La prueba de oficio en el proceso civil colombiano

The ex officio evidence in the Colombian civil process has generated throughout its validity concerns related to the loss of the judge's impartiality and the lack of determination of the specific criteria that allow it to be used in specific cases. Both issues are related, since the lack of clarity about when the judge must use ex officio evidence in a specific case increases the risk that he will lose his impartiality, as the decision would apparently be made. of the.

In this document, some criteria extracted from the systematic analysis of the civil process are proposed, so that the civil judge, from now on, can make the decision to order the evidence ex officio, reducing the risk of losing his impartiality and fulfilling the purposes of said institution. These criteria are: i) when there are uncertain facts regarding which it is mandatory for the judge to make a ruling; ii) when the parties have made use of their evidentiary initiative, so that they have taken care to request and provide the means of proof that would be expected from a diligent party (among other reasons, because ex officio evidence does not have the function of excusing the negligence of the parties in their evidentiary initiative); iii) when the judge has knowledge about the means of proof that would allow him to overcome the state of doubt in the face of the uncertain fact.

Thus, if at the end of the investigation of the process an uncertain fact persists, but the parties have not diligently used their evidentiary initiative, it is appropriate for the judge to consider the fact not proven and therefore deny the consequence associated with that alleged fact. . The judge would have to act in the same way when he does not notice with what means of proof he could resolve the doubt regarding the uncertain fact.