Maestría en Derecho Constitucional

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El derecho consetudinario en la justicia Indigena
(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho Constitucional, 2019-11) Vargas Villacrés, Borman Renán; Tite, Segundo Ramiro
The Constitutional Rights constitute a manifestation in the National Constitutional, of the Human Laws that have been recognized by the international legal instruments. They recognize a set of prerogatives that, in essence, constitute the recognition of the status of being human, manifested in various environments, in which it’s essential as a sign of civility, the guarantee of a set of faculties that enable integral human development. In indigenous justice in Ecuador, by establishing itself as an autonomous jurisdiction, it implies the possibility of communities, peoples and nationalities to know, prosecute and punish those who violate those acts that violate community norms within their territories and by some member of the community. This recognition of legal plurality in Ecuador is a step forward in the recognition of ancestral cultures, but in terms of rights for those involved, it poses a challenge to the difference in the ordinary indigenous worldview. Thus, the absence of written norms, typical of the rights of these peoples, which is transmitted orally from generation to generation, manifests a set of restrictions on constitutional rights in the prosecution of the violator of the rules, such as the presumption Of innocence, the possibility of proposing evidence, access to defense, proportionality between offense and punishment, so that, in many cases, it contradicts the exception to that jurisdiction. It recognizes the proper administration of indigenous justice, but provided that the human rights recognized in the Constitution and international legal instruments aren’t violated, an issue that will build the central theme of this study
El principio de control de convencionalidad en las sentencias emitidas por la corte Constitucional del Ecuador
(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Comunicación, Desarrollo y Cambio Social, 2019-12) Pascumal Luna, Ricardo Fabian; Mayorga Naranjo, Nelson Eduardo
This article gives an account of the object of the control of conventionality, in reference to the subjects obliged to apply it in the domestic legal system, from the perspective of the Inter-American Human Rights System. However, it was inquired how this principle is applied in the sentences issued. by the Constitutional Court of Ecuador, and its impact on the internal legal order of the State. The importance and interest of this research is focused on the fact that through the methodology of content analysis, 276 sentences of the highest constitutional body in the country were studied, with the purpose of determining the degree of application of conventionality, understood as conventions, judgments, advisory opinions and in itself the control that all administrative, judicial and jurisdictional authority must perform. The results were surprising, 99% of the sentences studied they do not apply the principle of conventionality control. We would explain why Ecuador has been declared internationally responsible before the Inter-American System, in addition to the payment of millions in compensation for reparations to the victims. The conclusion drawn from this investigation is that we have an unconstitutional legislation and jurisdictional system. It is essential to conclude that the Constitution of the Republic of Ecuador and no other norm of the internal legal order does not contemplate how and who should perform the control of conventionality of all acts derived from the jurisdictional organ, existing a normative and dogmatic vacuum in this regard.
El derecho al libre desarrollo de la personalidad de los adolescentes y el principio de legalidad en los delitos de violación
(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Comunicación, Desarrollo y Cambio Social, 2019-12) Arcos Morales, Jorge Enrique; Frias Raza, Sergio Edmundo
The proposed investigation takes place in the scenario of the right to free development of the personality of adolescents and the principle of legality applied in the criminal proceedings for rape offences, when the accused are offending adolescents. Thus, at first it would seem that there is an antinomy between legal principles; thus determining the objective of the investigative work, i.e. to check whether there is indeed a conflict between principles, as it is conceived superficially or failing that there are events that link the differentiation between a valid rule versus a current rule. The research was based on a qualitative approach; cases and decisions issued in criminal proceedings against adolescent soreness for rape offences were analysed; this from events that translate to the exercised adolescents their right to free personality development have had sexual relations with effective consent; facts that in the legal scenario and assessed in the criminal proceedings, come to determine socio-educational measures that are depriving of liberty against the indicated adolescents. It can be said that the Constitution of the Republic of Ecuador, when it states that adolescents will enjoy the common rights of the human being, in addition to those specific to their age; recognizes and guarantees a catalogue of rights, in favour of children, this with the aim of reaffirming the recognition of children and adolescents, as subjects of rights equal to all human beings, in all meanings and without limitations, satisfying the need for the right legal instruments to protect and ensure their integral development. It was concluded that both the right to free development of personality and the principle of legality are valid rules; however, in criminal cases where rape offences have been prosecuted against adolescents who have had consensual sex, it is verified that the principle of legality applies out of force, distorting the legal effects for which the above-mentioned optimization budget was created. In this line, the results obtained from both the application of the interview form to Judges of the Family, Women, Children and Adolescents Unit of the canton Ambato, Prosecutor of Adolescent soreness, and the Director of the Center of Adolescents Violators of the canton Ambato; as well as the implementation of the survey form applied to adolescents with custodial socio-educational measures for the crime of rape, thus corroboratingly the objectives proposed in the investigation. Finally, a proposal for reform to Article 171, numeral 3 of the Criminal Comprehensive Organic Code, is presented with the aim of harmonizing this legal provision with the dogmatic budgets of the Constitution of the Republic of Ecuador, which involves related rights interdependent and interdependent, among others, priority care, comprehensive development, free development of the personality and dignity of adolescents; sincere lylaws valid for full-term status, under the parameters of specialty subject to the Constitution, the International Instruments of Human Rights and the law.
