Civil Evidence

“The judge is in the midst of a tiny hedge of lights, outside of which all is darkness: behind him the enigma of the past and in front of him the enigma of the future. That tiny hedge is the evidence”

Accordingly, this is one of the “Thema Probandi”, which most requires a detailed psychological narrative describing those behaviors and situations from which a weakness of resistance of the will can be inferred.

In our case to determine this event, it must be established that the Judicial Code of the Republic of Panama indicates a determined or rather specific period within a process to present or provide evidence. This is due to the fact that the parties must make their discharges to support the facts described in the lawsuit or otherwise provide new evidence that will make the judge who knows the process have more proof to issue the sentence in the first instance and have more support for his final decision.

It is important to note that Article 242 of the Judicial Code states that:

“Documents, confessions, oaths, declarations of parties, witness statements, judicial inspection, expert opinions, reports, evidence, scientific means and any other rational means that serve to form the Judge’s conviction, provided that they are not expressly prohibited by law, nor violate human rights, nor are contrary to morality or public order.

Tracings, reproductions and photographs of objects, documents and places can also be used.

It is permitted, in order to establish whether or not an event can be carried out in a certain way, to proceed to the reconstruction thereof. If the judge deems it necessary, a photographic or electromagnetic record may be made.

In case it is convenient to the evidence, it can also be arranged to obtain x-rays, radioscopies, hematological and bacteriological analyses, and the practice of any other procedure of scientific verification “.

According to this, the Judge shall admit the evidence provided as long as they are the ones described in the article we have just read and contrary to this, they could not be accepted since they do not establish a full evidence of study and neither of analysis. Therefore, the Judge A Quo, in due time and in accordance with the principle of sound criticism, without excluding the documentary solemnity that the Law establishes for the existence or validity of certain acts or contracts, admits the evidence and proceeds to set a date for the practice thereof, indicating in turn, the dates established for both the plaintiff and the defendant to carry out the practice thereof, which may be through hearings, documentaries, expert reports, testimonials, ocular inspection, among others.

It should be noted that; it is incumbent upon the parties to prove the facts that constitute the alleged crime that violates the rules that are favorable to them, it is also necessary to clarify that the evidence of the facts asserted by one party and admitted by the opposite party do not require practice, which clearly must be admitted and declared practiced by the Judge of the instance.

The work of the judge is not limited to the legal norms to which he must give effect, but he must also elaborate the state of the facts to which those norms are to be applied, since before probing what should be, he must verify what is, or in its case, what has been.

The author and jurist Francesco Camelutti (May 15, 1879 – March 8, 1965), considered together with Piero Calamandrei, Giuseppe Chiovenda and Eduardo Giovanni Couture, one of the most influential proceduralists of all times, explains that as to the factual situation the judge must accommodate to the affirmations of the parties, while defining as affirmation of a fact the position of this as a presupposition of the claim addressed to the judge.

He indicates in turn, that the affirmation of the parties binds the judge as to the position of the fact, because he cannot put a factual situation that has not been affirmed by one of the parties and because he cannot fail to put a factual situation that has been affirmed by all the parties.

It is essential to understand that the parties must present the evidence to convince the judge about the existence of the facts that relate the petition of the claim, which has been said in the following term “the facts of a claim are the evidence commented”, in this way the evaluation of the facts enters in a gravitational force relationship with the evidence, where the evidence does not prove the fact, but the fact is the evidence itself.

In this sense, the author Remando Devis Echandia, in his work “General Theory of Judicial Evidence, Volume I”, establishes that the administration of justice would be impossible without evidence, as well as the prevention of litigation and the security of rights and legal commerce in general. There would be no legal order at all.

According to Jeremiah Bentham, “the art of the process is essentially no other than the art of administering evidence”, that is why it must be necessary to understand that, whenever the fact to be assessed is not present, the judge has to use other objects that allow him to know the absent fact, so as we have commented above, the right to prove is not intended to convince the judge of the truth of the affirmed fact, that is to say, it is not a right for the judge to be convinced in the presence of certain means of evidence, but to accept and practice those requested or presented by the parties and to take them into account in the sentence or decision regardless of the result of their appreciation.

If you consider that you are being victim of a constitutive arbitrariness of a defect within a judicial process or if you wish to file a lawsuit against a party that is affecting your rights, we recommend hiring the services and legal advice of a suitable lawyer who keeps updated on these issues, for which Quijano & Associates is a forensic firm that has a lot of experience in litigation and is constantly updated in this area, so the reader should not hesitate to contact us to find solutions.

By: Alexander Santana