La práctica de la prueba como fundamento esencial de la sentencia en los procesos penales

Abstract

The present research work had as object of study the practice in criminal matters and was developed under the criminal process of the crime of private action of injuries, considering that the evidence incorporated in the process was sufficient to demonstrate the materiality of the infraction and the culpability of Mrs. LEYDYS ANTONIA SALAZAR REALPE, but at the trial hearing the defense attorney did not practice the announced tests. In this way, the central objective of the study is to determine whether, in the private action criminal proceeding against LEYDYS ANTONIA SALAZAR REALPE and FERNANDO TRIANA PINARGOTE, the complainant correctly performed the announced tests in the course of the trial hearing. Although it is true that the probative activity corresponds to the procedural subjects, only the judge is the one who must give it a real value in the process, that is, it is the judge who makes the assessment of the evidence and who must clear any reasonable doubt about the innocence or guilt of the complainant. The case study that we have worked with is a case that attracts a lot of attention, since putting ourselves in the place of the plaintiff's defense lawyer was a lost case, since the complainant had caused the injuries, insults that were motive of the criminal offense and these were proven with the legal medical examination that the defendant practiced at the opportune moment and had the endorsement of a specialized expert of the council of the judiciary, that is the point of controversy, the defendant did not practice the tests that were announced in the process as the legal medical examination, did not bring the expert to substantiate the test so that the final hearing supports the aforementioned report, so that it is introduced as evidence, and with that the existence is determined of the injuries that are the subject of the present criminal case, which is related to what is stated in Article 454 of the Organic Comprehensive Criminal Code, in that s expert reports do not substitute the testimony of the expert who can not be admitted as evidence and is that without the support of the legal medical report could not prove the materiality of the violation and criminal responsibility of the person processed, because the test it was not practiced and was not exposed to the principle of contradiction. Our main conclusion after the dogmatic review of the test, its practice, its principles, as well as the theories about the evaluation of the test has been that the judge acted according to the law and the system device since the judge can not assess evidence that they have not been practiced in the hearing of judgment because they would lack of probative effectiveness since the test must guarantee the principles of contradiction and immediacy in order to solve. Therefore, the judge must inadmit or exclude them from the procedural proceeding. To support these positions, have been of great help the set of knowledge drawn from the law and scientific journals on the assessment of the evidence, since the authors stated that the evidence must be practiced at the trial hearing, otherwise no they would be considered in the decision adopted by the judge.