La supremacía constitucional y el control de constitucionalidad de los tratados bilaterales de inversión en el Ecuador
(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho Constitucional, 2020-02) Maisanche Tomarima, Diego Armando; Machuca Lozano, Santiago Esteban
This research paper tends to analyze the interaction between basic principles of constitutional law and international law, in the light of the constitutionality control of the Bilateral Investment Treaties in Ecuador. Also, considering the profound constitutional changes experienced since the conception of the so-called Montecristi Constitution of 2008. Consequently demonstrating the impact of the principle of constitutional supremacy in the abstract control of constitutionality of the Treaties and Commercial Agreements in Ecuador. To address the issue, the fundamentals that inspire the principle of constitutional supremacy and the control of constitutionality will be analyzed. Likewise, the basic principles of International Law that demand the fulfillment of the obligations conceived through international instruments by the States. Within that framework, the importance of Ecuador's state sovereignty will be considered, in relation to national jurisdiction over international jurisdiction in conflict resolution, and the declaration of unconstitutionality of the Bilateral Investment Treaties. In the same way, the implications of the principle of constitutional supremacy will be established, in the legal certainty that Ecuador offers in its legal system in the conception of international instruments in commercial matters. Draws attention to legal certainty in the Treaties and Commercial Agreements signed by Ecuador since 1992, with the Bilateral Investment Treaties. At the same time, the denunciation of said treaties prior to the declaration of unconstitutionality in the exercise of the abstract control of the Ecuadorian Constitutional Court. By way of illustration, we will indicate the repercussions of the denunciation of the Bilateral Investment Treaties, in the productive and economic apparatus of Ecuador. Within the set of public policies oriented to Legal Security that Ecuador offers. We will also highlight the importance of devising a clear, safe legal system that provides respect for international instruments and the effective resolution of conflicts between subjects of international law. Finally, a proposal is presented for the elaboration of a draft of amendments to the Constitution of the Republic of Ecuador, in its articles 417, 421, 422, 438. This with the purpose of carrying out an abstract control of constitutionality of the international instruments to the light of the pacta sunt servanda principle, which determines that international commitments assumed through treaties cannot be breached by arguing provisions of domestic law, not even the Constitution itself. Likewise, to establish the correct path, to get rid of the obligations emanating from an international instrument, the same that the complaint procedure must be followed, in accordance with the Vienna Convention on the Law of Treaties, unless the same instrument provides for a procedure of specific complaint.
