Constitutional justification of the burden of proof.

Abstract

The doctrine of the burden of proof must face, as the pole of its argument, its connection with the Constitution and that it must assume that the doctrine of onus probandi projects a formulation that goes beyond its strict procedural conceptualization of the "ordinary" to access the sphere of constitutional guarantee, because a jurisdictional declaration of right cannot be refused when a party's burden of proof is aided by both the preemption of defenselessness and the right to use appropriate means of proof to substantiate - prove - its claim. It must be declared essential that recognition of the constitutional right to the burden of proof is correlated with the constitutional right to effective judicial protection. The Constitution, in addition, places this recognition in the procedural part without the possibility to recognize the relative recognition of the constitutional right as the burden of proof in the judge and which can justify the ex officio evidence of the part of the judge (in part). In the European model, the constitutional right to the burden of proof is correlated with the constitutional right to effective judicial protection, which is not characterized by its uncertainty or casuism - that is, when the burden of proof should apply in a civil process - but, on the contrary, by the constitutional recognition of a specific and specific constitutional right and the guarantee provided by the Constitution. Without constitutional recognition of the right to the burden of proof, it would be impossible to achieve effective judicial protection, since the use of "evidence for their protection" is essential for the party to have access to it - to effective judicial protection. Burden of proof rules have a double dimension. On the one hand, they affect the parties because they indicate the need to prove their claims and the scope of the right to prove what they have in the process. On the other hand, they are the only way out of the crossroads in which the court may find itself when it doubts the authenticity of the facts proved, either because they have not been proved, or because the evidence was insufficient or unsatisfactory. This decision consists in ruling against the party who has failed to prove the facts in question, constituting a factual presumption of the supremacy of the law sought to be enforced.