The extinction of domain is a judicial process, through which the State reclaims the property owned by persons who (i) obtained it illegally or (ii) have used it to commit illegal activities direct or indirectly. The norms relating to the extinction of domain are found in Law 1708 of 2014 better known as the Code of Extinction of Domain. The process of extinction of domain is a different and autonomous action to the criminal action, and it is not subject to the statute of limitations. Recently, the national government has been talking about the need to reform the current Code, therefore, hereunder we will develop a brief summary of the figure and its most important elements.
The grounds for extinction of domain are the reasons for which the Prosecutor's Office may initiate the process on the property that are within any of the circumstances set forth in Section 16 of the Code. The grounds are divided into (i) grounds of origin, which are those whose application is given when the property is purchased with money driven from illegal activities and (ii) the grounds of destination which are those applied on the property in which illegal activities were or are committed. The most important thing to keep in mind is that the extinction of domain may apply to any type of property, whether movable or immovable.
There are two parties involved in the extinction of domain process: the Attorney General's Office and the affected persons. The second party can be anyperson who claims to have rights over the property, which has allegedly been obtained or has been destined to commit illegal activities. Additionally, there are the intervening parties in the process, which are composed of the Prosecutor General's Office and the Ministry of Justice 1 .
The process consists essentially of two phases: (i) the initial phase according to which the Prosecutor's Office oversees the gathering of all the evidence to demonstrate that the origin or destination of the property or properties is/are related to illicit activities. Once the Prosecutor's Office has the evidence, it makes a claim for domain extinction or, if it finds no grounds, it issues a resolution to close the case. In case that a claim is made, the affected party is notified, and the process continues. The second stage is known as (ii) the trial phase, an specialized judge for the extinction of domain makes the final decision on whether or not to extinguish the property in accordance with the evidence provided by both the Prosecutor's Office and the affected in the process.
If the State decides to initiate a domain extinction over a property, as a rule the only valid defense to avoid losing the ownership of the property is to demonstrate that the property was acquired in good faith free of guilt, although in very specific cases it will only be sufficient to demonstrate good faith, according to C-327 of 2020. Thus, together with the good faith, it must be proved that, at the time of acquisition of the property, all possible acts, according to the state of science, were performed, to verify that the property was not immersed in a cause of extinction of domain. As well, it would also be possible to prove the good faith exempt from guilt if having performed all the due diligence activities, it would have been impossible to know that the property was immersed in a cause of extinguishment.
For example, in a case in which someone wants to acquire a real estate property, it is recommended to review the chain of owners of the property for at least the previous 20 years. This, to verify that none of the previous owners has been linked up to any type of illegal activity. Therefore, the relevant elements to form a solid defense in an extinction of domain process is to know the history of the property to be acquired.
However, the current extinction of domain procedure has been subject to different critics for not being considered an expeditious procedure. That is why since its enactment there have been different attempts to reformulate or reorient it according to the view of each Government. Some of these examples are the following: as of Legislative Act 002 of 2017, it was established that the institutions and authorities of the State within which the Prosecutor's Office and the specialized judges for extinction of domain must comply with the provisions of the Final Peace Agreement. And the sentence C-630 of 2017 that endorsed the constitutionality of the legislative act reaffirmed the need to comply with the Final Peace Agreement and stated that the Nation’s Government should propose a bill of law for the materialization of its purposes.
More recently, on July 27, 2021, the law draft No. 138/2021C was filed with the purpose of reforming the Code to accelerate the process of extinction of domain. The bill seeks to fulfill its purpose by establishing a term of duration for the initial phase, conditions in order to extend the initial phase and the possibility of investigating in disciplinary and criminal grounds the officials that breach the preceding provisions. This would speed up the process, since there would not only be a term of duration in the initial phase, but its extension would be subject to specific conditions and its non-compliance would entail specific sanctions.
Likewise, currently the Ministry of Justice has been talking about the need to reform the Code to strengthen the process, increase the number of extinction of domain judges and make it easier to accept anticipated sentences. The above, shows how the Code of Extinction of Domain is an issue that is still in force and that may continue to sound until a substantive decision is made.