El principio de no regresión ambiental en relación con la Biodiversidad y los transgénicos en Ecuador
(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho Constitucional, 2020-02) Dávila Merino, Ruth Noemí; Espin Meléndez, María Cristina
main objective of this research work is to analyze the principle of environmental non-regression in the use of transgenics in Ecuador, which were established in the 1990s with the introduction of new soil technologies, consigned to the creation of genetically engineered organisms. modified (GMO), also known as transgenic or living modified organisms. These organisms are characterized by having a manipulated genetic composition that allows them to develop novel and "useful" characteristics for human life. The Constitution of Ecuador symbolizes an important framework that relates great advances in the issue of rights, but also in relation to the prevailing economic type, this problem is especially serious for a country like Ecuador, which enjoys a comparatively small territorial widening and Due to the great biological diversity that has been cataloged in one of the richest countries in the world in terms of ecosystems, species and genetic resources, possessing the greatest biodiversity per unit area in the world, we can exemplify Ecuadorian biodiversity as a trust contract, where the trustor would be the previous generations, the fiduciaries or temporary administrators of the environmental goods is the present generation and the generations to come are children or grandchildren will be the trustees. By virtue of that, that great trust agreement was delivered with the purpose of administering a series of environmental goods, and thus being able to delegate it to third or fourth generations. This principle of no environmental regression brings with it the total disappearance of everything considered as environmental risk, without the need to resort to international regulations or jurisprudence, forming its bases in minimum percentages of environmental risk. Therefore, addressing the study of GMOs is controversial because it refers to the preservation, care and control of biodiversity. Within this paradigm, the need arises to guarantee environmental safety through the principle of non-regression
El principio de eficiencia y el principio de responsabilidad social
(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho Constitucional, 2020-02) Salazar Gaibor, José Carlos; Frias Raza, Sergio Edmundo
The investigation makes a precision, from the constitutional perspective, of both the principle of efficiency and the principle of social responsibility with a demonstrative scenario such as public procurement. In the constitutional life of Ecuador several significant advances have been marked in terms of determining principles that regulate public activity and the rights of the inhabitants, efficiency, social responsibility. Among others, have been consolidated as constitutional principles. Public procurement is obliged to apply the principles that govern Public Administration, since they seek common objectives, consequently, benefits and economic resources for the State. The problem is that they are not only principles, but since the Constitution of the Republic of Ecuador of 2008 were established as citizens' rights, which seek to codify recognized good practices in the field of public procurement whose purpose It is to ensure efficiency and a good quality and price ratio. For this, the principle of efficiency and social responsibility is applied directly in the public procurement of Ecuador, a State that has the National Public Procurement Service, which is legally the technical regulatory body for public procurement, as a result , the pre-contractual and contractual procedures of more than 4,000 public institutions and 300,000 suppliers are regulated, developing a specific study with this investigation at the Honorable Gobierno Provincial de Tungurahua and its cases of interest. In that context, a qualitative and quantitative research methodology was applied due to the type of documentary and legal information to be processed, allowing to observe the relationship between the principle of efficiency and the principle of social responsibility. It was also established that public procurement processes do not allow purchases at a fair price, that SERCOP issues Resolutions that favor the popular and solidarity economy sector, that SERCOP Resolutions do not facilitate the execution of public procurement processes, consequently , the content of the Resolutions of the National Public Procurement Service, the Organic Law of the National Public Procurement System and its General Regulations, do not act in strict adherence to the constitutional requirements based on finding a fair price. Finally, it is necessary to specify that it is necessary to develop a regulation that operates in strict adherence to efficiency based on its category of constitutional law.
La jurisprudencia de la Corte Interamericana de derechos humanos en materia de reparación inmaterial y su evolución en el Derecho Constitucional de protección establecidoen el nuevo paradigma constitucional ecuatoriano
(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Posgrado, Maestría en Derecho Constitucional, 2020-02) Acosta Gavilanes, Viviana Jackeline; Machuca Lozano, Santiago Esteban
The integral reparation is born from the premise of the full reestablishment of the obligations of respect and guarantee of the persons to whom some right has been violated. It requires a complex design of repair measures that tend not only to erase the traces generated by said violation, but also comprehensive measures to prevent its repetition. They will not only have as a main objective the economic consequences, but also work on extra-economic measures. The investigation established the importance of intangible reparation in the jurisprudence of the Inter-American Court and its impact on the right of protection established in the new Ecuadorian constitutional paradigm, because in the last ten years there has been a constant process of constitutional change and legislative reform To provide society with a regulatory system that guarantees the full development of personality and freedom, as well as legal certainty and effective protection as the foundations of the new order. With the purpose of considering the jurisprudence of the Inter-American Court regarding the immaterial reparation in the recognition of damages to direct and indirect victims, examining the new Ecuadorian constitutional paradigm regarding the evolution of the right to protection of the people to whom In the investigation the qualitative method was used, collecting documentary information through the analysis of the jurisprudence of the Inter-American Court and carrying out a field work, collecting information with the purpose of describing, interpreting, understanding the nature of the problem and factors that constituted it , based on the study of cases and analysis of sentences provided by the administrators of justice, and also information on data provided by the National Council of the Judiciary, which sought to demonstrate that there is no correlation and proportionality between the right violated and comprehensive reparation of people's rights. After the analysis, the creation of a draft law to raise awareness in the community and in the Ecuadorian judicial system was determined, so that a set of tactics is adopted to change the risk-benefit ratio of the rights violated, directed towards a solution that satisfies and supersedes the non-observance of the constitutional guarantee of the right to protection of persons.
