La expropiación tácita en Colombia, una interpretación del desarrollo jurisprudencial en los casos de ocupación de hecho administrativa

Abstract

In the present work a legal-descriptive analysis is made, about the process of expropriation in Colombia, and an exception to this that within the work has been defined as tacit expropriation, a concept that is extracted from the current jurisprudential analysis of the Supreme Court of Justice and of the Council of State in the cases in which the public administration occupies a permanent property. The tacit expropriation is nothing more than the result of the judicial activism of the high courts, because by using the jurisprudence they have created norms in which they have constituted as legally acceptable the fact that the State can acquire the right to own property over the occupied in fact, thus omitting the regular procedure that the Law has established for it. The Constitutional Court and the Council of State respectively in recent judgments have allowed to establish a cause and effect relationship that exists between the occupation of permanent fact that a public entity makes to a real estate (cause), and the subsequent consequence of it consisting in the payment of compensation and the transfer of ownership of the asset occupied in favor of the entity generating the unlawful damage (effect-), which finally allows a synthesis of the cause and effect taking it to reality finally concluding if the expropriation tacita despite the stated in the aforementioned jurisprudence constitutes or does not constitute a violation of the fundamental right to private property of the owner of the expropriated property