Caselaw » Judgment T-821/07

Nature of the case

Challenge to decision denying registration of Applicant as an internally displaced person; Whether a tutela action was the appropriate vehicle to enforce rights; Whether displaced persons have right to own and possess land taken by force; Burden of Proof; Domestic Application of International Law; Right to an Effective Remedy.

Summary

In September 2006, seven hooded and armed men kidnapped Rosmira Serrano Quintero's partner and killed her father, then told her to leave El Limoncito, where she lived, or else she and her daughters would also be killed, so she fled. In November 2006, she requested registration of herself and her daughters as displaced persons. Her application was denied by the Presidential Agency for Social Action and International Cooperation (Social Action). Ms. Serrano then verbally filed a tutela action (an order to seek an immediate judicial injunction against actions or omissions of any public authority which violates human rights) which again failed. She finally appealed to the Constitutional Court of Colombia.

The Constitutional Court determined that the tutela action was admissible because displaced persons enjoy special constitutional status as a vulnerable group. Next, the Court determined that a tutela action could be used to register someone in the Exclusive Registry of Displaced Persons, and that Social Action's denial of Serrano's application was based on insufficient support that created unreasonable requirements that barred registration. Finally, the Court determined that displaced persons have a fundamental right to restitution under Colombian and international law (Pinheiro Principles). Because the State did not meet its duty to inform the applicant of her rights regarding ownership, the Court ordered Social Action to register Ms. Serrano and her daughters, to take steps to protect Ms. Serrano's right to ownership of her land and to inform internally displaced persons of their rights of ownership and possession and of mechanisms available to protect their land. Finally, the Court ordered Social Action to study the feasibility of establishing a registry of displaced persons in order to identify victims that have the right of reparation.

Enforcement of the decision and other outcomes

The Colombian legislature introduced a law, Victim's Law and National Restitution Plan that will create a reparations program for displaced persons in Colombia. However, some groups are skeptical of the proposed law's ability to fully protect victims. In its current form, it places high burdens on claims brought against the Colombian security forces because the claims must be decided in court proceedings, while in claims against paramilitary forces or guerilla groups, monetary restitution is received via administrative decision. (See Secondary Sources for more information.) It will be voted on later this year.

Significance of the case

Because many people in Colombia do not have title to the land they possess, the Court's application of the Pinheiro Principles in this case were of critical importance in protecting the right to land and housing for many poor Colombians.  This judgment made clear that international standards would be interpreted as obligations of the Colombian government and state officials would be bound to uphold them.

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