Ineficacia normativa del artículo 177.6 del COGEP frente a la negativa injustificada de rendir declaración de parte; propuesta de reforma sancionatoria

Abstract

The present research examined the legal issues arising from the unjustified refusal to give a party’s statement within the normative framework of the Código Orgánico General de Procesos. Although the procedural rule recognizes the duty to testify and provides various mechanisms aimed at ensuring the practice and effectiveness of this evidentiary means, the legislator failed to establish a sanctioning consequence in response to the persistence of the reluctant conduct of the procedural party who refuses to testify. Such normative omission was identified as a factor that weakens the effectiveness of this evidentiary mechanism, encourages evasive procedural practices, compromises equality between the procedural parties, and directly affects the constitutional rights to defense and to effective judicial protection. From a methodological perspective, the study was conducted under a qualitative approach, focused on the interpretation and understanding of the legal problem raised, without requiring the comparison of quantitative data. Complementarily, dogmatic-legal, hermeneutic, documentary review, and comparative methods were employed. The results obtained made it possible to determine that the judicial assessment of the refusal to testify in accordance with the rules of sound judicial reasoning, as it constitutes a complex intellectual exercise for the judicial authority, is materially insufficient to deter obstructive procedural conduct. Consequently, the incorporate proportional and duly reasoned sanctions become essential, conceived as complementary mechanisms to evidentiary assessment, aimed at strengthening the principles of procedural good faith and procedural loyalty, and at consolidating an oral, adversarial, and rights-based procedural model in harmony with the constitutional State of rights and justice.