El derecho humano a la movilidad y el deber de protección especial del estado ecuatoriano
(Universida Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Maestria en Derecho Constitucional, 2020-03) Mera Cabezas, María del Carmen; Jordan Buenaño, Jeanette Elizabeth
The Human mobility is a phenomenon produced by the economic, political and social weakening of the rule of law. In the 2008 Constitution of Ecuador, human mobility is no longer considered a problem, but takes a new two-way guarantee conception; that is to say on the one hand a constitutional right and on the other, a special duty of protection of the State. Likewise, the migratory waves that Latin America has suffered in the last decade has made visible that the lack of weak and austere public norms and policies in the protection of human rights, mainly by contradicting the special duty of protection with discriminatory and threatening norms against the dignity of people. In this regard, International Human Rights Protection Organizations such as the UN. OAS and UNHCR, have ruled that states should couple their domestic legislation and avoid abusive and arbitrary behavior against migrant groups that cross and live in each State party, this leads to an analysis of whether the State Ecuadorian fully fulfills its special duty to protect the right of human mobility, established in Article 41 of the Constitution.
Las medidas cautelares otorgadas por la comisión interamericana de derechos humanos y su incidencia en el estado constitucional de derechos en la última década
(Universida Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Maestria en Derecho Constitucional, 2020-03) Haro Leiva, Elena Elizabeth; Poaquiza Poaquiza, Ángel Patricio
The Inter-American Human Rights System, being a special protection regime, its nature is of a subsidiary nature to the domestic legal system of all the States Parties to the American Convention, including Ecuador. With regard to the granting of precautionary measures by the Inter-American Commission on Human Rights, they are subject to the observance of three important elements, such as gravity, urgency and irreparability; particularity that gives importance to this research study, since Ecuador in the last decade has not been the exception in compliance with precautionary measures, are approximately five measures that have been issued against them, which have had a strong political impact , cultural and even environmental. Similarly, this investigation is novel because it applies the case or case analysis, where the precautionary measures described above will be analyzed. Compliance with the described leads us to obtain as a result the strong impact of the precautionary measures in the legal system. internal, mainly because in some cases they are contradictory to the decisions taken by the competent judicial and administrative authorities, also that the requests for precautionary measures in many cases respond to political and media situations, which in turn come to denature the essence and content of These measures, to finally conclude that access to the Inter-American Human Rights System should not distort its essence of protection and should not be regarded as a fourth instance or an extra judicial act, but on the contrary an imminent protection to what is in law.
El derecho de recurrir ante las resoluciones o fallos de la función legislativa en el juicio político
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-08) Silva Bustamante, Luis Alberto; Melo Delgado, Rosa Herlinda
The main objective of this research work is to deepen the importance of the right to due process in guaranteeing recourse to the resolutions issued by the legislative function within the impeachment, given that in Ecuador, regarding the topic of investigation, its absence has been historical. The Constitution of the Republic of Ecuador, in its Article 76, numeral 7, literal m), establishes the right that people have to appeal a resolution or a decision when deciding on their rights, for which reason, when existing express regulations, the violation of this right is clearly evident, which is linked to the right to defense and therefore forms part of due process. In this sense, since there is no possibility of appealing the resolution adopted by the National Assembly in a political trial, due process is violated and therefore the politically prosecuted are affected in their rights. It is important to emphasize that the right of appeal is a constitutional right of scope for all people without exception. Therefore, by restricting this right in terms of impeachment, the principle of equality established in Article 11, numeral 2, ibid, is transgressed directly, in which it is prescribed that all persons shall be subject likewise with respect to rights and obligations, as well as the right to formal, material equality and non-discrimination enshrined in Article 66, numeral 4 of the constitutional text. Thus, when carrying out this reform, these constitutional precepts would harmonize the Constitution for its proper application. Therefore, by virtue of the aforementioned, there is a need for a higher body to review whether the procedure carried out in a political trial has been adhered to and respecting due process, so that, in this way, to be the aforementioned resolution must be ratified or distorted in this instance.
