La restitución de tierras bajo la lupa. El caso de Agroindustrias Villa Claudia

En este episodio hablamos sobre la restitución de tierras. Más específicamente, de cómo la Corte Constitucional ha venido cambiando la forma de interpretar el despojo de tierras. Esto lo ha hecho por medio de la revisión de tutelas interpuestas por quienes no lograron demostrar conductas diligentes al momento de adquirir predios  ubicados en zonas de guerra. El caso de estudio es Agroindustrias Villa Claudia en el municipio de Simacota, Santander. 

invitada: Nury Martinez

Episode Transcript

(00:00):
Conflicts over the land of indigenous communitiesoccur in several regions of the country.
One million hectares of forest have beendeforested in Colombia in the last twenty-
eight years as a result of drugtrafficking, illegal mining and the excessive use
of land for livestock. The secondjudge of restitution of land of an antioque
section threatened to send to the prosecutiona victim for claiming his rights before his

(00:25):
office, how about this is tiredof hearing this for years. You knew
that in Colombia one percent of thepopulation occupies eighty- one percent of the
land, while ninety- nine percentof the land is blamed by the other
nineteen percent of the population. Iknew that only twenty- six percent of

(00:47):
the productive units are headed by women. A radio rosary and the Earth Observatory
present with their feet on Earth aspace to expand the dialogue on Colombian property
and countryside. The present episode ofhis feet on Earth was recorded before the

(01:25):
Constitutional Court ruled on the nullity incidentthat weighs on the sentence that one hundred
and sixty- three of two thousandtwenty- three. Although to date we
do not know the specific content ofthe order that decides this incident, the
media have advanced that the Court optedfor the annulment of the judgment for procedural
defects in its deliberation. However,from the Observatory of Lands and the legal

(01:49):
clinic of Agricultural Property restitution of landand victims. We believe that this space
of deliberation is crucial for the understandingof the process of restitution of time and,
above all, to be manifest thefragility to which it is exposed to
restitution as a fundamental right of thevictims before the judiciary and the State.
Therefore, the publication of this episoderetains its initial importance, despite the fact

(02:15):
that the annulment of the sentence hasbeen successful. A greeting to all the
listeners of Bogotá, Colombia and theworld welcome to our Pies en la Tierra

(02:35):
program, carried out by the Observatoriode Tierras en Alianza and broadcast by the
institutional station of the Universidad del Rosarioby Rosario Radio. My name is Maria
Paula Lucena. I am a lawstudent at the Universidad del Rosario and an
active member of the Legal Clinic ofAgrarian Property, Victims and Land Restitution.
I am joined today at the NuriMartínez table, drowned by the Colombian Commission

(02:57):
of Jurists, Manuel López and NicolásAguas, who are, like me,
law students and members of the clinic. At the Master' s Control.
Nelson Duarte will be accompanying us andin the production of this episode Carolina Crosby
and in the Directorate General of theradio station Mario Castro. Remember listeners who
can listen to us through our websitewUro Rosario Radio com as well on broadcast

(03:20):
platforms such as Speaker, Spotify,Diezer Radio, Garden and Apple Podcast,
where they can access and download allepisodes. Remember also to follow us on
our social networks, on Twitter weare found as lands ruffo observes and on
Facebook we are as Facebook com slashlands observes welcome and welcome to with your

(03:55):
feet in the store to the observatoryof strips. You can follow it on
Twitter and Facebook as it overflows observedlands. Today we are going to talk

(04:18):
about land restitution more specifically about howthe Constitutional Court has been changing the way
it interprets land dispossession in Colombia.This has been done through the review of
wards filed by those who failed todemonstrate diligent behaviour at the time of acquiring
properties located in war zones. Butbefore we start, manuel tell us briefly

(04:40):
what land restitution is. Please,thank you very much, Maria Paulo.
A greeting to all in a nutshell. Land restitution is a process through which
the State seeks to return the landto those who lost it because of the
violence. To further this, theland claimants must submit an application to the
land restitution unit, whichever is responsiblefor investigating and documenting each of the cases.

