Maestría en Derecho Constitucional

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La acción de incumplimiento de sentencias y dictámenes constitucionales y la reparación integral
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-10) Villegas Paredes, Cristina Del Rocío; Frías Raza, Sergio Edmundo
The non-compliance action of sentences and constitutional verdicts constitute a mechanism through which the administration of justice is obligated to solve legal problems through its officials, which was not given its final judgment, and therefore its integral reparation is a problem solved by a constitutional judge or the Constitutional Court itself. It is worth mentioning that these actions seek to satisfy a broken right or to make it effective, this function is exclusive to the Constitutional Court, which will provide the means to achieve an acceptable integral reparation. Additionally, it has the commitment to follow up on the execution phase to achieve its result which is to give a solution to a requested problem. It is appropriate to mention that the non-compliance action, in the Ecuadorian legal system, was created as a function only in the Constitutional Court, but this entity through its precedent “erga omnes” (mandatory) (Sentence Nª 00l-l0-PJO-CC, 2010), it categorized it as a constitutional guarantee, being opportune to activate it when it is not executed a sentence that violets constitutional rights. It is important to mention that the integral reparation constitutes a form to roll back the infringement in some way or to solve the damages to the victim who suffered a violation of his rights, compensating him to overcome the situation y thus guarantee his physical, psychological, and social development. The ways to repair a right within the Ecuadorian Law are restriction, economical or inherited compensation, rehabilitation, satisfaction, non-repetition guarantee, recognition procedures, public apologies, public services provision among others; to ensure the well-being of the people who attended to the legal system to look for a guide to solve their problems. That is why the non-compliance action is closely related to the integral reparation because to repair it, it is necessary to activate the created guarantees in the constitutional norms, following the proposed guidelines and the settled times.
La acción de protección como mecanismo de defensa ante acto administrativo lesivos de derecho
(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado. Mención Derecho Constitucional, 2023-08) Andino Silva, Edy Juan; Espín Meléndez, María Cristina
The Ecuadorian Constitution establishes that the protection action has as its objective the direct and effective protection of the rights recognized in the Constitution and can be filed when there is a violation of constitutional rights. However, the Organic Law of Jurisdictional Guarantees and Constitutional Control establishes in which cases the action for protection does not proceed, specifically, in the case of administrative acts. In general, the protection action is not valid if the administrative act can be challenged through judicial channels, unless it is demonstrated that such channels are not adequate or effective. This means that the protective action is restricted in its use, being considered as a residual and subsidiary measure. Sometimes, administrative acts issued by public authorities are not necessarily illegal, but they do violate fundamental rights that can only be recognized through the Action for Protection, which is considered an effective and adequate means for its resolution. This action constitutes a mechanism to protect and guarantee the rights of individuals against acts of the administration that may violate them. Therefore, it is necessary to consider how protection is understood in the framework of a constitutional State of rights and justice and how the principles are applied in relation to the action for protection. The objective of this research is to determine whether the action for protection is viable in cases of administrative acts.
La acción de protección y el procedimiento probatorio en el derecho constitucional ecuatoriano
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-10) Quishpe Cherres, Lucia Elizabeth; Jordán Buenaño, Janeth Elizabeth
This research work is initially directed at the study of the jurisdictional guarantee of protective action, its origins, conceptual evolution, characteristics, as well as its normative evolution in Ecuador, linked to its effective assessment in the face of the violation of constitutional rights and its direct relationship with evidence, starting from the analysis of the principles that surround it, its characteristics and importance, as well as the constitutional right to evidence as a guarantee of proof. From which, the inexistence of a procedure that regulates the performance of the evidence in the jurisdictional guarantee of the protection action is specified. Therefore, the presumption of the lack of a specific evidentiary procedure in the jurisdictional guarantee of protection action is confirmed, which generates a violation of the right to due process. Constitutional law in its exercise of guardianship and custody of constitutional rights and constitutional guarantees is directly affected by the lack of regulation of evidence in the Organic Law on Jurisdictional Guarantees and Constitutional Control, considering that this is the law that regulates the functioning of the Constitutional Court and the procedures of constitutional control in Ecuador. Hence the need to establish a procedure for the taking of evidence in the area of jurisdictional guarantee of the action of protection. Based on the fact that this jurisdictional guarantee is characterized by the protection demanded by a different legal discourse than the one that has traditionally been used in Ecuador, it requires progressive rationality, constituting a doorway to the solution of rights violations.
