Can we talk about “burden of proof” in the field of Customs Sanctioning Law?

1. Let's start here

I admit that the path that I propose to follow may seem a little disconcerting from the start, but I ask you to continue moving forward with me without the initial prejudices that it may generate intuitively, and I will try – with good reason – to answer the question in the title.

There has been much talk within Customs Law, and particularly within Customs Sanctioning Law, about the “burden of proof”, the “reversal of the burden of proof” and more intensely about the “dynamic burden of proof”.

However, I understand that we have been admitting that private law concepts may be transferred from adversarial procedural contexts to administrative procedures and judicial processes of a sanctioning nature, where they are not applicable.

There are, without a doubt, important differences between judicial proceedings for customs violations and administrative proceedings for customs violations, as well as with regard to corrective (or also called disciplinary) procedures.

Obviously, in the former, when the investigation of the existence of the facts that can be subsumed in infraction types is substantiated before an impartial third party, in an adversarial judicial process, a separation is determined between the subject who exercises the action and who must resolve. Thus, in them, a subject assures (alleging) the existence of facts that configure a customs infraction and its connection to a subject, and therefore in the process the referred facts must be proven, in order to be able to seek a conviction of the accused as the author of such facts. Meanwhile, it will be another subject who must resolve, on the basis of the necessary proof of the occurrence of the facts and their relationship with the subject to whom they are attributed, to impose on the latter the sanctioning consequence legally provided, to the degree that is also determined in the sanctioning norms. 

However, in customs administrative procedures – whether for customs violations or administrative faults (correctional or disciplinary) – the person who must determine the occurrence of the facts that may constitute a customs violation or an administrative fault, and their connection with a subject; and once this is verified, impose the legal consequence established by customs legislation, to the degree also established therein, is the same subject, the Customs Administration. 

In Uruguay, the investigation of the facts that may determine the configuration of a customs violation, and eventually, the imposition of the sanction linked to said violation will be substantiated in judicial proceedings, that is, before the Judicial Branch (1).

This is the case for all customs violations, except for the customs violation of Contravention, which is settled through administrative channels, before the National Customs Directorate, which is the entity that can impose the sanction for said violation.

In most other Latin American countries, however, the investigation of the facts that constitute a customs violation is carried out administratively by the Customs Administration, which is the one that can impose the corresponding sanction.

Thus, in the judicial process for customs violations, the assignment of the “burden of proof” to the parties, and thus, its consequences, has become naturalized. But in addition, it also refers to the “burden of proof” of the Customs Administration in the administrative procedure for customs violations.

This leads us to ask: Can we speak of a “burden of proof” in the field of Customs Sanctioning Law?

2. On the current questions about the “burden of proof rule”

It seems necessary to take a step back in order to verify whether the rule of the burden of proof in civil procedural matters can still be relevant. Substantially, whether as a rule it somehow resolves the function initially established to be operational in the process of finding out the truth, in the resolution of conflicts submitted to a third party.

Without prejudice to its remote origin and evolution (3), as NIEVA FENOLL notes, the authentically scientific appearance of the burden of proof occurs at the beginning of the 4th century. In its initial function, the burden of proof determines who must prove or carry out the proof, and its manifestation occurs through a rule that standardizes all cases to a single statement: the one who asserts a right must prove it, and the one who denies it must prove its extinction. In this sense, the rule of the burden of proof determines that it is up to the plaintiff to prove the fact that he alleges as the basis of his claim, while the defendant must prove the fact that constitutes the basis of the exception (XNUMX).

However, the formation of the burden of proof rule was in line with the guidelines of the legal assessment system, which, when the system of free assessment of evidence was introduced, makes it lose its original relevance, and it becomes important not who provides the evidence of the fact, but knowing the reality, regardless of who provides the evidence for the investigation of the fact (principle of acquisition of evidence). In this sense, following the work of ROSENBERG, it becomes relevant no longer who alleges a fact or proves it (even admitting that the judge was the one who procures the evidence of it), but what is important is to find out the veracity of the facts, which will be called "objective burden of proof", and which will then be resized as an effective distribution of the risk of not having managed to prove it, which will find its answer in the subject who claimed the legal consequence of that fact (5).

