Imagine yourself in the role of a judge. The victim’s lawyer forgot to present a key document within the specified period, to prove that his client had the right he was claiming for. Because of this, he lost the case, and therefore his client lost his right.

You couldn’t do anything about it, even though you knew that the document, which actually exists, was necessary to reach the truth because your judgment is limited to the evidence offered by the parties.

So, the lack of evidence caused the truth from the sentence to be different from the “real truth”. In other words, the “truth” that was proven and the true of what really happened or what really is, didn’t match.

Unfair? Well, it depends on the eye of the beholder and in the next paragraphs, it will be explained why.

Let’s start from the premise that a judicial process has the purpose of solving a conflict by searching for truth. Although this can be difficult or complex, the idea is to reach a fair or better said “just” sentence, but, what is “just” in our context?

According to Ulpiano, Justice is the constant and endless will of giving each one what they deserve”. To do this we need to know the truth, hence the phrase of Joseph Jobert “Justice is truth in action.” The judge, to perform his function of administering justice must try to reach the truth. However, this truth is relative, because he bases his decision on the evidence offered by the parties.There are few exceptions in which the judge take part, and it depends on each legal system. [1]

So, at this point, we must make a distinction between material truth and procedural truth. The material truth comes to be what is true; conformity of what is said with what exists; it is what really happened. And the procedural truth is provided by evidence in a trial.[2]

Given this distinction, the judge ideally should try to obtain the material truth, the real one, which is that brings us to justice. This can’t be possible on several occasions due to the limitations within its functions.

Is procedural truth more important than the real truth for jurists? We believe that many would point out that it is not, but in our daily life, we are surprised by judicial decisions that tell us that this premise is true.[3]

In criminal procedure, the judge usually has extensive investigative provisions, because “justice” is only conceived if the historic determination of the event is full reached. And precisely this is the main reason to continue giving the judge broad powers of determination; on incorporation of proof, interrogation of witnesses, etc.[4] Even so, there are cases in which negligence of the lawyer or district attorney, prevents from reaching the truth.

To make a simple example, let’s suppose the following situation:

You witnessed a brutal murder committed by an under-age neighbor. You were threatened by your neighbor, and due to the involved danger, you moved from your house, arguing that anywhere was going to be safer. Nevertheless, you had to state in front of the court, because your declaration as a witness was considered one of the key evidences, so with your heart trying to run away and cover in cold sweat, feeling the cold-eyes of the murderer at your back, you accomplished with your duty.

With all the evidence it was possible to prove that the murder happened, but when analyzing the subject’s responsibility for the event, this couldn’t be done because the prosecutor forgot to perform an essential procedure in processes involving under-ages: the socio-environmental study. This mistake led to a terrifying result, the murderer was absolved.

The widow was drowning in tears, all the efforts to clarify the facts were in vain, because although “in the eyes of the material truth people comment that this person is a murderer; in the eyes of the procedural truth, he is innocent, and he can afford the luxury of walking through the streets“.[5]Can we consider it a “just” sentence? Can you consider this end as a “just” one?

There are, on the other hand, those who assert that if the judge is allowed to have more intervention, including remedying negligence of the parties in searching the truth, taking in count the case mentioned before, it would be rewarding the “bad” lawyer and punishing the “good” one.[6]

However, I think that for the effectiveness of the Judiciary in its search for the truth for the solution of conflicts, the magistrate must do everything he can. If this is not enough, the legal system should be rethought.

[1]For example: In labor law exists the principle of primacy of reality. And the judge can even give more than what was requested (ultra petita) or even what was not asked (citrapetita) if that corresponds.

[2] http://elderechoylaconstitucion.blogspot.com/2013/03/verdad-real-y-verdad.html

[3] http://yarelynicol.blogspot.com/2012/08/la-verdad-verdadera.html

[4]Zamora, Miguel. “La búsqueda de la verdad en el proceso penal”. ACTA ACADÉMICA, 54, pp. 147-186: 2014.

[5]http://www.eltiempo.com/archivo/documento-2013/DR-2004

[6]Falke,Ignacio Agustín. http://www.saij.gob.ar/ignacio-agustn-falke-verdad-formal-verdad-material-proceso-civil-apuntes-para-reflexionar-sobre-cmo-puede-influir-esta-discusin-ejercicio-diario-abogaca-dacf120023-2012-03-23/123456789-0abc-defg3200-21fcanirtcod

ABOUT THE AUTHOR

ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university.  She is host of a live TV program about analysis and debate of general interest topics.