Las acciones afirmativas como políticas públicas de igualdad de género en un estado constitucional de derechos
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-11) Chávez Toscano, Ivonne Alejandra; Vargas Villacrés, Borman Renán
Affirmative action public policies, also known as positive discrimination policies, have been implemented in Ecuador with the aim of mitigating the multiple factors that cause conditions of discrimination and inequality. Most of all, those that are based on social constructions of gender. According to Rawls (2001, p. 29) “Undeserved inequalities require compensation; and since the inequalities of birth and natural gifts are undeserved, they will have to be compensated in some way”. Thus, the creation of the famous affirmative actions is justified, having as a fundamental pillar the right to gender equality that is guaranteed by the Constitution of the Republic of Ecuador. However, in recent times, several questions have emerged. For example: Why, despite legislative progress in the field of human rights, are there still such marked phenomena of inequality ?; What is stopping a change in the culture and in the symbolic references of the masculine and feminine ?; Are the affirmative actions implemented in Ecuador really working to generate gender equality or do they only reinforce sexist stereotypes ?; How do the design of public policies with a gender perspective based on social constructions of stereotypes affect the social imaginary? The problem that this research work aims to focus on is precisely the impact of the results generated by the application of affirmative actions in our environment. In such a way that it is demonstrated how those, contrary to precautionary the constitutional right of gender equality, are violating it, strengthening the social stereotypes between men and women. As explained in the previous paragraphs, affirmative actions are being created, not only in Ecuador but in various parts of the world. Thus, they are taken as a means of reducing violence and inequality between men and women. However; The present investigation will criticize that this type of affirmative action implies in itself a reinforcement of stereotypes and protection messages for a certain group that needs special measures by the State. Consequently, said situation generates contradiction and debate regarding gender equality as a constitutional right.
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.
Aplicación de medidas de protección en delito de violencia psicológica y afectación del principio de inocencia en el cantón Alausí, período 2017 – 2018
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-01) Padilla Vilema, Segundo Isaías; Masabanda Analuiza, Galo
The purpose of this academic investigation is to determine the main causes that AFFECT THE INNOCENCE PRINCIPLE IN THE APPLICATION OF PROTECTION MEASURES IN THE CRIME OF PSYCHOLOGICAL VIOLENCE. And to propose that effective judicial protection be guaranteed by justice administrators and guarantee the right established in the Constitution of the Republic of Ecuador, Universal Declaration of Human Rights and the American Convention on Human Rights, without causing damage to the procedural parties. In the Organic Integral Criminal Code in its article 558, it establishes the protection measures in favor of the victim or members of the family nucleus in the case of domestic violence. This measure currently constitutes an important means for the protection of victims of violence, however, ignorance has caused the inappropriate use of protection measures, which seriously affects the rights of the accused mainly the right to be heard. The importance of this research lies in achieving an effective, timely application and complying with the principle of legal certainty as provided by the Constitution of the Republic of Ecuador, so it is necessary to conduct an analytical, legal and doctrinal study of the measures of protection, in such a way that effective solutions can be proposed in the face of bad application, which allow equal protection and treatment to the procedural parties. The present study of qualitative type, applied the descriptive and deductive methods, following the line of investigation of technical and doctrinal foundations of criminal sciences in Ecuador, having as main result, the criterion of the lawyers of free exercise of the canton Alausí, is to optimize the procedure for issuing protection measures, without affecting the basic principles and guarantees and the constitutional principle of presumption of innocence.
