La prueba de oficio en el sistema procesal penal colombiano

Abstract

The structure of the current criminal process was adopted by Legislative Act 03 of 2002, through which the Political Constitution was modified, and was developed by Law 906 of 2004 in which an accusatory trial system was adopted, with novel procedural institutions and new roles of the parties. To understand the current criminal system, it is necessary to study the modifications introduced by the aforementioned Legislative Act to the Colombian criminal procedure that governed, highlighting its constitutionalization, as well as the main characteristics of the Accusatory Penal System, such as the adversarialism of the main interveners, such as the Office of the Attorney General of the Nation in its accusatory role and the defendant, shielding their interests through material defense and technique, in light of the Governing Rules and Procedural Guarantees. Hence, the procedural guarantees within the criminal procedure find applicability of principles in accordance with said purpose, as is the evidentiary scope of each of the functionally confronted roles, which finds normative support in the constitutional power to present evidence and controvert. the that they are alleguen (1991, p. 29), consequently, the Judge as arbitrator of the action, must guarantee the principle of impartiality so that the decision adopted is a source of the evidentiary conviction obtained from its immediacy with the evidentiary practice during the trial stage, for this reason, the Prohibition of the informality of evidence by the judicial operator, contemplated in article 361 of the Code of Criminal Procedure (Law 906, 2004). Despite this strict prohibition, the Jurisprudence in Colombia has admitted that exceptionally in specific cases, the Judge can decree and order the taking of evidence, for which the present investigation will seek to determine if the consecration of said exceptions reaffirms or distorts the principles of the system accusatory penal established by Legislative Act 003 of 2002. Developing this context affects the need to define the legal scope of the jurisprudential exception to the norm, allowing an accurate analysis of the applicability of the same by the Guarantee Control Judge.