The action of extinction of domain rights, understood as the constitutional action derived from the constitutional regime of private property contained in Articles 34 and 58 of our Political Constitution, must be directed against illicit patrimonial rights, that is, those that derive from the execution of illicit activities that lead to the affectation of the legitimacy of private property, either due to its illicit origin or to the illicit use of the same. It is, therefore, an action whose constitutional nature constitutes a patrimonial sanction derived from the execution of illicit activities as a state safeguard of legitimate property, understood as that which is acquired in full compliance with civil law.
Therefore, the action of extinction of domain rights is a State action that is exercised through the Attorney General’s Office of the Nation, whenever it is fully demonstrated that, with respect to a certain property, there exists one of the causes of extinction of domain rights contained in Article 16 of Law 1708 of 2014, which are exhaustive.
Thus, in the face of the action of extinction of domain rights that the State may eventually exercise against a certain property, the only thing that must be opposed is the acquisition of ownership in a lawful manner, that is, in accordance with civil laws and in full compliance with the obligations arising from the social and ecological function of private property.
Additionally, it should be noted that the action of extinction of domain rights is subject to a special procedural regime, that is, it is regulated by principles, substantive rules and procedural rules specific to said action contained in the Code of Extinction of Domain, without this meaning that it is outside the fundamental guarantees contained in the Constitution, among which is due process. This means that the extinction of domain rights process is carried out in two phases: an initial or pre-trial phase, understood as the preparatory stage of the extinction of domain rights lawsuit filed by the Attorney General’s Office of the Nation, which must be directed to the investigation, collection of evidence, ordering precautionary measures, requesting control of guarantees against investigative acts and the filing of the lawsuit, a stage that enjoys legal confidentiality, and a second phase, which is the trial phase in charge of the Judge, which begins with the filing of the lawsuit against which the affected parties may exercise their right to contradict in accordance with Articles 8 and 13 of the Code of Extinction of Domain.
It should be noted, then, that the Attorney General’s Office of the Nation is empowered to impose precautionary measures on the assets of the affected parties that are immersed in one of the causes of Article 16 of the Code of Extinction of Domain Rights prior to the filing of the lawsuit, the order of precautionary measures against which only legality control proceeds, taking into account the causes contained in Article 112 of the aforementioned Code.
It is here that it is considered that third parties in good faith exempt from culpability should have greater protection, this, against the order of precautionary measures that affect their assets, by reason or, better, in development of the fundamental guarantee contained in Article 7 of Law 1708 of 2014, a guarantee according to which “the good faith of any legal act or business related to the acquisition or destination of goods is presumed, provided that the holder of the right proceeds in a diligent and prudent manner, exempt from all guilt.”
It is then proposed that in the case of the affectation of goods with a precautionary measure in matters of extinction of domain rights, and with respect to which it is foreseen that they are in the hands of a possible third party in good faith exempt from culpability, a prior control to their imposition must be mediated in the head of the Circuit Judge Specialized in Extinction of Domain Rights in which the procedural or non-procedence of the imposition of one or another of the precautionary measures contained in Article 88 of the Code of Extinction of Domain Rights is determined, especially when a precautionary measure is intended to be imposed by the Attorney General’s Office of the Nation prior to the filing of the lawsuit, precisely because of the presumption of good faith that falls on any legal act or business in the exercise of the acquisition or destination of a certain property.
This position derives precisely from the legal reserve enjoyed by the initial phase of the action for the extinction of property rights, in which the only party involved is the prosecution and in which the third party in good faith exempt from fault does not have the possibility of exercising their right of contradiction as a fundamental guarantee of due process. While it is true that the third party in good faith exempt from fault may go before the Specialized Circuit Judge for the Extinction of Domain to request a legality review of the precautionary measures decreed by the Prosecutor’s Office, it is also true that the third party in good faith can only go to said legality review as long as one of the grounds that determine its admissibility is present, which are exhaustive and are contained in article 88 of the Code for the Extinction of Domain. Thus, if one of the aforementioned grounds is not present, a third party in good faith exempt from fault may not go before the competent judge to request a legality review and must bear the costs and wait for the Prosecutor’s Office’s claim, that is, the claim for the extinction of the property rights of the affected assets, to be resolved by judgment.
The position proposed here is largely comparable to the legality review that must be requested by the Attorney General of the Nation when it is intended to affect assets located abroad, in such a way that, with the carrying out of a prior legality review to the imposition of precautionary measures in advance of the filing of the claim for the extinction of property rights by the Prosecutor’s Office, a true application of the presumption of good faith that covers any act or legal transaction related to the acquisition or destination of the assets by a third party in good faith exempt from fault would be guaranteed. This prior legality review would also allow for a better application of article 87 of the Code for the Extinction of Domain, insofar as this article indicates that the rights of good faith exempt from fault must always be safeguarded in the face of the imposition of a precautionary measure, a situation that does not always occur in the resolutions decreeing the precautionary measure issued by the prosecution.