La caución en delitos de juicio de procedimiento directo de la unidad judicial penal de Ambato y el principio constitucional de proporcionalidad
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-01) Acurio Hidalgo, Marcelo Patricio; Cortes Naranjo, Edwin Wilfrido
The surety is that legal figure with which it is intended to guarantee the presence of the person processed in court; since it suspends the effects of preventive detention; so that once the responsibility is determined, everything can be restored to its normal condition that by actions or omissions have affected things or people; In criminal matters, the judges tend to ensure compliance with the sanction for the typical, unlawful act committed by the defendant and in a certain way improve the condition of that person who has been affected in some way, since this person becomes a victim the state guarantees the existence of means that allow something to remedy the injury suffered; However, it is necessary to point out that it is not only possible to ensure the rights of the alleged victim, but also to ensure the rights of the person to whom the crime is imputed and it is here that as long as there is no conviction, one must ensure the constitutional right to which every person is entitled, this being that of freedom; if there is indeed an investigation into the commission of a criminal act, it is as such an investigation, and therefore the deprivation of liberty covered by the figure of preventive detention must be considered ultimatum; reason for which the same regulations, this being the Comprehensive Organic Criminal Code in the Ecuadorian case which provides for the figure of the surety in order to suspend the effects of preventive detention; Now, once it is about the surety, it is necessary that in order to fix it, the conditions and characteristics contemplated in the same legal body be taken into consideration in order not to violate the constitutional principle of proportionality; however this last precept has been broken in the application; since despite the fact that the regulations are clear; However, the judges at the time of setting the bond do so arbitrarily since it amounts to values that the defendants cannot meet, so compliance with preventive detention is a reality.
La constitucionalización de los criterios de ilegalidad arbitrariedad e ilegitimidad y la acción de hábeas corpus en la jurisprudencia constitucional
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-11) Núñez Guerrero, Ritha de los Ángeles; Granizo Haro, Asdrúbal Homero
Ecuador's Constitutional Court and the Inter-American Court of Human Rights, through their jurisprudence, they have contained three vital criteria when resolving the judicial guarantee habeas corpus: illegality, arbitrariness, and illegitimacy. These criteria must be applied by constitutional judges at the time of resolving habeas corpus. However, within the administration of constitutional justice, these are used as synonyms, this research seeks to analyze how these criteria are being applied, whether constitutional judges are taking into account the content that both the Constitutional Court has developed such as the Inter-American Court of Human Rights to resolve habeas corpus actions brought to its knowledge. On the contrary, they are resolved without taking into account the development established in the jurisprudence to provide content of illegality, arbitrariness, and illegitimacy. To accomplish this objective, the habeas corpus resolutions issued in 2019 by the Provincial Court of Tungurahua has been analyzed, evidencing the lack of application of homogeneous criteria on the legality, arbitrariness, and illegitimacy that the Constitutional Court and the Inter-American Court of Human Rights, have provided content through their jurisprudence, which, in the last term affects the constitutional justice.
El control de convencionalidad en la administración de justicia en el complejo judicial en la ciudad de Latacunga en el año 2021
(Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado: Maestria en Derecho Constitucional, 2023-01) Altamirano Guerra, Verónica Cristina; Vayas Castro, Guillermo Santiago
The present degree work modality Development Project with the general objective: “Analyze to what extent the control of conventionality is used in the administration of justice in the Judicial Complex of the city of Latacunga in the year 2021”, in order to know if these legal tools were applied within a given space and time, that is, dimension the scope of the 55 international treaties and conventions ratified by Ecuador within the protection of Human Rights. Conventionality Control has been invoked in various cases of the Inter-American Court of Human Rights, as in the judgments of the Constitutional Court of Ecuador, with the purpose of promoting a legal practice with a human rights approach. The present work allowed us to understand the origin and development of the stages of conventionality control, its parameters, so it is the duty of the Ecuadorian State that the Treaties and Agreements are respected through its authorities and justice operators, not only with the objective to repair, but also to prevent
Control de la corte constitucional frente a los estados de excepción por covid 19 y posibles soluciones
(Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado: Maestria en Derecho Constitucional, 2023-01) Vaca Tarco, Walter Gustavo; Saca Balladares, Melinton Fernando
The violation of rights in all sectors in these last states of exception dictated by the national government has not been guaranteed within our Ecuadorian legal system, so within this investigation we seek to protect this right so that the well-being of people be guaranteed in times of emergency, ensuring that labor autonomy is protected so that they have a dignified life. Everything stated will be analyzed in law compared to other countries that suffered in the same way, so their experiences in relation to this topic of study will be explored and transplanted to our legal system. The subject of study is important and controversial at the same time taking into consideration that on the one hand the right to health, but at the same time the confinement of people entails a series of violated rights, including labor law in different marginal sectors. Therefore, it has been transcendental to investigate if the states of exception were analyzed from every point of view. The methodology used in the research has been with a qualitative-quantitative approach because the information is based on observation and treatment of inequality of rights through interviews and surveys; differences that have been given to people who have access to teleworking and those who fend for themselves through manual work. (self-employed); same that have been developed through documentary research From these surveys, the respondents believed that within the legal system the protection of labor law should be guaranteed in marginalized sectors in states of emergency, since not doing so violates other constitutional rights such as a dignified life, the state of emergency is accepted as health protection, however it is stated that labor law should be protected as a primary source of human beings. Therefore, based on these results, the protection of labor law in marginalized sectors of the Ecuadorian legal system is recommended.
