Spanish Spanish

Abstract

This research develops the inversion of the burden of proof in the action of protection, taking into account that the Organic Law of Jurisdictional Guarantees and Constitutional Control, in Art. 16, final clause, extends the cases of inversion of the burden of proof, in the event that the challenged act or omission comes from a private party, presuming the facts to be true when it is a matter of discrimination or violation of the rights of the environment or nature. However, the Organic Law of Jurisdictional Guarantees and Constitutional Control, attempts to convert the general rule into an exception, by regulating that the plaintiff must prove the facts, except in cases where the burden of proof is reversed, according to Art. 16.1. Proof has been the subject of an important development in the substantiation of judicial proceedings, since it is crucial not to remain in a superficial view of the facts. On the other hand, the same or even higher standards are required than when interpreting and arguing in matters of law. The research will focus on the study of the design that the legislator has established for the distribution of the risk of error through the reversal of the burden of proof in the protective action. Through a dogmatic legal approach, the relative legal presumptions have been identified as the central element of this distributive evidentiary system, and the standard of proof as the key criterion that raises the level of justification of the facts.

Key words: Protective action, evidence, reversal of the burden of proof, right to defense.