(05:02):
The Unit or a trusted legal representativeof the victims will then file a
complaint with a land restitution judge,who will make the final decision. Many
of the processes involve people or companieswho oppose restitution because they argue that they
acquired the land in good faith freeof guilt and will have to prove it
throughout the process. These people arecalled opponents to prove that eptoron is a

(05:26):
flex of guilt. Opponents must checkseveral things. First, they had no
direct or indirect link to the actsof violence, Second, which fulfilled all
the legal formalities to acquire the landand paid their taste price and third,
which acted with extreme diligence when verifyingthe origin of the property and the chain
of transfers to identify possible and regularities. In general terms, they must demonstrate

(05:48):
that they did not take advantage ofa generalized context of violence or of the
vulnerability of two claimants to acquire theclaimed property. In such cases, the
restitution judge must first decide to recognizethe fundamental right to restitution of land for
the claimants and, secondly, ifthe opponent proves that he acquired the property
with good flexion of guilt and,consequently, order an economic compensation. Otherwise,

(06:12):
the opponent loses all rights to theproperty and must return it to the
claimants. Thank you very much,Manuel, already in this context, I
think it is possible to pass nowyes, to talk a little bit about
the specific case that we carry fromthe Observatory and that we have been studying
very carefully. Manuel. Please tellus a little bit about the case involving

(06:32):
Agroindustrias Villa Claudia. Of course,Maria Paula is. This case began in
two thousand thirteen, when a coupleof husbands claimed the restitution of a property
located in a municipality of Simatota Santander. The claimants argued that they sold their
property as a result of the actsof violence that they suffered between one thousand
nine hundred and eighty- eight andone thousand nine hundred and ninety. Specifically,

(06:54):
this couple lived the murder of theirson in a thousand nine hundred and
eighty- eight, that of theirtwo nephews in a thousand nine hundred and
eighty- nine and the constant threatsby the army for being members of the
Patriotic Union political party. Let usremember that the members of this party were
viciously persecuted to the point that theInter- American Court of Human Rights condemned
the Colombian State for the extermination ofmore than six zero members of this party.

(07:16):
In any event, the Land RestitutionUnit filed the Application Tribunal de Restoración
de Tierras de Cúcuta in the nameof the claimants in the course of the
process, the Agroindustrias Villa Claudia company, dedicated to agro- industrial cultivation in
Palma, presented itself as an opponentbecause it was the owner of the property.
At the time of the request forrestitution, this company argued that it
purchased the property at two thousand eightand that it was not aware of the

(07:40):
victimizing events that affected those claimed.The company also indicated that it had investigated
with some people the situation of violencein the region and that, despite being
this notorious, this violence did notpersist at the time of the purchase of
the property. A key fact forthe Tribunal was that the certificate of treason
and freedom showed suspicious increases in theprice of land by the appearance of two

(08:00):
sales that occurred on the same day, on March 8, two thousand ten.
The last of them was the onethat transferred ownership of the property to
the opposition society. You' relistening with your feet on the ground.

(08:46):
Thank you very much. Now givingNicolas the floor a little bit, tell
us what was the specific decision ofthe Tribunal in this case. A greeting,
Mary Paul to all listeners. Inthis case, the Court of Cúcuta
granted the claimants the right to restitution, but it did not accept the arguments

(09:07):
of the opposition company, i ethat Bro Industrias Villa Claudio failed to prove
that standard of good faith free offault I applied by Manuel and for this
reason the judge did not order aneconomic compensation for the nar river. The
company did not prove to have acteddiligently, as the history of violence was

(09:28):
evident. The municipality where it waspreviously located. Furthermore, the Court did
not find that the testimonies provided bythe company, which were from the owner
of the property, that of aworker of the same company, including his
own legal representative, were sufficient todemonstrate that they did everything possible to rebuild,
on the one hand, the procurementchain and, on the other hand,

(09:52):
to identify the reasons that led theclaimants to sell the property. Well,
we know the story doesn' tend there. No Nicolás, tell
us, what happened next. That' s Maria de Paula. The company
filed a tutelage arguing that the victimizingacts that caused the dispossession occurred between ninety

(10:15):
- eight and ninety and that thelaw only recognizes restitution for cases that occurred
after one thousand nine hundred and ninety- one. The company also argued that,
between one, it incorrectly assessed theevidence provided to crucios. This tutelage
was ruled by the Supreme Court ofJustice both first and second instance. On
both occasions, the Supreme Court agreedwith the Copa Court and recognized that the