Las políticas públicas de protección a extranjeros y el Derecho Constitucional de libre movilidad humana en el Ecuador
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Mayorga Cabrera, Fausto Alfredo; Poaquiza Poaquiza, Ángel Patricio
This thesis is aimed at determining the degree to which the law guarantees the rights of people in mobility, called immigrants within the Ecuadorian State. Considering itself as a current issue and that merits an effective analysis, allowing evidence of the flaws of the law and the regression of the rights raised. Knowing that Ecuador has the denomination of state guarantee of rights and social justice, which is considered constitutionalist and therefore one of its primary duties is the safeguarding of fundamental and constitutional rights. Based on this structural basis of rights recognized in a constitutional block, it is not only staged the express typing in the constitution that all people enjoy formal and material equality before the application of the law and other norms. For this reason, equal treatment is required from international protection, considering that an immigrant derives from various situations and can be refugee, isolated and even exiled. Human mobility is considered a right and for it to be guaranteed it is necessary to have legal mechanisms that allow it, promoting the free exercise of equality as a fundamental right. Thus, an analysis of the realities of people in a state of mobility was carried out, in which social problems are evidenced. The results of the surveys allow to know the normative reality and the existing shortcomings that require possible solutions. The strengthening of regulations is recommended to safeguard the rights of this group of people. It is concluded that people in a state of mobility should be considered as a priority care group, in which for various reasons, whether social, economic, political or military, it has become a legal challenge that must be remedied to guarantee rights.
La doble jurisdicción y competencia de los jueces penales como jueces de garantías penitenciarias y los derechos de las personas privadas de libertad
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Jara León, José Ricardo; Tite, Segundo Ramiro
The issuance of the 2008 Constitution allowed Ecuador to undergo several transformations regarding an expansion of the catalog of rights and the conception of a Social State of Rights and Justice. Thus, disrupting the administration of justice and the role of the Judge, who enters the sphere of guarantee and protection of the rights of the individual. The Ecuadorian legal system complies with international standards in penitentiary matters, instituting judges for penitentiary guarantees. So, executing the sentence protects the rights of persons deprived of liberty, as a contribution to a specialized judicial system, making a distinction with the criminal guarantees judges who are responsible for knowing and punishing the typical and unlawful behavior of individuals. The regulations and their evolution project a State that guarantees rights. However, in practice, the Judicial Council, under the pretext of criminal efficiency and optimization of resources, never appointed these judges and issued Administrative Resolution No. 018 - 2014, which extended this competence and functions to criminal guarantees judges. This affected legal certainty, the principle of legality and specialty that underpins the jurisdiction and competence of justice operators, and limited the right to effective judicial protection of persons deprived of liberty. In other words, an administrative act tacitly acquires the rank of the organic law, which is not empowered by the legal reserve principle. The research used a qualitative-quantitative methodology, using the interview and survey to determine the criteria of the population of Judges, prosecutors, public defenders, and lawyers in free practice in the city of Riobamba. The results determined a violation of the rights of persons deprived of liberty and a legal contradiction with the functions that the Judge of criminal guarantees must fulfill, consistent with his strictly tutelary role as Judge of penitentiary guarantees.
