La restitución de tierras en Colombia y la reparación transformadora en la construcción de paz: la experiencia en Santander desde la aplicación y efectividad de los fallos judiciales

Abstract

The restitution of land abandoned in the context of armed conflict is a key reparation measure provided for by the Victims and Land Restitution Law of 1448/2011. In Santander, land judges have handed down 55 judgments as of December 2016. This article aims to analyze the status of the issue of restitution in the department, with a specific focus on the application and effectiveness of the law. This investigation is carried out through a descriptive analysis and interpretation of the judicial decisions and the post-decision stage. Given the complexity of the problem to be investigated, a diversity of sources have been consulted: national and international regulations and jurisprudence; official reports and statistics; databases and research-investigations of human rights and press organizations, as well as a bibliography of context. Likewise, interviews have been conducted with various actors in the land restitution process, coupled with visits to restituted properties. Although the land judges mostly apply the provisions of the law, there are a number of difficulties in the implementation of the orders issued, which limit an effective and transformative reparation for the victims. The flexibility of the public policy of land restitution allows this still-unfolding process to overcome the pitfalls indicated in the text. These pitfalls may be overcome by maintaining the competence of the judges in the post-decision stage until an effective reparation is guaranteed, as well as with the application of subsidiary measures to compensate land claimants with an equivalent land parcel or monetary indemnity, instead of ordering the material delivery of the property claimed.