TARUFFO says that the rule on the burden of proof does not find an effective application in the course of the process and does not really affect the evidentiary initiative of the parties. Therefore, it determines that one can only speak of an objective burden of proof, as long as it only finds application in the final decision, and constitutes a rule of judgment that the judge must apply in that decision. 

This shifts the rule of the burden of proof to the end of the process, and only for the case in which, after evaluating the evidence, it is not possible to have certainty about the existence of the facts that are the subject of the evidence. Thus, said rule must be complied with by the judge when, having analyzed the evidentiary material produced in the process, and not having found certainty about the existence or nonexistence of a fact that is the subject of the proof (that is, that he does not consider it proven), he must place the consequence of the lack of evidence on the person who had the burden of proving the existence or nonexistence of the fact, according to the aforementioned distribution of the burden of proof, which was previously established by the Law.

As TARUFFO points out, the burden of proof aims to regulate the behavior of the individual parties in the dynamic context of the process, and plays a fundamental epistemic role aimed at ensuring that the final decision is based on a true determination of the main facts of the case, and additionally, it has a publicity function consisting of establishing a criterion according to which the judge must reach the final decision even in the absence of proof of such facts (6).

However, the rule of the burden of proof does not apply when what it foresees happens, but the opposite. The rule acts as a rule of referral. The burden of proof, conceived in this way, does not determine who has the obligation to produce the evidence, but rather who bears the risk of it not being produced.

This leads NIEVA FENOLL to conclude that the above does not lead to a "distribution of burdens", or even a question of "burdens", but rather that we are simply faced with the investigation of the facts in the process, which is the product only of the evaluation of the evidence and does not depend on any "burden".

Thus, if the facts are proven, their existence will be declared, and vice versa if they are not proven, with the legal consequence of the acceptance or rejection of the claim that this entails.

Therefore, with or without the rule, the result would be the same; only when the existence of the fact is proven can it be considered proven, and the legal consequence linked to that fact can be applied. 

Since the process is the area where the application of a rule is sought – a rule that has as its antecedent the existence of a fact, which is linked to a consequent – ​​if the fact is not proven, a resolution cannot be issued that applies the claimed consequence. 

Ultimately, what must be sought is the correct application of the law to the facts of the specific case. This shows that the rule of the burden of proof is unnecessary or useless in the system of free evaluation of evidence (7).

If this is the situation in Civil Proceedings, of an adversarial system, we must carefully observe the particularities of judicial processes and customs procedures of a sanctioning nature in order to provide evidence.

3. Verification of the existence of the infringing facts and the application of their sanctioning consequences.

It should be remembered that every legal norm conditions the production of its effects to the existence of a certain factual situation (8).

Thus, it can be said that a legal norm is a statement that correlates facts or conduct with solutions. In this way, the norm determines that given a “factual assumption” a “legal consequence” is attributed to it.

Penalty regulations are no exception. Even though the infraction-penalty binomial could be presented in two different regulations, they are articulated together, in such a way that the configuration of the infraction will be conditioned on the events described in the type having occurred. In this regard, the sanction may only be applicable if it has been determined that the infraction has been configured. 

It should be clarified that not all conduct that may be contrary to a customs regulation - and therefore, unlawful - will be customs violations, since some violations, due to the degree of impact on the customs legal order, may have been classified as crimes; and others, on the other hand, due to their low significance or harmfulness, may not be relevant to be considered by the legislator as punishable conduct, as they do not significantly affect the legal asset that is intended to be protected by the list of crimes and violations. Similarly, some other conducts, even if they are unlawful, significant and harmful, may not have been foreseen by the legislator, and therefore, are atypical, and will not be affected by a sanction(9).

Considering this, it can be said that the way to determine which behaviors are likely to constitute a customs violation will be given by the review of those behaviors that are described in the types of violations in force in each country.