El desarrollo integral de niños, niñas y adolescentes y la tenencia compartida en Tungurahua
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Silva Palacios, Marco Santiago; Espín Meléndez, María Cristina
This research work of vital importance, since the goal is to guarantee protection of the rights of a priority care group how are children and adolescents. It is also the minors who else are emotionally affected after a separation of the parents. What triggers disrespectful for the family environment. In this way, the investigation will allow that does not increase crime, drug addiction and alcoholism through procedures and techniques that allow integral development of the children. The research topic it is of great interest, as it will allow to give a solution to the problem posed, the absence of joint custody in the country. Likewise, will be checked if really necessary the incorporation of the joint custody to the Ecuadorian legislation. As the family is consider as natural society, the Government should serve it and enhace the defense of the fundamental rigths. Similarly, the research project of great impact. Well, as it has been explained during the development of this work, the actual situation of the minors with their parents separated is tragic. That looks, mostly, in their learning, family relationships and friends. Then, if a solution is given to the problem, its impact will fall in multiple benefits to children and adolescents, improving various aspects of their life. The draft is feasible to be done because it will count will all the support and criterion of judges and Judicial Units of Family, Women, Children and Adolescents, free practice lawyers and parent testimony affected by this legal vacuum.
La reparación integral en sentencias constitucionales y la garantía de los derechos de la naturaleza en el Ecuador
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Ramirez Campos, David Santiago; Vargas Villacrés, Borman Renan
The human species is part of nature and life depends on the uninterrupted functioning of natural systems. Every form of life is unique and deserves to be respected, whatever its usefulness to the human being. The traditional conception of subjects of law, as well as the idea of nature as an entity that is useful to human beings has been modified by the Ecuadorian Constitution of 2008. In this normative body, nature is expressly recognized as a subject of rights and it has been tried to generate a conceptual and substantial change regarding various topics such as the development regime and the inclusion of good living. It is evident that, for the effective fulfillment of the established rights, a situation is required in which there is harmony between human beings and nature, which is precisely what good living seeks. The current Ecuadorian Constitution has established rights in favor of nature, including a constitutional reservation for its creation. By virtue of this, due to ignorance in the administration of justice, rights granted in favor of the pacha mama have been violated, which has required the presentation of various constitutional actions and precautionary measures in order to make effective the enjoyment of these rights. As a result of the absence of specialists in the expert system, the reparation for the damages caused to nature is presumed unfair. In short, Ecuador establishes that nature has the right to have the existence, maintenance and regeneration of its life cycles, structure, functions and evolutionary processes fully respected. Among other aspects, what is established is developed within the present investigation, with the objective of determining the different guarantees of the rights of nature
Tutela judicial efectiva a la luz de la ejecución de sentencias expedidas por la corte interamericana de derechos humanos contra Ecuador
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Loma Peñafiel, Tatiana Elizabeth; Poaquiza Poaquiza, Angel Patricio
The Inter-American System of Human Rights is configured as a supplementary mechanism to which recourse is had if the organs, institutions and powers of a State do not fulfil their function of guaranteeing the validity of the human rights recognised in the American Convention on Human Rights (Pact of San José); thus the victims or their relatives can appeal in the first instance to the Inter-American Commission which, if it considers it necessary, will take the case to the Inter-American Court so that it can decide on the appropriate action. This jurisdiction is recognized by Ecuador and therefore these judgments are binding on the Ecuadorian State as provided for in Article 68 of the American Convention. With this background, the present work will analyze the answers to the following questions: How does the lack of execution of sentences affect the right to effective judicial protection? What legal effects does the non-execution of sentences by the sanctioned State bring? What procedural mechanisms can be used to force the State to comply with the sentences issued by the Inter-American Court? The development of the thesis consists first of all of the definition of the right to effective judicial protection as well as its contents, which consist of accessing the organs of justice, obtaining from them a motivated sentence so that the judicial resolutions can be executed, achieving with the latter the materialization of the right to judicial protection and the rights recognized in said sentence; since effective protection is provided for in the Constitution, it is the State itself that must guarantee the effective enjoyment of it. It also explains the type of sentences that the Inter-American Court of Human Rights issues
