Abstract

CASTANO ZULUAGA, Luis Ociel. Burden of Proof in the Criminal Trial: Judicial Dilemma between Prevalence of Social/Institutional Interests or the Citizen's Interests. Opin. jurid. [online]. 2010, vol.9, n.18, pp.173-192. ISSN 1692-2530.

From an analytical point of view, this article includes a possibility a criminal judge would have in modern constitutional State to "exceptionally" create and submit evidences in specific cases, even going against the criminal judge's will and a jurisprudential line of the Constitutional Court. All this thanks to a possibility offered by the inadvertent constitutional control (except for unconstitutionality) and constitutional principles, grounded on the traditional thesis of the Constitutional Law. Based on the amendment of Sentence SC-396, 2007, the article criticizes position of most of the people of the Colombian Constitutional Court when it declared article 361 of Law 906, 2004 enforceable, asking for a judge invested with more powers in relation to the process direction.

Keywords : Evidence; warranty; democratic and social right state; judge powers; constitutional due process.

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