Likewise, for a “fact” to be classified as an “infringement” and subsequently result in the application of a sanction, it requires the existence of previous and subsequent “events”.

In this regard, for non-compliance with a particular customs regulatory provision – therefore a violation of customs legislation – to result in the application of a sanction, three conditions must be met, namely:

a) That the conduct contrary to said normative precept has been selected by a legal norm with the purpose of conferring it a second coverage (that is, with the purpose of normatively reinforcing compliance with the aforementioned customs normative precept), and that for such purposes the occurrence of said conduct is associated with the application of a sanction; for which the legislator describes the conduct in a norm, structuring the type of infraction and establishes the corresponding sanction;

b) That a subject acts (performs) such conduct (active or passive); and

c) That the existence of such conduct is verified through an administrative procedure or a judicial process, and the subject who carried out the conduct is attributed the legal consequences provided for in that regulation.

However, in order to establish the configuration of a customs violation and the imposition of its sanctioning consequences, the determination of a State body that holds the authority is required. the punitive or sanctioning power, before which the previously established procedure or process is followed, in order to verify the conduct attributed to a subject and its typical adequacy to the customs infraction, the extent of the reproach to the conduct actually developed by the author of the same, as well as, the possible causes of exculpation, and finally, in the cases where appropriate, the effective implementation of the sanction to the person or persons responsible.

Thus, the purpose of the Customs Process or Procedure must be framed in the investigation of the existence of infractions and the judgment of the eventual conduct reported or investigated, attributed to one or more persons (physical or legal), to determine if it can be fitted into the type of infraction provided, and only in such case, impose on those the consequences provided for by the legal norm (10).

Therefore, first of all, the Customs Judicial Process (or Administrative Procedure) for Customs Violations must be aimed at seeking judicial (or administrative) verification of the occurrence and veracity of the reported (or investigated) events, and their attribution to one or more persons. 

Secondly, it must be aimed at verifying the fit (or not) of the facts in the infraction norm, and only if this is verified, the conduct of the author (or authors) must be judged by assessing the guilt of the subject (unless the responsibility was imputed to him under the title of objective responsibility). 

Finally, thirdly, unless there is a cause for existing justification (11), the consequences provided for in the legal norm must be imposed on the author or authors and/or other responsible parties, always within its limits, with the degree of proportionality to the conduct developed by the author or authors, guaranteeing the offender, in all cases, the full exercise of his rights of defense (12).

4. The object of proof in judicial processes and administrative procedures in customs sanctioning matters: the accreditation of the existence of infractions

Now, if within the framework of a judicial process or an administrative procedure what determines the facts to be proven are the substantive norms, it must be pointed out that the norm that must guide the object of these will be the sanctioning norm whose configuration is assumed to have occurred, and not the norm that regulates the regime that is understood to be breached or violated in the case. 

Therefore, it is necessary to know those facts of the past with legal relevance, which, if their existence and production are verified, determine that a customs violation or an administrative fault (correctional or disciplinary) has been configured.

So, it is worth asking: What are the facts of the past with legal relevance in order to resolve the merits?

Obviously, due to their principal nature, the facts that determine the typical action. But also those that determine the connection or participation of a subject in relation to such facts; those that determine the subject's action in the facts (which allow determining the degree of culpability); and the other facts that may determine an exemption from liability of the subjects linked to the facts.

Therefore, the acquisition of all relevant evidence for the decision is one of the most important purposes in administrative sanctioning processes and procedures.

Thus, according to the facts of the case that are to be elucidated in the administrative sanctioning process or procedure, these will be the facts that must be proven in order to apply the sanctioning consequence resulting from the judicial or administrative verification of the configuration of the customs infraction or administrative fault (correctional or disciplinary).

However, there are certain tendencies to orient the administrative sanctioning processes and procedures towards demonstrating the possible violation of a certain customs regime or various regulatory norms, which although it may be "protected" with a sanctioning norm, does not determine per se, whose mere violation constitutes the customs infringement or administrative fault related to it.

