Good Faith Without Fault and the Third-Party Opposition Proceeding to the Precautionary Measure in the Justice and Peace Law

Abstract

This article examines the special asset forfeiture regime established by Law 1592 of 2012 within the Justice and Peace Law (Law 975 of 2005), with particular emphasis on the concept of “good faith exempt from fault” and its demonstration through the so-called third-party opposition proceeding. It analyzes the requirements for establishing “qualified good faith,” understood as the level of diligence and prudence exceeding the ordinary standard when acquiring assets subject to forfeiture measures. From a constitutional perspective, the study explores both the objective and subjective components of this standard, as well as the impact of Judgment SU-424 of 2021 on the consolidation and evolution of its conceptual framework. The discussion also highlights the centrality of due process within the opposition proceeding under Article 17C of Law 975 of 2005, focusing on its objectives, scope, and evidentiary requirements, which are designed to ensure meaningful participation by third parties and the protection of their rights. Finally, the article underscores the importance of integrating conventionality control into judicial practice, in line with Judgment C-146 of 2021 and Article 93 of the Political Constitution, consistent with the guarantees established in Article 8 of the American Convention on Human Rights. The article concludes that the effectiveness of the opposition proceeding and the protection of third-party rights depend on the parties’ ability to demonstrate qualified good faith, in accordance with prevailing constitutional, jurisprudential, and international human rights doctrine.