Las diligencias preprocesales y su incidencia en la vulneración de la tutela judicial efectiva.

Abstract

Background: This paper studies the elements of effective judicial protection, such as: access to the judicial body, the processing of the petition and the issuance of a reasoned resolution, with its respective content and scope. Seeking to verify the fulfillment of these elements in the practice of pre-procedural or preparatory proceedings in advance of evidence. Its general objective is to propose a reform project to COGEP, to delimit and establish a procedure regarding pre-procedural proceedings, in such a way that it conforms to the constitutional norm and does not violate effective judicial protection. The methodology has a qualitative approach, by means of which the analysis of the norm that contains the procedure of preparatory and pre-procedural proceedings in non-criminal matters, examination of providences and interview of civil and contravention judges is carried out. The results show the existence of differences between the pre-procedural proceedings provided in the COFJ and the preparatory proceedings contained in the COGEP, the existence of a procedure without equal conditions for the actor and defendant and the effect on effective judicial protection. In this sense, it is concluded that there is a need to reform the regulations, in relation to pre-procedural and / or preparatory proceedings, to achieve compliance with the principles of immediacy and equality of parties, being a single judge who knows both of the previous diligence as of the main trial and when granting the possibility to the defendant to require anticipation of evidence, when doing the other part.