The infringement or fault includes the elements required for them to be configured and for the sanctioning consequence (sanction) to be applicable. 

Whether the sanctioning rule (infraction or administrative offence) contemplates with certain precision all the elements of the regime that may be breached, or does so by means of its referral, or by means of an open type, in any of the cases, the focus of attention is not on the legal regime that is understood to have been transgressed, but on the type of infraction or on the description of the administrative offence.

This, which seems obvious, is not so in practice, and processes and procedures are observed that are aimed at demonstrating the inconsistencies produced in relation to the norms that regulate the regimes or procedures, the possible operational "sloppiness", various breaches by the accused subject, and ultimately, the object of the judicial process or administrative procedure to determine the occurrence of a customs infraction or administrative fault is abandoned. 

Let's look at the following case, which largely illustrates what we are saying.

A situation that has repeatedly given rise to inappropriate debates in Uruguay's courts is the existence of inconsistencies in relation to Certificates of Origin, and the State's claim to attribute to said situation the configuration of an infringement of difference of origin. 

Difference in origin is one of the assumptions of the customs infringement of “Difference”, which provides for the configuration of the referred infringement when, during the final import, a difference is found in the origin of the merchandise, between the declaration of the applicant of the referred customs regime, and what was actually found. Substantially, the referred infringement is configured if a certain origin of the merchandise is declared and the merchandise has a different origin than that declared.

Faced with this situation, which may have its origin in various documentary inconsistencies (13), it has been attempted to revolve around the regime of origin, the form of accreditation of origin, various considerations regarding the exemption of taxes, etc. However, all of them do not address the only and most relevant point in question, so that a sanction can be imposed in a sanctioning customs process, and that is, whether said inconsistency constitutes a customs violation of difference. 

As long as the resulting declaration matches the origin of the goods, and the origin can be proven in court, a framework where the legislator provided that the occurrence of customs violations should be corroborated, it is irrelevant, for the purposes of configuring the customs violation of difference (of origin), that the instrument used to prove the origin had been disregarded. Therefore, such a situation cannot configure a customs violation of difference, since what the type requires is the discrepancy between the declared origin and the origin of the goods. Origin of the merchandise that can be proven in the judicial process.

In fact, as soon as it is noted that the customs sanctioning process is a verification process on the existence of infractions, and that they emerge purely and exclusively by comparing the facts whose existence is proven in the process with the sanctioning norms, and that once this is verified, the norm that establishes the sanctioning consequence must be applied, it must be concluded that the object of the process is delimited by the norms that generate the only consequence that can be imposed. That is, the classified customs infractions.

5. On the admissibility or not of the “burden” of proof in matters of customs sanctioning law

COUTURE defines the procedural burden: "as a legal situation established by law consisting of the requirement of a voluntary conduct, normally established in the interest of the subject himself, and whose omission will bring about a serious consequence for him"(14). Adding that: “Thus configured, the burden is an imperative of self-interest. The person who has the burden is implicitly compelled to carry out the intended act; it is his own interest that leads him to it. The burden is configured as a threat, as an embarrassing situation that burdens the right of the holder. But the latter can get rid of the burden by complying.”(15).

As DE PAULA RAMOS warns, the “burden” is a weak subjective passive situation, which describes a behavior that the Law “values” but does not categorically demand, and which allows the subject to choose whether or not to act in accordance with the behavior (positive or negative) “valuing”, without the non-performance of the conduct constituting an illicit act. 

On the other hand, the “duty” is a passive subjective situation with strong subjection, which establishes an imperative legal rule and describes a behavior (positive or negative) that the Law demands categorically. The obligated subject does not have the possibility of choosing whether or not to act in accordance with the behavior (positive or negative) so that, if he does not do so, an illicit act is configured.

If we apply these ideas to the evidentiary activity of the Administration in an administrative procedure, and even more so in an administrative sanctioning process, we can conclude that referring to the “burden” of proof on the part of the Administration is technically inadequate and significantly dangerous.