(10:41):
judgement was the result of a reasonableanalysis of the evidence and the requirements for
proving good faith free of cool.In addition, the Supreme Court recalled that
guardianship cannot be used to reopen withjudicial provisas and impose the criterion of probatory
evaluation of the peace that it hadlost in the project. But despite this,

(11:03):
the Constitutional Court selected the tutelage,which involved a new scenario to review
the ruling of the Rio a GoodArt. Thank you very much to Nicolás
and also to Manuel. Now Iwant to ask Nuri, who is the
closest person to the case, ifhe can tell us a little more about
what happened when the court selected guardianshipand he is behind this decision to select

(11:28):
it. Thank you. We,from the Colombian Commission of Jurists, are
close to this process because in theyear two thousand and eighteen, in a
case of restitution of lands that weaccompany, which is the case of the
Franciscas, the order was given bythe Court of Cartagena to restore about forty

(11:50):
- nine peasant families in the bananazone of Magdalena. However, in the
opposition company in this case, whichis the francisca, zás, from a
maneuvers that we consider are not attachedto the law. In the year two
thousand nineteen he instituted twenty- oneactions of Guardianship and one of these actions

(12:13):
of Guardianship managed to arrive in sederreview to the Constitutional Court. Thus,
in the year two thousand twenty-one, in the month of May,
we knew that the magistrate who wasto know about this action of Guardianship in
being reviewed was to be Alejandro LinaresCantillo. Thus, from the year two
thousand twenty- one, in themonth of May, we learned that Judge

(12:35):
Alejandro Linares Cantillo made the decision toselect and accumulate the two actions of Tutela.
In relation to the Villa Claudia caseand in relation to the Franciscas case,
we submit a request to the ConstitutionalCourt. It is asking for information
about what the criteria for accumulating thesetwo cases were. I must say that

(13:00):
we received an answer from the Court, and only until the month of May
of two thousand and twenty- three. That is, two years later,
we met a statement of the judgmentof that one hundred and sixty- three
of two thousand twenty- three,which is the ruling of the Constitutional Court,
the application of the case of VillaClaudio, of Industrias Villa Claudia.
In that regard, we again requestedthe Court to give us the reasons for

(13:28):
the decumulation raised in that communiqué,but we did not get a reply.
In the year two thousand twenty-three, in December we were notified via
e- mail of the Constitutional Court' s ruling of guardianship of irrevision,
where it was evident that there wasa decumulation of the two trials. Well,

(13:52):
since Nury comments on the sentence thatbus one hundred and sixty- three,
which is where the Constitutional Court decidesthis case last year, Manuel Please
tell us, what was the concretedecision of the Good Court, Maria Paula.
First, the Court found that theCourt had acted in accordance with the

(14:13):
law by recognizing the fundamental right ofrestitution of land to claimants and gave a
favourable interpretation of the dates on whichthe acts of violence occurred. Thus,
the Court recognized that there were severalevents between one thousand nine hundred and eighty
- eight and one thousand nine hundredand ninety- one that led the claimants
to sell and there that are fullyprotected by the period established by the Victims

(14:33):
and Land Restitution Act. But thecourt did more than that. Maria Paulo,
contrary to the judgment of the Courtof Cúcuta, the Constitutional Court acknowledged
that the company sowed industries Villa Claudiadid prove that it had acted with good
fexenta of guilt and, consequently,ordered the Colombian State to pay an economic
compensation. In addition, María Paula, the Court communicated these issues through a

(14:54):
unification judgment and of remembering that thisis a type of thing that the Court
uses exclusively when it finds that itis necessary to unify the criteria for the
interpretation of the law, because thejudges are interpreting the rules in a very
different way. I think this lastone mentioned by Nicholas is very important.

(15:16):
So let' s talk now aboutthe consequences of this decision. Let us
begin with what implies that the Courthas rejected the judgment of the Court of
Cúcuta. Sure, that' sa very relevant point. First, we
see that the action of the constitutionalcontribution violates a basic principle of law,
which is the natural judge. Thisprinciple provides that the judge who hears a

(15:37):
case is the judge whom the Constitutionor the law has assigned to the jurisdiction.
Generally, when the Court confirms incustody that if there is a violation
of fundamental rights, it returns thefile Tribunal that made the decision so that
it may make a new decision,following the parameters dictated by the Court.