El acuerdo ministerial n° 5233-a del ministerio del interior y la vulneración al debido proceso en la separación de los funcionarios de la policía nacional del Ecuador
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Moreno Gavilanes, William Fernando; Poaquiza Poaquiza, Ángel Patricio
The present investigation arises from the integration of two specific variables that structure the subject as a whole, establishing itself as: “THE MINISTERIAL AGREEMENT N° 5233-A OF THE MINISTRY OF THE INTERIOR AND THE VIOLATION OF THE DUE PROCESS IN THE SEPARATION OF OFFICIALS OF THE ECUADOR NATIONAL POLICE”. It should also be mentioned that, the problematic axis in a succinct way, follows from the fact that the members of the National Police, not having passed the polygraph test at the time, have been subject to sanctions, without being able to exercise effective judicial protection, without being able to exercise the right to contradiction, without being able to exercise the right to self-defense, violating the principle of innocence; being that, these principles and rights, in addition to being part of the integrality of the rules of Due Process, are also recognized as fundamental; For this reason, it is conceived that the Ministerial Agreement subject to analysis attempts against such high designs of the Constitution, leaving aside the guarantee that it advocates. In chapter I of the investigation, the doctrinal background and the problematic reality of the project are presented, in order to justify the reason why this investigation has been developed and carried out. In chapter II, the state of the art of research, that is, previous research, has been established in relation to the variables proposed in the structuring of the topic; then, they are developed, under doctrinal aspects of different authors that validate the research, regarding the principles and rights that could be being violated in the problematic investigative context. In chapter III, the methodological foundation of the research is developed, the base being the quantitative-qualitative application, for which, the documentary and bibliographic analysis of the existing doctrine was taken, to establish a questionnaire submitted to a judgment of the respondents , so that these in turn, transform their perspectives to percentages that can give us a general conception of the problematic reality presented. In chapter IV, the conclusions and recommendations are developed, which have been obtained by the doctrinal, bibliographic study, plus the application, tabulation and analysis of the surveys.
El justo precio en casos de expropiación y el Derecho a la propiedad de los administrados
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Aguirre Villegas, Galo Armando; Frías Raza, Sergio Edmundo
The investigation is carried out within the framework of the constitutional State of rights and justice, in which, by virtue of the exercise of public power, a constant interaction is generated between private property and public property. The Ecuadorian Constitution of 2008, recognizes and guarantees the right to property in all its forms, concomitantly establishes the possibility of expropriating the assets of individuals but enshrining the right to receive fair, adequate and timely compensation for the damage suffered, prohibiting all forms of confiscation. But, the content of paragraphs 10 and 16 of article 5 of the Organic Law for Efficiency in Public Administration, does not know the improvements made by the expropriated in their properties, if they do not have authorization, a provision that restricts the minimum content of the right to property determined in the Constitution. The research has a qualitative approach, since the issues raised were analyzed from a neutral point, from which, the reality of the events was approached and the causes and effects of the problem studied in the life of the expropriated owners and their incidence on their personal and family development from the affectation to their patrimony, by the application of an infra-constitutional norm (paragraphs 10 and 16 of article 5 of the Organic Law for Efficiency in Public Administration) which It also limits the behavior of public servants both in the administrative and in the ordinary judicial sphere. Reason why, the expropriated, in search of an alternative to find a way out of his situation, must go to the administration of constitutional justice. With the data and information collected, it was concluded that paragraphs 10 and 16 of article 5 of the Organic Law for Efficiency in Public Administration, constitute a current regulation, having been issued in compliance with the corresponding legislative procedure; but, it is not a valid norm due to its regressive material essence in the content of rights in a disproportionate way that contradicts the 2008 Constitution. It is presented as a proposal, the presentation of a claim of unconstitutionality for the content of paragraphs 10 and 16 of Art. 5 of the Organic Law for Efficiency in Public Procurement, in order for the Constitutional Court to carry out an abstract and material control of the demanded norm, in order to make effective the unity and coherence of the Ecuadorian legal system, under the rule of the principle of constitutional supremacy and the progressive development of rights and their nonregression.
