Return within the bounds of the Pinheiro principles: the Colombian land restitution experience. (IV. The Ley De Victimas through Conclusion, with footnotes, p. 24-53)

• Published date: 01 January 2012
• Author: Attanasio, David L.,Sanchez, Nelson Camilo,Attanasio, David L.^Sanchez, Nelson Camilo
• Date: 01 January 2012

IV. THE LEY DE VICTIMAS

In this section, we will describe in more detail the land restitution design that the Ley de Victimas establishes to address the problem of restitution in Colombia. According to the final legislation, the Ley de Victimas creates a restitution program that generally complies with the Pinheiro Principles. Most importantly, the Ley de Victimas establishes a judicial presumption that people who transferred property in an area of generalized violence did so because of the violence: (154) a current occupant of the property who opposes the restitution claim must prove his or her good faith and lack of fault in occupying the land. (155) Those eligible for restitution under the terms of the Ley include anyone deprived of property rights by an illegal, armed group since 1991. (156) Eligibility for the favorable burden of proof under the Ley de Victimas is limited to those people who lost their property, possession, or occupation rights (157) as a direct or indirect consequence of international humanitarian law violations or grave and manifest violations of international human rights law. (158)

Restitution under the Ley de Victimas will occur through a specialized judicial process. (159) To apply for restitution under this process, a dispossessed person must add their lost property rights to the Registro de Tierras Despojadas (Registry of Dispossessed Lands) ("Registro"). (160) Restitution will then proceeds through an administrative agency, the Unidad Administrativa Especial de Gestion de Tierras Despojadas (Special Administrative Unit for the Management of Dispossessed Lands) ("Unidad Administrativa"), (161) which will oversee the Registro and submit the entries to a judge with specialized experience in restitution proceedings. In the absence of such a judge, any judge with original jurisdiction may hear the case. (162) A person who adds their property rights to the Registro also will have the ability to submit their claim to a judge independently of the Unidad Administrativa. (163)

The judges will carry out the central task of the restitution program: determining whether a particular property can be restored despite opposing claims of good faith property rights, and if not, what alternative remedy is warranted. (164) The judicial proceedings are intended to be efficient and short, with less than four months between application and judgment. (165) The presiding judge is supposed to resolve all claims about land titles, even when the dispossession did not follow a standard pattern. (166) When granting restitution, the judge should also evaluate any claims for compensation made by a good faith secondary owner, possessor, or occupant dispossessed as a result. (167) If the judge decides in favor of restitution, then the Unidad Administrativa will typically restore the dispossessed property to the claimant. (168) There is no option for an administrative resolution of uncontested restitution claims, unlike under the now defunct Programa design. (169)

Under certain circumstances, the judge presiding over the restitution proceeding may grant compensation to either the claimant or defendant. (170) The Ley de Victimas strictly limits the reasons for granting compensation to victims instead of restitution, thereby definitively establishing restitution as the preferred remedy for dispossession and reducing the financial burden of resolving many cases. (171) In general, the judge may only grant the victim compensation instead of restitution on the victim's request, (172) implying that the judge may not force compensation upon a victim. The recipient is entitled to one of two different types of compensation, monetary compensation or compensation in kind, either of which need to be equivalent in value to the original property lost. (173) First, a victim may receive as compensation in kind a plot of land similar to that lost, which the Unidad Administrativa will provide. (174) Under Ley de Victimas, a judge may grant compensation in kind when (1) the land is within a zone of risk for natural disasters, (2) when multiple people have been dispossessed of the same land, (3) when the legal or material restitution of the land would create a risk for the victim or her family, or (4) when the land has been completely destroyed. (175) Second, a defendant who succeeds in proving her good faith rights to the land absent any fault may be granted monetary compensation from a fund that the Unidad Administrativa will administer. (176) The number of secondary occupants with compensation claims is reduced by excluding claims from people involved in the original dispossession or who knew about it. (177)