As soon as one tries to advance with the referred rule within the field of administrative sanctioning activity, one observes its functional discrepancy, since it collides head-on with the duties of the Administration, the necessary lack of interest that the Administration must have in a particular result, and only in the full realization of the right, and its orientation towards the search for material truth for that purpose. 

In the area of ​​administrative procedures, assigning the Administration a burden of proof determines an interest in optional execution, and although it would imply an adverse consequence, if its result were negative, this is far from the function that the Administration must fulfill.

Even in the matter of reviewing administrative acts issued by the Customs Administration, since the act is subject to the jurisdictional review of a third party, it does not determine the verification of facts other than those of the administrative act, but rather, the appropriate resolution in relation to the factual verification carried out through administrative means, and the correct application of the law, which is noticeable in the motivation of the resolution. Therefore, in this context, there is no reference to the burden of proof either. 

If it is determined that the Customs Administration issued an administrative act imposing a sanction that was not established, it failed to comply with its duty to prove to the degree required by the applicable standard of proof. The risk allocations determined by the objective burden of proof, which is inapplicable to it, are not transferable.

Likewise, in matters of judicial proceedings, the representative of the State, holder of the fiscal action, has a power-duty to direct his procedural action towards the search for material truth, and not towards the realization of a diverse particular interest (whether fiscal or repressive). 

In the case of the State, the only orientation of its procedural conduct is the correct application of legal norms, and not an interest in carrying out actions contrary to these norms, even if this could have a favorable economic result. Because, in this way, under the guise of a sanctioning regime, it would seek a revenue-generating purpose, disinteresting itself in the correct application of the law. 

Therefore, the representative of the State in a judicial sanctioning customs process must act in accordance with the duty of the State.

6. The guiding principle of the Customs Sanctioning Law of “preservation of the status of innocence” (presumption of innocence) and its impact on doubt

As we have said, the Customs Sanctioning Law is made up of the set of legal norms and principles that regulate the punitive power of the State with the purpose of guaranteeing the preservation and restoration of the legal order in customs matters through the remuneration of a sanction, safeguarding – simultaneously – the individual guarantees of the subjects to whom said legal consequence is intended to be imposed (16).

Thus, the regulation of the State's punitive power is materialized in repressive norms that tend to preserve the legal system, and to reestablish it when it has been violated, and this is achieved in the manner and with the intensity that society (State) has understood to be satisfactory for the specific protection of the legal asset being protected. 

Furthermore, the principles of Sanctioning Law play an essential role in the effective and adequate containment of the State's punitive power, always articulating and directing it towards the achievement of its objective. 

The principles of punitive law constitute the shield of protection for people (physical and legal [or ideal]) against possible excesses of State power.

But these principles also have a transcendent function in the germinal stage of repressive norms, by receiving them in their contents. Thus, for example, the legislator must draft the type of infraction in accordance with the principle of typicality, which implies that the conduct that is intended to be repressed is effectively described in the norm.

At this point, it can be observed that, since the judicial process or the administrative process is an area of ​​legal elucidation emerging from the substantive norms, these determine what the factual bases are for a certain resolution. 

Thus, in terms of sanctions, it can be observed that, in order for a conviction to be handed down, all the elements of the crime must have been verified, under the established evidentiary standard. This turns out to be the concretization of the rule that connects antecedent facts with consequent ones (sanction). 

On the other hand, an acquittal judgment may result from the confirmation of the non-existence of some or all of the elements of the type, therefore, the verification that the customs violation has not been configured, and given this, the verification that there is no rule that must be applied. In other words, there is certainty that the event did not occur.

But an acquittal may also be based on the lack of verification of the existence of one or more elements that are necessary for the normative consequence to apply, and in such a case, despite not being confirmed that the event did not occur, it could not be confirmed either that it actually occurred. That is, there is no certainty either of the occurrence of the event or of its non-occurrence. There is “doubt.”

