Comunicado No. 20. Corte Constitucional. Mayo 11 y 12 de 2016
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VI. DOCKET T 3098508 - SENTENCE SU-235/16 (May 12)
M.P. Gloria Stella Ortiz Delgado
The Constitutional Court Plenary protected the fundamental rights to due process, a dignified
life, work and housing under dignified conditions for the members of the plaintiff association
“ASOCOL,” and extended the protection to members of the association “ASOCADAR” and
other people displaced from the former Hacienda Bellacruz.
The plaintiffs requested that the judge order INCODER and the Ministry of Agriculture to carry
out an agrarian process to recover improperly occupied fallow lands on seven properties.
These lands were declared fallow in Resolution 1551 of 1994, ending a process clarifying
property ownership. Additionally, the campesinos1 asked that, once the recovery process was
underway, these fallow lands be adjudicated to the rural population that had lived and was
later displaced from the Hacienda Bellacruz. During the process of the tutela 2 action,
INCODER carried out the recovery process for fallow lands, declaring them improperly
occupied. However, it subsequently annulled not only the recovery process but also the
clarification of ownership of the lands it had declared fallow.
As to the provenance of the tutela action, the Court determined that other means of judicial
defense were unsuitable, since they do not satisfy the plaintiffs’ claims. Thus, the tutela met
the requirement of subsidiarity. The Court also sustained that, as an association that groups
people displaced from the former Hacienda Bellacruz, ASOCOL has standing to file this suit on
behalf of its members. Furthermore, it considered that this case complied with the immediacy
requirement, which should be understood flexibly in cases of forced displacement such as
this.
Regarding the merits of the case, the Court began by deciding whether it dealt with fallow
properties, in order to determine whether the plaintiffs had the right to adjudication of said
lands. The Court concluded that, according to INCORA’s Resolution 1551 of 1994, the
properties had never left state assets, since the institution had declared them fallow.
Although INCORA had not requested a record of this resolution from the Office of Public
Instruments, the lack of a record does not alter the fallow condition of these properties nor
does it make it unenforceable against third parties, in accordance with Decree 1265 of 1977,
Article 5, among others, which was in force at that time.
Furthermore, to establish whether the plaintiffs had the right to adjudication, the Court held
that they only had the right to adjudication of the fallow estates that complied with the
objective and subjective requirements as per Law 160 of 1994. There is no evidence on file of
which plaintiffs currently meet all these requirements. The Court therefore cannot conclude
who has the right to adjudication. However, nor can it fail to recognize that these campesinos
have been requesting the adjudication of these fallow lands for more than twenty years, and
that as a result, they were the victims of forced displacement. Furthermore, that INCORA
committed to adjudicate the matter but could not comply due to paramilitary violence against
officials who were going to begin the necessary proceedings for adjudication, as well as
against campesino leaders.
To that extent, the Court considered the recent actions of the Superintendence for Notaries
and Registries of not registering the resolutions declaring the lands as fallow and improperly
occupied, alongside INCODER’s actions annulling the property clarification process and that of
improperly occupied fallow land. These last two issues in particular alter the fallow nature of
these properties, frustrating campesinos’ expectations regarding the properties’ adjudication.
Accordingly, the Court annulled INCODER Resolutions 334, issued February 19, 2015, and
5659, issued October 14, 2015, and ordered the resumption of the recovery process for
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Small rural farmers
An expedited legal mechanism in Colombia to protect constitutional rights
Comunicado No. 20. Corte Constitucional. Mayo 11 y 12 de 2016
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fallow lands that INCODER Resolution 481 of 2013 had identified as improperly occupied, to
complete their adjudication.
Finally, the Court concluded that there is sufficient evidence that the members of the
association filing suit are not the only victims of forced displacement from Hacienda Bellacruz.
Accordingly, it concluded that the case met the Constitutional Court’s jurisprudence
requirements to apply inter communis3 effects.
As a result of all of this, the Court ordered the Director of the National Land Agency to begin
the necessary arrangements to: a) identify the claimants to the fallow land that were
dispossessed from the former Hacienda Belllacruz; b) establish which of them meet the
subjective requirements to be awarded these fallow lands, in accordance with Law 160 of
1994 and the rules that regulate it and c) begin the material division and subsequent
occupation of the fallow lands, in accordance with the applicable regulations regarding Family
Agricultural Units in the area. This process should be completed within a year, starting from
the notification of this ruling. Furthermore, the Court ordered the Superintendent of Notaries
and Registrations to cancel the respective property registries of plots that INCODER
Resolution 481 of 2013 had identified as improperly occupied.
However, the Court also concluded that, under the rules of Law 160 of 1994, certain plaintiffs
and others displaced from the Hacienda Bellacruz may not comply with the requirements to
be awarded fallow lands. However, this does not mean that they were not victims of
dispossession or the forced abandonment of their lands, insofar as they were displaced from
Hacienda Bellacruz. It therefore ordered the Land Restitution Unit, along with the Ministry of
Defense and the National Army, to begin, within twenty (20) days of the notification of the
present case, all necessary proceedings for the administrative stage of the land restitution
process for campesinos that can prove they were victims of displacement from the former
Hacienda Bellacruz.
Dissenting and Concurring Opinions
Judge Luis Guillermo Guerrero Pérez departed from the majority decision because,
despite sharing the duty of protecting the victims of displacement and violence, he believes
the tutela is not the appropriate means of protection, since the issue under discussion was
not displacement; rather, whether the lands currently occupied by individuals with properly
registered property titles were fallow. The law has provided an administrative and judicial
process for this issue, within which the judicial controversy can be elucidated, with
guarantees of due process for all parties and individuals entitled to intervene.
Judge Guerrero Pérez believed that the majority decision had supplanted the administrative
and judicial process, affecting all parties’ due process rights. In spite of this consideration, he
argued that since the Court had decided to review the tutela and assume the very process of
clarifying property ownership and recovering fallow lands considered improperly occupied by
individuals, it should have covered all facets of the problem, which would have led to a
different decision than the one adopted by the Court. The judge added that, in any case,
there should have been an express valuation of the purchasers acting in good faith, based on
the facts of the property records that are subject of these proceedings.
Judge María Victoria Calle Correa announced that she wholly agrees with the majority
decision and would present a concurring opinion related to one of the aspects analyzed by
the Court that was considered the basis for protecting fundamental rights.
MARÍA VICTORIA CALLE CORREA
President
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A legal principle by which a legal ruling and its protections apply not only to the plaintiffs filing the
tutela action but to the larger group to which they belong