The Unidad Administrativa will be the primary administrative body overseeing restitution, coordinating the various stages of the proceedings and transfers of land and compensation. (178) It will administer the Registro de Tierras Despojadas, advance the restitution process, pay compensation to secondary occupants and dispossessed persons, and subsidize the payment of taxes on restored lands. (179) It will also oversee the Fondo de la Unidad Administrativa (Administrative Unit's Fund) ("Fondo"), which will contain the resources necessary to cover the costs of the program, including compensation. (180) Resources for the Fondo will come from the national budget, public and private donations, other ministries, from goods confiscated (via extincion de dominio) by the Direccion Nacional de Estupefacientes (National Drug Board), and from similar sources. (181) The Unidad Administrativa will not oversee the return process nor any support programs for returning victims, apart from those granting victims subsidies for taxes and other debts encumbering a restored property. (182)

In a gesture toward improving the social effects of land restitution, the Ley de Victimas has two important provisions. First, the restored land rights are protected by making it impossible to transfer those rights for two years, except through inheritance, without the authorization of the court that granted the restitution. (183) Second, the Ley de Victimas creates a special attention program for female victims of dispossession to ensure their access to restitution. (184) The program consists of priority consideration of land restitution applications by female heads of families, (185) priority in receiving a number of previously granted social benefits, (186) and entitlement to receive joint restitution of land along with husbands, (187) presumably even when only he held legal title prior to dispossession.

While not part of the restitution effort, the Ley de Victimas does establish several complementary social programs for all victims of the armed conflict. It creates separately administered means of housing restitution for those victims who lost their housing by allowing victims who lost their housing to apply to the Subsidio Familiar de Vivienda (Family Housing Subsidy), which is funded by the Fondo Nacional de Vivienda (National Housing Fund) for urban housing and the Banco Agrario (Agrarian Bank) for rural housing. (188) The Ley de Victimas also provides access to various health services for all victims of the conflict. 189 Additionally, it grants victims support for payment of taxes and other debts encumbering a restored property (190) as well as access to programs to aid with obtaining credit. (191) These resources are helpful because such liabilities encumbering property have been used to dispossess a victim who was forced to flee his or her property because of violence. (192) Finally, it provides some support for education and professional development; victims will have guaranteed access to basic education as well as higher education institutions are instructed to facilitate victim access. (193) Victims also have priority access to programs sponsored by the institution for the professional development of the Colombian workforce, or SENA. (194) Additionally, they have preferential access to government employment. (195) By comparison, the now defunct Programa design also would have created programs for the economic development of returning people, (196) including job training, (197) support for developing professional associations, (198) grants or loans for vocational projects, (199) and priority access to INCODER land grants. (200)

Beyond the components of the restitution program itself, the Ley de Victimas establishes several institutions that will coordinate and oversee the effort to aid all victims of the Colombian armed conflict. The Sistema Nacional de Atencion y Reparacion Integral a las Victimas (National System for Comprehensive Attention and Reparation for Victims) (201) is comprised of the Comite Ejecutivo para la Atencion y Reparacion alas Victimas (Executive Committee for Attention and Reparation for Victims) ("Comite Ejecutivo") (202) and the Unidad Administrativa Especial para la Atencion y Reparacion Integral alas Victimas (Special Administrative Unit for Comprehensive Attention and Reparation for Victims) ("Unidad Administrativa Especial"). (203) These bodies have split competencies for assisting the victims of the armed conflict: the Comite Ejecutivo is a centralized body primarily responsible for large scale planning, (204) while the Unidad Administrativa Especial is primarily responsible for the decentralized implementation of programs for the victims. (205) The hierarchy and lines of responsibility for these institutions within the overall program are not specified, (206) nor is their relationship to the restitution process and the Unidad Administrativa, (207) leaving unclear what relationship the Ley de Victimas establishes among these institutions.

V. COMPLIANCE WITH THE PINHEIRO PRINCIPLES

While largely in compliance with the Pinheiro Principles, the Ley de Victimas has features that may conflict with the requirements of the Pinheiro Principles. First, the Ley de Victimas excludes restitution...