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Insurmountable Barriers?

Aaron Acosta and Camilo Sánchez | Published on December 14, 2021

Project: Land Reform, Peace and Informal Institutions

The policy-research project conducted by hub members Aaron Acosta and Camilo Sánchez aimed to shed light on the concerning phenomenon of high application rejection rates by Colombia’s Land Restitution Unit, where victims of land dispossession and forced abandonment can apply for restitution of their lands lost as a result of the armed conflict. This brief sets out some of the details and findings of their research and closes with a set of recommendations for key stakeholders involved in the implementation of the land restitution policy. The importance of the policy-research project was heightened in 2019 when the Colombian Constitutional Court decided to extend the mandate of the land restitution policy for 10 more years, until 2031. This welcome news has brought with it hope that the next 10 years of the land restitution policy will fare better than the first 10 years, which ended in June 2021. 

During the past 10 years, under a transitional justice framework, Colombia has sought to implement a series of measures to confront the brutal effects of the armed conflict regarding property and land tenancy. In 2011, the government enacted Law 1448 (The Victims and Land Restitution Law) to tackle these historic injustices and human rights abuses and to lay the groundwork for a possible peace agreement (which was reached between Colombia and the FARC in 2016).

Under the land restitution policy, victims of land dispossession and forced abandonment are promised restitution of their lands, a policy which was conceived to deal with the atrocious effects of the forced displacement of more than 15 per cent of the country’s population during the armed conflict, as well as with the historic concentration of land in the hands of the elite. Additionally, the land restitution policy was promoted as a measure to confront the chronic weakness of official institutions in rural areas. Indeed, this transitional justice process promised that the new institutions created by the Law would be distinct from former State institutions, thereby guaranteeing justice and contributing to real transformation regarding property and land tenancy.

Under the land restitution policy, victims of land dispossession and forced abandonment are promised restitution of their lands, a policy which was conceived to deal with the atrocious effects of the forced displacement of more than 15 per cent of the country’s population during the armed conflict, as well as with the historic concentration of land in the hands of the elite.

Far from reaching its transformative aspirations of ameliorating the precarious situation for millions of victims of the Colombian armed conflict, the land restitution process, enacted through Law 1448 of 2011, has had only a marginal impact. In large part, these failures can be attributed to problematic implementation of the land restitution policy’s institutional design, which is divided into an administrative and a judicial step, the former being a prerequisite for the latter. The design sought to promote administrative efficiency by creating an administrative step in which land restitution applications and corresponding documentation would be collected and processed by an administrative governmental agency, the Land Restitution Unit (Unidad de Restitución de Tierras – URT). The URT would decide if the application met the basic requirements to be included in the Land Registry, and only after this step could the applicant present their case to a specialised land restitution judge in the judicial step.  

Instead of facilitating the collection and processing of information and applications, the administrative step has, for thousands of victims of land dispossession and forced abandonment, become an insurmountable barrier in their quest for land restitution. Consequently, as a result of the URT’s faulty and opaque implementation during the administrative step, the land restitution policy’s potential to be an effective instrument for resolving land restitution applications, as well as to become a transformative transitional mechanism, has been largely wasted.

After 10 years of implementing the land restitution policy and with millions of victims of forced displacement registered, only 26,940 (20.6%) cases made it before a judge.

The limited available evidence shows that, after 10 years of implementation, the percentage of land restitution applications that have been included in the Land Registry – a requirement for moving forward in the process – is minimal (25%). In fact, this percentage is so low, that it should have sounded the alarm and generated an interest in the administration for understanding this phenomenon years ago. Unfortunately, this did not happen. As a consequence, the reason for such a limited success rate for applicants in a transitional process meant to be flexible and pro-victim, is one of the biggest unanswered questions related to the implementation of the land restitution policy.

By the end of June 2021, the URT had received 130,606 land restitution applications, but had only resolved 92,255 (70.6%) of them. Of the 32,286 applications which were included in the Land Registry, only 26,940 had been presented before specialised land restitution judges (the second step in the process). In other words, after 10 years of implementing the land restitution policy and with millions of victims of forced displacement registered, only 26,940 (20.6%) cases made it before a judge, who would later decide whether to restitute the land in question. Moreover, in this period, only 170,042 hectares had been restituted, out of the millions of hectares of dispossessed or abandoned land resulting from forced displacement. Unfortunately, there is no consensus regarding the total number of hectares in Colombia dispossessed or abandoned, but the three most popular studies have put the number between 1,200,000 and 10,000,000 hectares. Therefore, in the best-case scenario, after 10 years of implementation, the land restitution policy would have restituted 14.2% of land eligible for restitution, and in the worst case, only 1.7%. In either case, the land restitution policy’s impact has been marginal.

One of the most egregious problems present in the implementation of the land restitution policy is the mass rejection of thousands of applications by the URT during the initial stage of the process. Specifically, 65% (59,969) of applications with a final decision have been denied inclusion in the Land Registry, thereby terminating the process for these applicants.