El error inexcusable y la vulneración a la seguridad jurídica en la zona 3 del Ecuador
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Lascano Cevallos, Héctor Rolando; Tite, Segundo Ramito
The inexcusable error figure presents several problems, now in a more specific field the problem is approached from the point of view of the investigation processes that may be initiated by this very serious lack, finding that can be started by this very serious fault finding that the legal order does not clearly establish the elements that make up the inexcusable error, in this sense it is important to establish what is valued and what will be penalized at the moment of judge it. In this way, this cause contains backgrounds outside the law, circumscribing political needs. Being impossible to execute it until you have an objective definition of the figure, that is to say, is not known for sure what is and the impossibility of judging something that is not typified; in this context, the oversight report expresses, “ this causal is subject to interpretations and constitutes interference with the actions of the judges”, that is to say, the Judicial Council has reached an arbitrary power violating the Legal Security, taking into consideration the Interdiction of arbitrariness in the Spanish constitutional jurisprudence judgment number 67 of July 7, 1984, indicates the Legal Security as "the sum of certainty and legality, hierarchy and normative publicity, non-retroactivity of the unfavorable, interdiction of arbitrariness, in such a way that justice in the legal order and equality in freedom can be promoted". Effect of which judges infringe predictability and certainty essential elements in legal certainty; specifically, the certainty, according to the exposed, is violated when the judges do not interpret the legal system in a stable way and consistent is to say, they are tied and pressured to influence pass sentences, thus, making legal certainty affected. Chapter I of the investigation, the background from the doctrine and the context of the problem in the investigation is established in the introduction. In the justification, it is recognized why the investigation has been proposed. Chapter II, the state of the art is developed, that come to be the previous investigations that have been carried out based on the variables that are raised in this investigation, thus also the theoretical foundation is developed from doctrinal parameters, this will give strength and validity to the investigation. Chapter III, the methodology that will be applied throughout the research is broken down, the approaches to be applied are qualitative and quantitative, being important for the other sections of the research, the theoretical and conceptual foundation to achieve the structuring of the questionnaire and be applied to the sample identified by the population formula. Chapter IV presents the recommendations and the conclusions.
El principio de aplicación directa de la constitución y el Control concreto de constitucionalidad en el Ecuador
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Cáceres Sánchez, Nelly Natalia; Vargas Villacrés, Borman Renán
Ecuador is considered a democratic state of rights and justice; From the separation of the Spanish crown to the present day it has undergone continuous structural and organizational changes. The neo-constitutionalist current generated a substantial transformation with which it has allowed the recognition of rights and guarantees of different kinds. In the development of this investigative work several aspects are approached; starting with the recognition of rights, which are considered justiciable and are in the same normative hierarchy. Likewise, it is established that when the rights are violated, there are different jurisdictional guarantees, which become tools that allow the recognition of the established rights in the constitutional way. And finally, the issue of constitutional principles is addressed, as a link for the validation of rights through guarantees. By referring to principles, the constitutional power of direct application of the supreme norm arises. However, this provision contains some variations as can be verified in the development of the text. Consequently, the same Constitution establishes concrete control, which is a power of the Constitutional Court to guarantee regulatory compatibility within the legal system. As this possible confrontation exists within the constitutional text, a great question arises that seeks to analyze and understand. Although, the Constitution can be applied directly; in case of reasonable doubt, the judges have the power to refer the rule to consultation; Furthermore, when the non-judicial public servant is faced with a regulatory conflict, a major question arises, which is intended to be analyzed in the course of this project.
Las políticas públicas de ingreso a las instituciones de educación superior y el derecho constitucional a la educación en Ambato
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Bejarano Lizano, Jeaneth Alexandra; Montero Solano, Juan Pablo
The present research work is initially directed toward the study of the origin of public policy in order to have a determined knowledge for which the public policy is destined or is created, its characteristics in the social environment, which is democratic, and its execution supports the development of society, which manifests the need for the creation of such policies that guarantee the educational rights of the community, This research is based on a study of education policies in Latin America, where Ecuador is one of the countries that has tried to modify its regulations as a result of questions about Ecuadorian regulations. policy of access to higher education that has been implemented in contemporary constitutionalism to guarantee the right to education and thus know what are the general mechanisms and their application in the Ecuadorian regulations focused on the welfare of citizenship in the free development of the aspirants to higher education within the good life. Similarly, it has been considered important to review how various constitutions such as those of Chile, Argentina, Peru, and Venezuela, among others, have included education as a fundamental and very important right for the development of society. In this context, we should also investigate how the Ecuadorian State, through its educational policies, intends to guarantee the right to education versus its application in Latin America in order to compare whether or not there is an application to equal opportunities that should be recognized when accessing university studies. The same applies to the analysis of international instruments that guarantee equal access.