El debido proceso y la proporcionalidad de las penas en la conducción de vehículos en estado de embriaguez
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-01) Gavilanes Altamirano, Danny Israel; Pazmiño Vargas, Klever Alonso
Guaranteeing respect for the rights of procedural subjects, as well as ensuring compliance with the guarantees of due process, are one of the fundamental pillars that the Ecuadorian State provides among its plurinational and multicultural principles. In turn, criminal law is the body in charge of carrying out the legal order, each time an irregularity or criminal offense occurs with the intention of protecting the legal security of society. Part of this safeguard is to enforce the different legal mechanisms, so that when a trial is used; There remains reliable and convincing evidence of having used due process, in cases where there is a need to punish a person, that it is proven that he has committed a criminal offense. The objective of the following Degree Work is to diagnose the general characteristics of due process and analyze the proportionality of the penalties in terms of their application, in cases related to the driving of vehicles in a state of intoxication, where it is sought to detect the possibility of the existence of a legal vacuum that violates human rights and, respect for the free movement of whoever commits the crime or infraction. It is a mixed investigation, directed towards the iterative or integrative, under the documentary modality, explanatory-descriptive and correlational field. The results of the investigation indicate that there is a disproportionality in the sanctions or penalties that arise from the violation of driving vehicles while intoxicated, typified in the Comprehensive Organic Penal Code (COIP), especially when compared with other criminal offenses of higher magnitude and are sanctioned by the same COIP in a non-proportional way, affirming among the conclusions the existence of a legal vacuum, with respect to these penalties that a judge sanctions, leaving aside for the legislators, the possibility of considering what is known as the abstract penalty, to measure in a coherent, suitable, necessary and weighted manner the possibility that the sanction is commensurate or proportional to the magnitude of the violation, without neglecting the damage to third parties that could be caused. Descriptors:
Las decisiones administrativas de los centros de rehabilitación social y el derecho a recurrir 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) Chávez Merino, María Paulina; Tite, Segundo Ramiro
The administrative resolutions issued by the Directors of the Deprivation Center of Liberty in front of the constitutional rights of the people deprived of liberty who are under their protection, proposes an analysis regarding the legal effect that they produce in this population group, mainly regarding to his right to appeal or the right to a double instance, when the prisoner considers said administrative act as a transgressor of his rights, since from the analysis of the current prison regulations it is concluded that the only recourse to which he can access is that of appeal. Ecuador is a social State of rights and justice, where its main duty is to guarantee the effective enjoyment of the rights of citizens without any distinction, in this regard the legislator with the creation of specialized regulatory bodies already makes a distinction regarding the processing of challenges to administrative acts issued by any administrative authority other than the penitentiary system, in which the right to appeal contains a greater number of tools prior to their knowledge in the jurisdictional sphere, contrary to what is empowered with regard to administrative decisions originating from a penitentiary authority that only consider the resource of appeal before the jurisdictional authority called judge of penitentiary guarantees. For this research, a qualitative-quantitative methodology was used, one of the main tools for data collection being the survey and the interview, through which the criteria of the legal professionals, justice operators of the city of Riobamba immersed in the penal and penitentiary sphere, as well as the Director of the Center for Deprivation of Liberty in the city of Riobamba; obtaining as a result that if the right to appeal of the persons deprived of liberty is violated against administrative acts issued by the authority of the prison, not only because the appeal is the only recourse but also because this type of administrative act does not have a review of legality that limits the discretion of the authority from which it comes.
