The tests carried out by common agreement by the parties. a road under construction

Abstract

Despite the fact that the current procedural model invites the different procedural actions to be carried out orally in hearing, with the privilege of immediacy, concentration and publicity, this does not imply that all the evidence on which the substantive decision is based must be carried out intra-procedurally and under the direction of the judicial authority that will resolve the matter.

Clearly, the same legislator has provided several exceptions to the immediacy rule, which are supported by the right to due process. To maintain that immediacy constitutes a principle of an absolute nature would imply curtailing the possibility of taking evidence outside of the process (extra-procedural evidence), bringing evidence from other processes (transferred evidence), or commissioning evidence to be taken, which would translate in the violation of the right to evidence, an essential guarantee that is part of the right to due process.

Having said the foregoing, it is worth asking whether it is legitimate for the parties to carry out an exercise of collection and practice of evidence without the presence of the judge who will eventually hear the matter to which such evidence is supported. In the following lines I will explain the reasons why I consider that the practice of evidence at the parties' head is legitimate, of course, in an extra-procedural scenario and without the intervention of a judicial authority.

Although the judicial authority has the responsibility of issuing substantive decisions that put an end to the litigation within a reasonable period of time (CGP, art. 121), the parties also have the duty to collaborate with the judicial activity by providing quality information to the judge. , that is, the evidence that they want to assert, duly controversial, so that the intra-procedural evidentiary activity is minimal and only focuses on those situations that definitely could not be evacuated by the parties outside the judicial scenario. Only in this way can we guarantee compliance with the reasonable term of duration of the process and, in passing, of the right to effective judicial protection.