The court does it again » Al Poniente

As before, the Constitutional Court protects rights and guarantees against legislative deficiencies and gaps in the national legal system. As it happened, to give some examples, with the situation of violation of the rights of the population, a victim of displacement by the armed conflict (T-025/04), decriminalization of the minimum dose and consumption (C-221/94 and C – 253/ 19), the rights to equal marriage (C-577/11 and SU214/16), to the free and voluntary termination of pregnancy (C-055/22) and to a dignified death (C-233/21).

On this occasion, in judgment SU-288-22, the Court established new rules to ensure that vacant assets, which are state-owned without statute of limitations, remain in the hands of the rural population. Well, it proved the existence of a risk that real estate whose private law nature is uncertain, by acquiring prescription through processes of ownership, will end up in favor of owners of large estates, which will allow the concentration of land. Meanwhile, in this class of civil proceedings, it is not necessary to verify whether the claimant is subject to agrarian reform and the extension of ownership is not limited.

The above is imposed based on the recognition that Colombia occupies one of the first places in the world in the Gini index, which measures the level of inequality in the distribution of property. This is that, as the Court pointed out, 75% of the owners own only 18% of the private land registered in the cadastre. Not counting the natural under-registration due to the informality of its ownership.

Thus, the Supreme Court ruled that – setting aside the presumption of private ownership as long as the farm is economically exploited (Law 200 of 1936) – when private ownership is not proven from a legal point of view (Art. 48, Law 160 /94 ) , there is a doubt about its legal nature, which must be resolved through the procedure for the qualification of the agricultural property. Therefore, this property may not be subject to prescription in favor of any individual and the ownership process will be prematurely terminated. Which limits the qualifications by making them more demanding so they only benefit the rural population.

Paradoxically, this new decision can be said to limit access to land for the most vulnerable rural population, who, due to the inefficiency of the state to ensure land formalization, were able to obtain ownership through a legal process. However, the decision established safeguards with a differentiated and cross-sectoral approach, to the extent that the claimant is found to be the subject of agrarian reform or access to land in the judicial process, especially rural women, poor or displaced families, the National Land Agency will have to offer them appropriate guidelines.

Likewise, he ordered the restoration of vacant lots which had been granted by the justices through the process of ownership to persons with doubts as to their personal character. However, it was considered that judgments which declare the statute of limitations and which meet the objectives of providing free plots, that is, access to the land of the rural population, should be recognized by the state. In addition, the said restoration established prioritization criteria for sites that actually reflect concentration or unnecessary accumulation of land.

Addendum 1: It is true that judicial activism can generate risks to the separation of powers. But ultimately, what judicial activism reflects is the failure of other state institutions that are unable to recognize the rights and guarantees of the population.

Addendum 2: As of the publication date of this column, the commented sentence has not been published. Previous dissertations were based on the statement issued by the Constitutional Court in this regard on August 18, 2022. This temporary difference should be shorter in order to promote legal certainty and clarity of decisions, in terms of their motivation and publicity.

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