La declaratoria de lesividad en instituciones de educación superior del Ecuador, frente a la vulneración de Derechos fundamentales en el ámbito administrativo
(Universidad Tècnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Maestria en Derecho Constitucional, 2023-08) Iza Cando, Germán Marcelo; Poaquiza Poaquiza, Ángel Patricio
This investigation investigates whether the violation of fundamental rights in the administrative field with the purpose of preventing constitutional and administrative actions in the public administration, especially in higher education institutions, since by not observing the constitutional principles and guarantees, in administrative acts they affect constitutional principles and guarantees, damaging rights considered fundamental by our Constitution and international regulations. The following specific objectives were analyzed: 1. Carry out a legal and doctrinal analysis of the declaration of harmfulness of administrative acts. 2. Identify the violation of rights by the declaration of harmfulness of the favorable administrative act. 3. Determine in the administrative resolutions declaring harmfulness the existence or not of violation of fundamental rights. In the first chapter, of the theoretical framework, it was analyzed doctrinally andxv legally in relation to the administrative and constitutional field, in which the meaning of the administrative act is conceptualized, as well as the elements, characteristics, requirements, validity, favorable acts, its revocation, until the revocation of the favorable administrative acts through the declaration of harmfulness, in the same way the requirements, nature, effects that can cause the administered and the administration, when carrying out a procedure of declaration of harmfulness in the administrative field, were reviewed. considered national and international jurisprudential casuistry, entering the constitutional sphere in order to determine in the administrative procedure the violation of the fundamental rights of the person as a public servant affected, by the declaration of harmfulness. In the chapter of the methodological framework, surveys will be carried out in order to find out if the legislation corresponding to the administrative field, in coordination with the constitutional one, is applied in a practical way in higher education institutions, especially in newly created universities. Finally, the conclusions and recommendations are presented, which emphasize the main results achieved
Los decretos de estado de excepción por desastres naturales en el ecuador y la garantía constitucional de motivación
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-01) Saca Balladares, Melinton Fernando; Acosta Morales, María Gabriela
The present investigation revolves around the power that the President of the Republic of Ecuador has, to declare the entire national territory or part of it, under an Exception Status, whose executive decree in its content must necessarily observe the constitutional guarantee of motivation, which has been widely developed in the national and international constitutional jurisprudence, regarding the parameters that constitute it, always seeking to avoid discretionary and arbitrary actions by the state authorities. The qualitative approach applied, allowed to analyze and explain the causes of the scarce, contradictory, impertinent or apparent motivation of the executive decrees of the Exception State due to natural disasters in which the decisions of the authority are manifested, resorting to a field investigation through the application of surveys, and a documentary investigation through the collection of the data contained in the administrative acts called executive decrees of the Exception State due to natural disasters in the period 2009-2017, and their respective judgments or constitutionality rulings, in which the technique of observation and case analysis was applied. From the findings, it was evidenced as a general rule, that the control carried out by the Constitutional Court to the Exception State, is simply a formalism that seeks to satisfy the aspirations and provisions emanating from the Executive; Since all the opinions or judgments of constitutionality are favorable, without applying in any of the cases the Motivation Test that involves the parameters of reasonableness, logic and comprehensibility developed by the Court itself, without a doubt this omission of the Control Body responds to coercions or interests of a political nature, without considering at all that various fundamental rights of the people affected by the declaration are at risk. Finally, it is sought that the Executive Function assumes corrective measures regarding the due motivation of its Exception State decrees, framing them in strict compliance with all constitutional principles and guarantees, so that in their application no type of fundamental right.