At this point it should be noted that, once the evidence has been assessed by the Judge, in the judicial process, or by the Customs Administration, in the administrative procedure, and there being no certainty, but rather doubt, in sanctioning matters, the principle of "presumption of innocence" will operate, which determines that in the event of doubt, a decision must be made in favor of acquittal. 

In sanctioning proceedings, the alleged risk of lack of certainty is not distributed in the event of doubt, as provided for by the objective burden of proof. Doubt never harms the accused, since the principle of presumption of innocence applies.

It should be noted that the “presumption of innocence” is not technically a presumption, given its structure, nor does it fulfill the same function. Notwithstanding this, it represents a principle that guides the person who must resolve (Judge or Customs Administration) in the entire search for the truth of the facts. It is applicable not only at the end of the process, and in case of doubt, but throughout the process or procedure. For this reason we prefer to call it “Preservation of the status of innocent”,

Those who seek to qualify the application of the principle of presumption of innocence, as well as other principles of Customs Sanctioning Law, in the field of administrative infractions, customs infractions, and administrative faults, seek to reduce the guarantees of the administered with the purpose of simplifying the task of the Administration and distancing it from the search for material truth. This is generally done under the pretext of achieving general interests, even when it means sanctioning a person in an unfounded manner (substantially, an innocent person) and therefore, contrary to the applicable rule.

In the attempt to apply the principles of Sanctioning Law to administrative activity in a nuanced manner, including the presumption of innocence, a legal discourse is observed that is oriented towards the decline or relaxation of the effectiveness of the Administration in the search for the truth.

The same thing happens when trying to establish less demanding standards of proof, which facilitate or reduce the effort to prove the existence of the fact that is required as true for the application of the sanctioning rule.

Now, if we observe the function of the burden of objective proof, that is, to distribute the risk of not having reached certainty about a certain fact between the parties in conflict, in relation to who should prove it, we can observe its lack of effectiveness in administrative sanctioning procedures, since in these the burden cannot be placed on the decision-maker (Administration). But in addition, the principle of innocence is applicable, which determines the way in which the person who decides should act in the face of the dubious where it is located.

7. We are again around the “truth” and the search for material truth

Although we understand that in the search for the truth we can only find certainties, the judicial process and the administrative procedure in sanctioning matters must direct their evidentiary activity towards the search for material truth.

Certainly, such guidance will be necessary to achieve the degree of certainty required for the evidence. The degree of certainty required for the evidence is set by the standards of evidence, which contain criteria that indicate when proof of the existence or non-existence of a certain fact has been obtained. In short, it is the degree of sufficiency of the evidentiary material required to verify a certain fact.

Thus, the certainty regarding the occurrence of the infraction determines the application of the legal consequence in the face of judicial or administrative verification of that fact. 

Conversely, the certainty regarding the non-occurrence of the infraction, or the certainty regarding the lack of relation of the fact with the subject to whom it was initially attributed, determines the non-application of the legal consequence, when it is judicially or administratively verified that the fact did not occur, or that the subject was not related to it.

Finally, it can be concluded that, in terms of sanctions, an acquittal may be based on the certainty that the offences did not occur, or on the lack of evidence that determines that the offence was actually committed. On the other hand, a conviction can only be based on certainties.

8.Almost as a conclusion

The burden of proof no longer has a reason to exist in civil proceedings given the system of free evaluation of evidence. With or without the rule of burden of proof, the result is the same. 

It can be concluded that, even though in civil proceedings the usefulness of the burden of proof is already questioned, and it is described as unnecessary and useless(17) or as having no necessary connection(18), in judicial proceedings and administrative procedures in sanctioning customs matters, they are not applicable due to the situation in which the representative of the State (judicial proceedings) and the Customs Administration find themselves. That is, the duty to reach the material truth, and to correctly apply the law.

However, if the process ends and the evidence is assessed and there is no certainty that a fact occurred, the fact is simply not proven. The legal consequence that requires verification of the fact cannot be claimed or imposed.

