Maestría en Derecho Penal y Procesal Penal

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    Aplicación de la consulta a un superior en los casos de dictamen abstentivo fuero de Corte Nacional
    (Fcultad de Jurisprudencia y Ciencias Sociales,Derecho,Maestría en Derecho Penal y Procesal Penal, 2021) Morales Zuñiga, Jhoselin Pamela; Acosta Morales, María Gabriela
    EXECUTIVE SUMMARY The present research work was divided into four chapters substantially complementary to the research topic; its objective is to elaborate a document of constitutional legal analysis on the application of the consultation to a superior in the cases of abstentive opinion with national court jurisdiction. Due process has always had a broad evolution in history and has been recognized as one of the primordial rights that allow respect for the rights of individuals, through a set of rules that seek to ensure their effective protection. In addition to the above, it is of absolute importance that such guarantees are enshrined in the Constitution of the Republic which, being the hierarchically superior norm, means that such rights are directly applied. Then the international conventions and treaties have not been left aside, as can be seen, in Ecuador there is a fiscal monopoly, a situation where the only provider of a good or service is the State. Thus, the government seeks to obtain income and dominate a sector that may be strategic for it. In this study, the methodology is qualitative, an analysis was made of the application of the different cases of abstentive opinion with national court jurisdiction, procedural subjects in the different hearings of Formulation of Charges, which showed the qualities that affect when applying the consultation to a superior, and in the quantitative part, the abstentive opinion with national court jurisdiction was counted; likewise, the xvii Inductive-Deductive, Analytical-Synthetic, Historical-Logical methods were used. Therefore, the expected result is to know to what extent the abstentive opinion of the Attorney General in cases of National Court jurisdiction affects the right to appeal, nowadays, in the Constitutional State of rights and justice, causing a violation of the principle of Procedural Challenge, since the operators of justice of the National Court, upon learning of an Abstentive Opinion by the Attorney General of the State being its highest authority, have no one to whom to raise the opinion for consultation, in order to revoke or ratify it.
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    El ejercicio privado de la acción penal y el garantismo procesal en el código orgánico integral penal
    (Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho penal, 2020-10) Paredes Fuertes, Fernando Eduardo; Acosta Morales, María Gabriela
    The purpose of this investigation is to deepen the study of the private exercise of criminal action. The procedure as much as its applicability in the exercise and even more its direct connection with the procedural guarantee, as a new figure of the criminal dogmatic that consists in establishing the international parameters as well as constitutional of the right of due process and of the victim and processed in the palestra of the procedural system. The quantifiable methods to determine an exact consolidation of values that allow criticizing, analyzing and projecting conclusions have been developed through statistical data of the causes entered in the last year in both public and private action crimes, and its application has been qualified in the procedural guarantee, analyzing and applying surveys to professional, the same ones that have issued their criteria regarding the guarantees of the right to defense, precautionary measures and judging in absence. Likewise, we analyzed the ways to extinguish the private exercise of the action as a way to enforce the claims of the parties, as well as those crimes existing in the Ecuadorian legal as crimes of private action in a comparison to foreign standards that contain a wide range of private crimes that could be included in our criminal system. The forgetting of the legislative body as well as the excessive interference of the State has caused the non-existence of reforms to guarantee an effective process of private action, consequently, the low application of it produces the violation of procedural guarantees as well as unnecessary budgetary spending and procedural congestion. Therefore, the reforms are necessary for the improvement of the private procedure of the action, as well as the effectiveness of the procedural guarantees under the protection of a correct application of criminal justice.
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    La reparación del procesado en los casos de ratificación del estado de inocencia
    (Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho penal, 2020-08) Vallejo Sánchez, Ana Lisbeth; Pazmiño Vargas, Klever Alonzo
    The purpose of this investigation is to analyze the reparation of the accused in cases of ratification of the state of innocence of a person who has been deprived of liberty for several days or months. The methodology used was the qualitative one based on documentary research on the problem raised, as well as the carrying out of case studies where people have been detained and deprived of their liberty for an indeterminate time, and that in the respective process has not been found elements of conviction to consider him as accused, declaring the dismissal in the case. It is proposed as a conclusion that there is no procedure where people can request comprehensive reparation against the State, to compensate for the damage caused by having been deprived of liberty to a person for being innocent. The legal norm repeats that if a conviction is reformed or revoked, through the appeal for review, the State must repair the person who suffered punishment as a result of said sentence and that once the responsibility of servants or servants for such acts has been declared, he will have to repeat against them in the manner indicated in the Organic Code of the Judicial Function. Although the third paragraph of article 15 of the Organic Code of the Judicial Function refers to the appeal for review as the ideal way for a conviction to be revoked or reformed and the obligation of the State to repair the person who suffered punishment as a result can be generated of such a sentence.