(16:00):
However, in this case, theCourt replaced the natural land restitution judge,
who was the superior reunal, anddid so without any legal justification. In
addition, I would like to complementthe above by telling you that we had
the opportunity to speak with an officialof the judicial branch, to whom for
security we reserved their name. Thisperson knew the case firsthand and coincides with

(16:22):
this analysis. Textually, this persontold us and spoke quotes. It was
very strange that the Court issued anorder for the Tribunal to recognize good faith
free of fault and to fix compensation. That' s where he doesn'
t know about judicial autonomy. Inthe Constitution. Judges are autonomous in making

(16:42):
their decisions. The judge of Guardianshipis not a superior of the other judges.
The judge of Guardianship is another specialty. What it does is to render
null and void the decision that isdeemed to be contrary to the legal system
and that court orders that how itreissues it is not that a guardianship judge

(17:03):
or pamba of the criterion to anotherauthority. That is to invade the realm
of its natural competence. The naturaljudge is the land resituation judge, not
the guardianship judge, that is,the Court Closes Comillos. Okay. Thank
you very much, Nicholas, becausethis testimony is obviously very clear. Now
I would like to ask Nuri aboutwhat this judgment tells us about the evaluation

(17:30):
of evidence and how it changes theway in which the standard of good faith
is evaluated. Thank you, MariaPaula, for we rescued several things from
this decision in the first place,in the Court relaxed the standard of good
faith free of guilt through the sentencewe questioned, ignoring the judicial precedent,

(17:52):
which demands full certainty that the saleof a property was not preceded by acts
of violence, even when considerable timehas passed since the event in question.
In that regard, since we considerthat the Court makes an evidentiary analysis and,
as the person who spoke to usabout the judicial operator in this case

(18:21):
previously pointed out, this novelty,the Court takes powers to define the good
faith of the company, the goodfaith free of fault of the company and
makes a decision in this regard,instead of ordering the Tribunal, which is

(18:41):
the competent body to take the finaldecision in the second place, the Court
gives credibility to what the company hasbeen saying in the framework of the restitution
process and let us say that thestage not defined by law is a little
exceeded in order to be able tostudy the restitution case. And almost that

(19:03):
the Court assumes a role of anew instance in relation to the case,
then this seems relevant to us inrelation to the decisions that can also be
taken in respect of restitution by ajudicial body that does not have jurisdiction and

(19:25):
exceeds that analysis. Also in thematter of good faith free of cool.
In fact, our informant, whowas close to the case, told us
that the application of the standard shouldalso be seen in light of the possibilities
that certain people have about auroindustrias VillaClaudia told us specifically to Oro Comillas.
The company had been in the regionfor more than seven years, had already

(19:48):
acquired some properties and had a morerobust infrastructure than any other victim to make
relevant inquiries. So, how doyou lower the standard to them who have
a greater ability to make the pesticsin front of a victim or another common
person who usually doesn' t havethat capacity. I close Comillas, a

(20:14):
hotele Ves is still on the ground. Okay, ya. Finally, I
would like to give the floor againto Nuri to tell us what he expects
in the future of restitution. Afterthis sentence that leaves us I think everyone

(20:37):
very puzzled. Thank you, MariaPaula. The Colombian Commission of Jurists considers
that this unification judgement generates a precedentand that, in some way, as
it is established illegally in the country, it is almost a compulsory matter that

(20:57):
must be taken into account by publicservants and, specifically, by the judicial
branch and the judges and magistrates onland restitution, which seems to us to
be very serious, because it isthese people who have studied land restitution issues
for about thirteen years, who havethe qualities and qualities from the context in

(21:22):
the regions to analyze restitution cases andthat the Constitutional Court in some way is
established as a judge of a remedythat does not exist in restitution, since
it gives us an alert to casesof land restitution where third parties who are

(21:48):
opponents, linked to economic groups,with companies specifically, have not been recognized
as having good faith exempt from blamefor multiple reasons in the process, despite
the fact that they have been giventhe opportunity to participate both in the administrative

