Early production of evidence outside the judicial courts: a proposal for dejudicialization

Abstract

Currently, access to justice is understood in a broader sense, not limited only to access to the Judiciary, but also to the pursuit of the concrete realization of a fair legal order. At least in part, the deficit in access to justice has been addressed by public policies of dejudicialization, which involve transferring certain acts and procedures to agents external to the Judiciary's structure. In this context, the article aims to examine the possibility of dejudicializing the early production of evidence. Based on considerations about the nature and purpose of this procedure, the text examines the nature of the right to evidence, the restrictions on this right, and the procedures which must be adopted by the agents responsible for its execution, evaluating the potential for its conduction outside of the legal courts. Following the juridical-dogmatic methodological approach, under the scope of “social scientific technology”, and with a predominantly propositional bias, the article is based on normative, doctrinal, and jurisprudential inputs, drawn from national bibliographical research. The conclusion reached is that dejudicialization of this type of procedure is possible, while noting the need for legal precautions to avoid the suppression of rights and, ultimately, the restriction of access to justice.