El derecho a la defensa en el procedimiento expedito para la contravención contra la mujer y miembros del núcleo familiar
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-01) Gómez García, Norma Cristina; Garzón Villacrés, Iván Arsenio
With the promulgation of the COIP, under the premise of rapid justice, the prevailing policy in Ecuador, new procedures have been implemented, in addition to the ordinary, the direct procedure, the abbreviated procedure; and, the expedited object of analysis in the present investigation; the first two are applicable in the case of crimes, while the last is applicable for contraventions. The main objective of this research is to detect the right to defense in violations of violence against women and members of the family nucleus, for which a bibliography of the topic has been analyzed, in which I have been able to determine criteria in which the right to defense, the principle of orality, contradiction and immediacy are important without leaving aside the other principles within a criminal process. Likewise, interviews have been carried out with honest professionals, who, due to the position they occupy, have high expertise in the matter raised; having gathered these criteria, it has been possible to understand that in this type of procedure that are regulated by the COIP, the difference is established in contraventions against women and members of the family nucleus of flagrant and non-flagrant nature; that is, in the announced test and at the time of its execution. As well as the criterion that in the procedure specifically that of violence against women, they must be executed through a principle of justice, something that is opposed to the criteria of some interviewed judges to the prevalence of a criminal policy that seeks to prevail over the victim for his condition of vulnerability and finally it is clearly established within the analysis of the investigation that the constitutional parameter of appearance to the support of the expert report is mandatory in all criminal action, in accordance with the provisions of Article 76, numeral 7, literal j, in accordance with the provisions of Article 505 of the COIP, when there is a contrary rule established in rule 15 of Article 643 of the COIP, which states the prohibition of attending to give testimony in audience professionals who work in the technical offices of the courts of violence against women and the family, said reports will only be incorporated into the process and will be valued in the hearing; reason why this provision violates the constitutional norm, the right to defense, the principle of immediacy and directly to the principle of contradiction.
Derecho a la libertad y aplicación de la prisión preventiva en delitos de robo y hurto
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-10) Jiménez Panimboza, Adriana Elizabeth; Guevara Fuentes, José Rubén
The increase in the number of persons deprived of liberty in Ecuador draws the attention of all State institutions. State security is not reflected by the fact that there are more people incarcerated; On the contrary, in many countries a perverse circle of insecurity has taken root, where prisons constitute precisely one of its main links. The adversarial accusatory system, prosecutors and defense lawyers litigate before an impartial judge. But reforms to justice systems were oriented and had a fundamentally punitive approach, contravening logic, common sense and, above all, specialized recommendations. It should also be mentioned that Ecuadorian criminal legislation, as of August 10, 2014, the date on which the Organic Integral Criminal Code entered into force encouraged the abuse of pretrial detention. The judges currently issue preventive detention to a person without sufficient elements of trial since they do not know the profile of the persons processed, demographic data and family context: if they have family charges, labor relations, study, partner, income level, Disability, despite the lack of knowledge, judges issue preventive detention.
El derecho a la seguridad jurídica respecto a los Bienes inmuebles en los procesos de prescripción Extraordinaria de dominio
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-10) Coello Hernández, Patricio Ruperto; Jordán Buenaño, Jeannette Elizabeth
The purpose of this research work is to analyze and determine whether the absence of an express legal norm that demands the summons to the State as a procedural interested party, in lawsuits directed against the so-called unknown heirs and related to transferable rights and / or property rights over Real estate, especially those relating to causes of extraordinary prescription for ownership, violates the constitutional principle of legal security and other intrinsically related such as the right to defense and due process. In this context, the constitutional principle of legal security is conceived as respect for the Constitution and the law, through clear and precise rules in its mandate. By virtue of the aforementioned, the rules for summoning unknown heirs do not contemplate the possibility of considering the State, as an interested party, according to the succession rules expressed in article 1023 of the Civil Code. Therefore, the lack of legal regulations of an express nature that requires its summons, may violate legal security and the certainty of certain predictability in the law. In the present investigation the qualitative method was used, through the single case study research instrument, an analysis of Judgment No. 019-14-SEP-CC was carried out; By means of a content analysis instrument, extracts of citations of lawsuits on extraordinary prescription of domain were collected; and, through the interview instrument, the position of two judges regarding the subject under investigation was collected. By way of conclusion, it was determined that the State should be cited in cases related to unknown heirs, in accordance with the rules of intestate succession. However, it is an obligation of the judge as procedural guarantor, to verify all the necessary requirements in order to carry out the summons in strict adherence to the law.
