La fractura de la tutela judicial efectiva: estanqueidad probatoria y revictimización institucional en el abordaje de la violencia de género en Colombia

Abstract

The study examines the dysfunctionality of the Colombian procedural system in addressing gender-based violence, manifested in an interjurisdictional evidentiary compartmentalization that undermines the effectiveness of enhanced protection and contravenes the due diligence mandate. Through an analysis of the normative and functional tension between the evidentiary regime of the accusatory criminal process and that of civil-family proceedings, it shows how the operational disconnection between criminal and family jurisdictions imposes on the victim a redundant burden of producing evidence concerning the same violent phenomenon. This duplication does not arise from autonomous epistemic requirements but from the structural evidentiary self-sufficiency of each jurisdiction, which demands independent reconstructions of events already documented by the criminal apparatus. The empirical dimension confirms the systemic nature of this dysfunction. Forensic data as of July 2025 record 22,116 cases of intimate partner violence—overwhelmingly involving female victims—that simultaneously traverse criminal and family forums. Within this large universe, the absence of interjurisdictional circulation of evidence results in duplicated expert examinations and repeated testimony, despite the existence of state-generated technical evidence produced in criminal proceedings. The practice of independent evidentiary evacuation disregards the constitutional standard that recognizes the central value of the victim’s narrative in contexts of gender-based violence and the sufficiency of contextual evidence when it is coherent and consistent. The system thus requires the formal reproduction of a “single piece of evidence” that already exists, transforming jurisdictional autonomy into a technical barrier to effective protection. It is concluded that this evidentiary fragmentation nullifies procedural economy, shifts onto the victim the cost of institutional disarticulation, and perpetuates structural legal unprotection. So long as evidentiary autonomy continues to impede the effective transfer of evidence between jurisdictions addressing the same aggression, the gender perspective will remain declaratory rather than operational. Evidentiary compartmentalization thus reveals an internal contradiction of the system: it proclaims comprehensive protection against gender-based violence while organizing its procedural response in a fragmented manner, institutionally reproducing the very harm it seeks to eradicate.