Furthermore, one of the most egregious problems present in the implementation of the land restitution policy is the mass rejection of thousands of applications by the URT during the initial stage of the process. Specifically, 65% (59,969) of applications with a final decision have been denied inclusion in the Land Registry, thereby terminating the process for these applicants. Despite the fact that the majority of applications have been rejected by the URT, there is little public information that helps explain these abysmal results or records the reasons the decisions were taken. In fact, the URT did not keep a record for the reasons it denied land restitution applications until June 2019, eight years after the process began.  

In this context, Acosta and Sánchez undertook a policy-research project aimed at drawing attention to this problem of mass rejection of land restitution applications and presenting some of the reasons for this concerning phenomenon. Additionally, they propose a set of recommendations for key stakeholders involved in the implementation of the land restitution policy.

Application Denials

Through a review of the available information during the policy-research project, there appeared to be three principal types of application denials.

  • First, the URT rejected a significant number of applications during the initial step of the process, before a detailed evaluation of the evidence presented. Often, these types of rejections have been based on additional requirements created by the URT, which are not included in Law 1448 of 2011.
  • Second, about 20% of the rejected applications were the result of the application of a Colombian legal concept known as “withdrawal” (desistimiento). In such cases, applications could have been withdrawn “expressly” by the applicant or “tacitly” by the URT if the applicant failed to respond within the allotted time period. Even though the Constitutional Court ruled that neither express nor tacit withdrawals should be permitted in the land restitution process, the practice seems to be widespread, and there is no information that distinguishes which withdrawals were express and which were tacit.
  • Lastly, the URT has rejected a large number of applications after an in-depth analysis of the specific cases. However, the policy-research project shows that, in many cases, the URT had not followed the precedent or jurisprudence established by the Constitutional Court or by the special land restitution jurisdiction. In many of these cases, the decisions had been based on erroneous interpretations of complex legal concepts, which should have been decided later on by the special land restitution jurisdiction. 

Moreover, the widespread rejection of land restitution applications is not an isolated phenomenon relegated to a certain period or region of the country but has instead been pervasive in all parts of Colombia during the past 10 years. Additionally, the research finds the following:

  • The rate of rejected applications varies across the national territory, both at the departmental and municipal level, which tends to show that in certain zones, there may be irregularities in the URT’s decision making.
  • The resolution of land restitution applications often takes a long time; on many occasions, the URT surpassed the maximum allotted time in which it must decide on an application, thereby violating victims’ rights.
  • The URT has issued and maintained regulatory provisions that have created more burdensome requirements to be included in the Land Registry than those established in Law 1448 of 2011.
  • The URT has taken erroneous decisions that contravene established precedent regarding certain legal concepts; due to the nature and complexities of such legal concepts, these applications should have been decided later on by the specialised land restitution jurisdiction.
  • Some applicants were not provided with effective legal counsel during the administrative step in the land restitution process.

Lastly, the policy-research project concludes that there exists neither adequate judicial review over the URT’s decisions, nor effective judicial recourse for the victims whose applications have been rejected. Out of the 59,969 rejected applications, as of March 2021, there had only been 95 appeals launched in the Contentious-Administrative Jurisdiction, the only jurisdiction that can review these rejections. In other words, only 0.16% of all rejected applications have been subject to judicial review, and only in two cases, were the applicants successful.

Given the gravity of this problem, it would be both premature and absurd to continue implementation as if the land restitution policy is finished or about to finish. In order to achieve impactful land restitution, that is both transitional and transformative, and to guarantee the right to restitution for thousands of victims, a profound change is needed in the implementation of the policy. 

Policy Recommendations

Thanks to the 10-year extension of the land restitution policy, Colombia has a unique opportunity to change the course of where the policy has been heading during its first 10 years. In order for the next 10 years to not become a lost opportunity, Acosta and Sánchez propose a set of recommendations. The majority of their proposals can be grouped into the following two overarching recommendations:

  1. Important and extensive changes in the land restitution policy must be made to ensure a robust implementation that guarantees the rights of victims and contributes to the transformative impacts for which the policy was conceived. Specifically, the URT should review its policies and regulatory framework and make appropriate changes where necessary to ensure a victim-centered approach to land restitution; all cases of doubt should be resolved in favor of the victims. Additionally, the URT should eliminate its practice of applying withdrawals to land restitution applications, since the Constitutional Court has already ruled against this. The URT should also guarantee transparency in its decision making and publish information related to the implementation of the policy, except in exceptional cases in which it is impossible to guarantee the anonymity of the victims concerned.   
  2. A comprehensive review of rejected applications must be undertaken, in order to determine whether victims’ rights have been violated, and where violations are found, immediate and appropriate action must be taken to ameliorate the situation. This review should take into account the varying dynamics of the phenomenon of denials, both regionally and temporally. In the case of application rejections constituting violations of victims’ rights, the URT should expeditiously revoke the denials and include such applications in the Land Registry. Additionally, the URT should take appropriate measures to combat the adverse effects suffered by applicants as a result of the rejection of their applications.

If the land restitution policy continues on the same course of rejecting the majority of applications without judicial review, its contributions to guaranteeing truth, justice, reparations, and non-repetition for victims and for Colombian society will only be marginal, and Colombia will miss an opportunity to construct a historical record of the violent impacts of land dispossession and forced abandonment suffered by countless Colombians during the armed conflict.

You can read the full brief in Spanish also here .

Image credit: UN Women (CC BY-NC-ND 2.0)

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