El derecho a la seguridad jurídica y la modificación del procedimiento de rebaja de penas
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-09) Parra Zimbaña, Laura Leonila; Pazmiño Vargas, Klever Alonso
Legal Security in Ecuador is recognized as Right, Principle and Guarantee. As Law, it is established in Art. 82 of the Constitution of the Republic, which is based on respect for the Fundamental Charter and on the existence of previous, clear, public legal norms applied by the competent authorities (Constituent Assembly, 2008). As a Principle, it recognizes the legislature as being constitutionally responsible for creating, modifying or repealing the regulations that involve constitutional rights, and at the same time, it charges the judges with giving certainty and confidence to the citizens regarding the correct application of the law, since, Only in this way can people predict the effects and consequences of their acts or omissions. And as a Guarantee, Legal Security is the foundational and common mechanism for all individuals, guaranteed in the Constitutional Charter in order to protect the individual and collective rights of the inhabitants of the State. In the specific case, since the persons deprived of liberty are members of the Ecuadorian State and constitutionally recognized as a group of priority attention, they enjoy the right to Legal Security and other rights inherent to the human being, therefore, the Council of the Judiciary when issuing Resolution 085-2014 establishes a new requirement and modifies the procedure already existing in the relevant regulations to access the benefit of Reduction of Penalties for Merits, violated the Legal Security constitutionally established, since said requirement that varies the procedure is not covered by Favorability for the inmate, but distressing the procedure that must be followed by those deprived of liberty who have fulfilled the requirements to obtain their early release. This resolution also contravenes the Principle of Reserve of Law, since the Council of the Judiciary is the administrative organ of the Judicial Function, which can only regulate the rights that are guaranteed in the norm and that lacks procedure, but not, negatively modify the pre-existing ones as in the present case, in which through Resolution 085-2014 increases a requirement and changes the procedure previously established in the Code of Execution of Penalties and Social Rehabilitation (National Congress, 2006), in the Regulations Substitute for the General Regulation of Application of the Code of Execution of Penalties and Social Rehabilitation (Executive Function, 2001) and in the Regulation for the Granting of Reduction of Penalties by Merit System (National Council of Social Rehabilitation, 2008). With the application of the information collection instruments, it was determined that the Judicial Council with the issuance of Resolution 085-2014 violates the right to Legal Security, since it is not constitutionally empowered to establish requirements and procedures through a resolution. contrary to those already established, because with this change it is generating a decrease in the percentages of reduction of penalties for merits of persons deprived of liberty, despite the fact that the PPLs have fully complied with training, health, social work, and appropriate behavior programs offered by the Social Rehabilitation Centers, thus harming the Right to Freedom that the inmates who have positively changed their behavior become creditors, also generating prison overcrowding and violation of the other rights enjoyed by persons deprived of liberty.
Derecho a la tutela judicial efectiva y la ejecución de sentencias constitucionales
(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-10) Zurita García, Jessenia Alejandra; Altamirano Dávila, Carlos Fabián
The investigation addressed the right to effective judicial protection and its impact on the execution of constitutional sentences. As effective judicial protection is a right promulgated in the Constitution of the Republic of Ecuador, it should be fully complied with when executing a sentence, since this right, in addition to contemplating access to justice, due process, ensures that the sentence obtained in a trial is fulfilled. However, currently there are palpable cases where the role of the judge ends with the issuance of the sentence, often leaving it as a mere enunciation of rights or as a dead letter, ignoring that the work of the judge ends only with the complete execution of the sentence. The factors for which the constitutional sentences are not complied with, is the culmination of this investigation since, from that, the actions of non-compliance appear before the Constitutional Court, actions that have been filed several years ago and that to this date they do not have a solution, which is why this concern arises. What justice are we talking about when a person has not been able to have his rights repaired despite having a favorable sentence? The methodology used has both a quantitative and qualitative approach, since, with the data collected from non- compliance actions, the phenomena were interpreted based on the results and the way in which individuals experience the problem was examined. The research describes the characteristics of the unenforced sentences, exposes how the problem arises and, together with theories of various authors, consistent results have been given. With the sample obtained based on the daily experience of the Tungurahua lawyers forum, it is shown that aspects such as lack of clarity in the sentences, lack of motivation, gaps in the sentences, ambiguity, among others, are the factors for which the sentences constitutional are not followed. The investigation concluded with a revelation of the described problem, with a number of causes that have not been able to take effect despite the fact that they have a sentence issued by the competent constitutional body. However, the analysis compared to Colombian legislation provides a solution to the detailed problem, as well as mechanisms that will make our justice a true daily practice, providing citizens who trust in constitutional justice an answer to their needs.
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.