In administrative proceedings, there is no burden of proof on the Administration, but rather the duty to prove the facts legally required for a sanctioning charge, otherwise the administrative act will be unmotivated.

In any case, the burden of proof is ineffective in matters of sanctions, given that the presumption of innocence resolves cases of non liquet (not clear)

In both judicial and administrative proceedings, it is possible to impose a sanction only if it has been established that the infraction occurred and that the person accused of being the offender was responsible. In such cases, the right to the specific case is exercised (infraction – sanction).

Doubt or lack of certainty always determines acquittal (final manifestation of the presumption of innocence).

As a corollary to this, it is worth remembering what Jordi NIEVA FENOLL said, in that “It is not easy to say goodbye to something that has always been with us”; However, it is time to say goodbye to the burden of proof, and focus on the search for material truth, and the preservation of the status of innocence.

Don't you think so?

---

1. On the judicial process for customs violations in Uruguay you can see verbatim in: VARELA, Andrés. “Reflections on the judicial process for customs violations in Uruguay”, in YACHAQ Law Magazine No. 11, from the Law Students Research Center (CIED), Cusco, National University of San Antonio Abad del Cusco, 2020, p. 21-38.
2. Regarding the Customs Offense of Contravention, see: VARELA, Andrés. «Revisiting the customs offense of «contravention» in Uruguay», YACHAQ Law Magazine No. 13, from the Law Students Research Center (CIED), Cusco, National University of San Antonio Abad del Cusco, 2020, p. 115-131.
3.  For reasons of scope and purpose of this document, for a review of the origin and evolution of the burden of proof in the various processes and systems of assessment of evidence, I refer the reader to the work of NIEVA FENOLL, Jordi, "The burden of proof: a relic that should be abolished", in Against the burden of proof. NIEVA FENOLL, Jordi, FERRER BELTRÁN, Jordi, and GIANNINI, Leandro J., MARCIAL PONS: Madrid, 2019. Pages. 23 to 52.
4. TARUFFO, Michele. “Almost an Introduction” in Against the burden of proof. NIEVA FENOLL, Jordi, FERRER BELTRAN, Jordi, and GIANNINI, Leandro J., MARCIAL PONS: Madrid, 2019, page. 12.
5. NIEVA FENOLL, Jordi, Op. Cit. p. 38 and 39.
6. TARUFFO, Michele, Op. Cit., p. 16.
7. FERRER BELTRÁN, Jordi. “The Dynamic Burden of Proof. Between Confusion and the Unnecessary”, in Against the Burden of Proof. Madrid: Marcial Pons 2019, page. 35.
8. PALACE, Lino Enrique. Manual of Civil Procedural Law, Ed. Abeledo-Perrot, 2001, pp. 391-392.
9. VARELA, Andrés. “Reflections on the judicial process for customs violations in Uruguay”, in YACHAQ Law Magazine Nº11, from the Law Students Research Center (CIED), Cusco, National University of San Antonio Abad del Cusco, 2020, p. 194.
10. VARELA, Andrés. “Reflections on the judicial process for customs violations in Uruguay”, Op. Cit., p. 197.
11. For example, the state of necessity, which excludes illegality.
12. VARELA, Andrés. “Reflections on the judicial process for customs violations in Uruguay”, Op. Cit., p. 197.
13. We prefer to refer to “inconsistency” so as not to categorize it as “errors”, given the discussions on what may be considered a formal error or a substantial error in any of the original Regimes.
14.  COUTURE, Eduardo J., Fundamentals of Civil Procedural Law, Depalma Editions, Buenos Aires, 1964, p. 211.
15. Ibid.
16. FIGUEREDO, Flavia and VARELA, Andrés. “Customs Agents and Customs Violations and Sanctions”, Customs offences and sanctions, PARDO CARRERO, Germán, Editor, Bogotá, Tirant lo Blanch, 2022, p. 314
17. FERRER BELTRÁN, Jordi. Op. Cit., p. 35.
18. TARUFFO, Michele, Op. Cit., p. 19