reader has to know that the restitution process is divided into three stages: administrative, judicial, and post-judgment. The first stage begins when the Land Restitution Unit studies and then accepts a request for restitution from a victim of the conflict. That is the basis for a petition that enters the judicial stage, to be resolved by judges. Depending on the result, the post-judgment stage is dealt with by different government agencies to guarantee the different rights that relate to the return of the stolen property, as well as to access to education and health.
Returning to the administrative stage, Forging Futures found that, during Iván Duque’s presidency, its Land Restitution Unit denied as many as 71% of initial requests. In 2022, for example, 65% were denied. By contrast, in the first year of the Petro administration, denials of initial requests were reduced to 35%. As Giovanni Yule, Director of the Unit, has explained, they even reversed some of the prior administration’s denials, in order to give them a new thrust and access to justice.
Results achieved by the Petro administration
There was a 21% increase in the number of judgments at the judicial stage of the process.
Duque, year 1 1,408
Duque, year 2 1,157
Duque, year 3 1,151
Duque, year 4 1,391
Petro, year 1 1,689
Fewer requests by possible victims are being denied.
Denials in the last year of the Duque administration 65%
Denials in the first year of the Petro administration 35%
In addition, Forging Futures emphasized the necessity of passing the bill that seeks to give the Restitution Unit jurisdictional functions, and the authority to conclude by resolution the cases where there is no opponent.
That means that judges and magistrates would not have to evaluate defense arguments made by a party currently in possession of the property at issue. According to Forging Futures, 70% of the cases are unopposed, and therefore that legislative bill should be adopted immediately. The urgency also exists because of the nearly absolute impoundment at the judicial stage. This stage is supposed to last only 120 days, but in the great majority of cases, it takes much more time.
The stalled cases
It is expected that requests for restitution of land should be resolved in a maximum of 120 days from the commencement of the judicial stage. However, this is an absolute bottleneck.
There are 19,711 cases stalled at the judicial stage.
1% of cases were resolved within the time limit.
5% took from 120 to 140 days to be resolved.
7% took from 241 to 360 days.
7% took more than 360 days.
Finally, Forging Futures praised Yule for ordering the closure of the mining-energy affairs office. Under the premise of a thoroughgoing review of cases that were of interest to companies in those sectors, the office ended up as an obstruction to the requests made by victims of the war. Besides that, the Foundation argues for a change in the paradigm in which the Restitution Unit doesn’t need the approval of the Armed Forces in order to enter territories under consideration, because that leak has dammed up as many as 17,000 cases where people are waiting for an answer.
To understand the statistics more thoroughly, EL ESPECTADOR interviewed Rafael Valencia, a professional in the legal department of Forging Futures Foundation. Here are his responses.
How do you interpret the increase in the number of judgments as related to real advance in restitution?
In general terms, the judgments are the culmination of the whole process of restitution. That’s where the right really becomes a right. We have to remember the increase we are seeing in the number of final decisions, the ones made by the judges and justices. However, there continues to be a reason for concern about the advance we are seeing at the administrative stage, which has to do with the officials and employees of the Land Restitution Unit.
We understand that it’s the first year of President Petro’s administration, and they have tried to change the methodology and aim to do a better job in reviewing the requests and thus make more progress at the administrative stage. But that continues to be a source of concern.
Based on the figure of 4.9%, if things continue this way, will there be any significant progress?
We have to get back to the fact that in this first year there are better channels of communication with the Land Restitution Unit. They have furnished information and discussion about their four-year objectives and goals. We understand that this year they have made some necessary changes to improve the quality of their results. Although right now the statistics are worrisome, we in the organizations are optimistic that things will change in these four years. The current goal is an objective that the government proposed in the administration of President Juan Manuel Santos, and that has been the yardstick we have followed and will continue to follow.
We noticed that the Yule administration has made a great effort to receive more requests, and to re-assess and push forward some requests that have been denied. Why was the rate of denial so high in the Duque administration?
We in the organizations have paid close attention to the percentage of denials, because that represents a denial of access to justice for the victims who are hoping for a resolution of the conflict for land. The statistics shown for the first period of President Duque’s administration are worrisome because they show that around 65% or 70% of requests were denied and only 30% of all requests were even accepted into the registry system.
We are glad that these statistics have turned around, and we believe that In the first period of the Petro administration denials have been reduced to 35%. We in the organizations understand that they did not very much consider the accomplishment of the goals that the Unit should bring into the registry system. They even counted their restrictions as a goal they had accomplished. That means that their figures come ahead of the people’s rights. This has been a change that we are pleased to see.
But neither can we conclude that everything is going well . . .
Of course not. We emphasize three points that the interior of the Unit must carry out in an expedited manner to guarantee the speed and the accomplishment of the rights to restitution. We are talking about administrative restitution. This is a battle that we have been fighting for a long time. We understand that a good option for guaranteeing speed would be to allow the Unit some jurisdictional functions, so as to be able to conclude those cases where there is no opposition. Up to now, it’s the judges who determine that, but this authority could be handled by the Unit. This is a change in the Victims’ Statute that is being discussed now in the Congress.
A second measure would be the elimination of microtargeting. One of the Foundation’s workhorse arguments has been to say that giving the Armed Forces the power to decide when property should be turned over, or to perform other administrative tasks has limited the Unit’s activities in a number of territories. We rejoice that Decree 1623 was issued last month, in October. The Decree establishes that the Unit can decide when it will enter a territory, without any need for permission from the Armed Forces.
And finally, the Unit needs to be able to use more technological implements, such as drones, tele-detection, and satellite systems for measuring parcels of property. The methods being used now don’t permit progress in administrative procedures to the extent that the victims of the conflict are hoping for.
But if not with the Police or the Army, how can we get to Urabá or to Córdoba?
It’s evident that the Armed Forces don’t have the capacity in numbers of personnel to carry out the activities that the Unit needs and still carry out the institutional activities of the Armed Forces mission. They have explored options in which the victims and local organizations can coordinate with the Unit on conditions existing in the territories where they have to carry out restitution activities. We have called attention to the fact that the Unit doesn’t go into the countryside, but we have other agencies like the Victims Unit or the National Land Agency, that have been able to carry out their activities.
The problem is not because of the willingness of the Restitution Unit, but with the ideas of security that they are hearing from the Armed Forces, which are not always in sync with what’s going on in the countryside. We don’t disregard the dynamics of the conflict and the way it fluctuates, but the idea is precisely that different kinds of civilian organizations can participate in these dynamics, and that the Unit could read those concepts, better yet when the people are directly in the countryside and can guarantee accompaniment.
The report doesn’t mention the number of judges or justices, but it does establish a bottleneck at the judicial stage, which depends on them. Why doesn’t the report mention something about this?
Right now we believe that in effect there is a backward step and a state of legal congestion in those offices, but we are definitely emphasizing the work on the administrative stage. We believe that the three measures identified above, which will be within the Unit’s authority, will make it possible for the judges and justices to handle the cases in which there is opposition, where there is a controversy over the titling of the property.