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    Prisión preventiva y el principio de proporcionalidad
    (Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-07) Serrano Abraham, Maria Eugenia; Benavides Benalcázar, Merck Milko
    In Ecuadorian legislation, as in the international treaties and agreements ratified by Ecuador, preventive detention is a precautionary measure of a personal and exceptional nature, because it restricts the right to freedom of the person. The Organic Code of Comprehensive Criminal COIP, provides for preventive detention under Article 534, establishing the requirements that must concur for it to be ordered, these being: elements of conviction that demonstrate the crime for which it is being charged, elements on intervention the defendant, they must be clear and precise, evidence to justify that the other precautionary measures are insufficient to guarantee the appearance in the trial of the defendant and that the crime is punishable by a penalty of more than one year. Likewise, the Inter-American Court of Human Rights has pointed out that it is important that alternative personal measures be rationalized, since the indiscriminate application of preventive detention contributes to increasing the levels of prison overcrowding, a feature that is characteristic of Latin American countries. Precisely, the principle of proportionality established in the Constitution of the Republic of Ecuador is the ideal mechanism that allows the judge to impose a precautionary measure observing due process. This study addresses the importance of the effective application of this principle, so that preventive detention meets a true legal nature and does not become a prejudgment or an anticipated penalty.
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    Cadena de custodia: valoración de prueba y tutela judicial efectiva en el procedimiento adversarial penal
    (Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-06) Falconí Gaibor, Sonia Paulina; Recalde Suaréz, Raúl Romano
    Because Ecuador is a constitutional State of rights, it has implicit in its actions, guarantee, protection and security, in the execution of the rights of citizens within a certain process. Since the issuance of the Constitution of 2008, fundamental rights of mandatory application were established, among them effective judicial protection, which is activated by the administrators of justice at the moment in which a cause comes to their knowledge. As judges, they are obliged to carry out an adequate evaluation of evidence within the processes, even more in the criminal sphere, where the freedom of the people is at stake; the evidence obtained, acted upon and legally incorporated into the process, constitutes the basis of the judge's decision, the documentary, testimonial and especially the expert evidence, allow him to know the procedural truth that must be concordant with historical or material truth. If the test is the basis of the judging system, it must have been obtained in an appropriate manner, without violation of the Constitution or laws, which would turn it into illegal, illegal, irregular evidence, etc., in order that the It is enough to sustain the decision of the judge, that is why.
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    La prenvención y erradicación de la violencia contra las mujeres y la vulneración del debido proceso legal, en la garantia a ser juzgado por un juez competente e imparcial
    (Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho penal y Procesal penal, 2019-06) Ruiz Abad, Carolina Fernanda; Garzón Villacrés, Iván Arsenio
    In this paper we will study how with the coming into force of the new Law to Prevent and Eradicate Violence Against Woman, in advance LOIPEVCM, constitutional guarantees of great importance are violated, such as being judged by a Judge who is competent, impartial and specialized inside family violence subjet. Competent judge, is one who acts by legal mandate, because the competence is born from the law, with what justice administrators are enabled to act in specific cases. COFJ (2009) At present, negative conflicts of competence have been generated and continue to arise between Judges of Criminal Guarantees and Judges of Violence against Woman, since competition has not been fully established in the mentioned LOIPEVCM. Impartial Judge, because the Judge must decide in merit of what was done in the process, without favoring any parties COFJ (2009), the new law violates this guarantee by reforming both the Código Orgánico Integral Penal, in advance COIP and the Código Orgánico de la Función Judicial, in advance COFJ, in this sense the same Judges of Violence must be who know all the stages of the criminal process in femicide crimes and violence against woman and members of the family nucleus. Finally Specialized Judge, the one who acts by reason of the area of his competence. COFJ (2009), this a constitutional guarantee provided in art. 81 of the Constitution (2008) for the treatment of infractions, againt woman and members of the family nucleus, judges must be specialized people in order to know and resolve this type of infractions. With Resolution 11-18 of the National Court of Justice, once again attempted against this principle by removing the Violence Judges competence, so that they can not know the stage of judging the mentioned crimes. The lack of competent, impartial and specialized judges in matters of violence, violates constitutional guarantees and rights that assist both victims and defendants, therefore it needs a legal reform in the area of competence that logically will be stablished in a clear and precise manner to whom impartial and specialized judicial authority corresponds the knowledge of the infractions of violence against woman and members of the family nucleus.