A rigid application of the principle of good faith within the process of land restitution can disregard or transgress fundamental rights. The document presents the different legal problems that have arisen.
The process of land restitution, created to reverse the abandonment and dispossession of land that campesinos have suffered in recent decades, incorporates a series of principles such as good faith and reversal of the burden of proof in restitution processes. This implies that the State has a duty to presume the good faith of the victims and to ease the burden of proof required of them. In addition, this law provides mechanisms to prevent the legalization of land and compensation payments for those who supported displacements or took advantage of the context of violence to acquire or occupy the land.
This study seeks to explore the different legal problems that arise from the application of these concepts, with respect to the different types of participants in the process. Many of the properties that have been claimed have also been occupied by both the opponents contemplated in Law 1448 of 2011 (perpetrators and subjects or qualified businesses), as well as by campesinos in a state of vulnerability, subject to special constitutional protection and other victims of the armed conflict.
This situation, not initially considered under the norm, has required an additional effort by judges and justices to create sub-rules that harmonize their decisions with the Constitution, international standards and the protection of fundamental rights.
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