(22:10):
stage leading up the unit of landrestitution and in the judicial stage that the
judges are taking forward. To thatextent, then, we must be very
vigilant, precisely to verify that inthe processes of restitution of lands that are

(22:36):
opposed by companies, for a littlethis precedent set by the Court has been
understood in terms of previous jurisprudence.Let us say that we are victims,
analyzing ourselves through the principles of Piñeiro, through the principles set forth in the

(23:03):
Victims Act and that they really implysatisfaction and a guarantee against the fundamental law
and the restitution of the lands ofthe dispossessed people and let us say that
they have abandoned their lands. Ithink it is also important to highlight from
this order ordered by the Constitutional Court, that compensation be generated in favour of

(23:30):
Villa Claudia industries and that the Judgetake the decision on how this compensation is
to be made. To that extent, let us say that the law states
that the value of the property mustbe credited within the process and on this,
therefore, compensation must be made.However, we must rescue that this,

(23:52):
because in some way, generates effectsin relation to the fund of resources
managed by the Land Restoration Unit forthe guarantee of reparation to the victims.
And so let' s say thatit is public or knowledgeable that this fund
has some difficulties precisely in developing theguarantees of comprehensive reparation in respect of land

(24:21):
to the victims. So let's say yes, it is very important
that this compensation that is granted toindustries Villa Claudia, as it is also
the basis that in some way theConstitutional Court studies in the proposal of nullity
of the sentence of that one hundredand sixty- two thousand twenty- three

(24:45):
that has been raised by the Unitof Restitution of Lands. I believe that
we have a great challenge in relationto showing that the victims of abandonment and
dispossession in the country must be guaranteedall their rights and to that extent let

(25:07):
us say that to know the jurisprudenceto know some changes that occur in the
matter of restitution of land, sincethey also allow to look for routes of
exit in face of these problems.Thanks with the Feet on Earth is produced

(25:27):
by the Earth Observatory. The presentepisode of the Foots on Earth was recorded
before the Constitutional Court ruled on thenullity incident that weighed on the sentence that
one hundred and sixty- three twothousand twenty- three. Although to date

(25:51):
we do not know the specific contentof the order that decides this incident,
the media have advanced that the Courtopted for the annulment of the sentences for
procedural defects in its deliberation. However, from the Observatory of Lands and the
legal clinic of agrarian property, restitutionof land and victims, we believe that
this space of deliberation is transcendental forthe understanding of the process of restitution of

(26:15):
land and, above all, tobe manifest the fragility to which restitution is
exposed as a fundamental right of thevictims before the judicial and state authorities.
Therefore, the publication of this episoderetains its initial importance, despite the fact
that the annulment of the sentence hasbeen successful. Many thanks to you,

(26:41):
Nuri, Manuel and Nicolás for havingaccompanied us in this very valuable discussion.
We hope that the podcast will helpto better understand what is in a game
with land restitution and I believe aboveall to promote a critical look at the
judicial dynamics. I would also liketo thank Carolina Cros for helping with the
production of this program, Nelson,from the master' s degree control that

(27:04):
accompanies us every week, and aradio rosary for making this space possible.
This is where today' s episodeends. We thank those who listen to
us and tune our signal to hearmore of our episodes. You can visit
the webw Earth Observatory Org, Slash, Podcast Slash and there you will have

(27:26):
access to all our episodes and publications. Don' t forget to follow us
on our social networks. In xthey find us as Earth Watches and on
Facebook as Facebook with Slash Earths Observe. Until the next time, conflicts over

(27:57):
the land of Indian communities occur inseveral regions of the country. One million
hectares of forest have been deforested inColombia in the last twenty- eight years
as a result of drug trafficking,illegal mining and the excessive use of land
for livestock. The second land restitutionjudge withdrew, threatening to send a victim

(28:17):
to the prosecution for claiming his rightsbefore his office. He' s tired
of hearing this for years. Youknew that in Colombia one percent of the
population occupies eighty- one percent ofthe land, while ninety- nine percent
of the land is blamed by theother nineteen percent of the population. I

(28:41):
knew that only twenty- six percentof the productive units are headed by women.
A radio rosary and the Observatory ofLands presented with their feet on the
ground a space to expand the dialogueon the property and the Colombian countryside