Maestría en Derecho Constitucional
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Item 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 CristinaThe 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.Item Vulneración del derecho a la propiedad y seguridad jurídica por el servicio de rentas internas(Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado: Maestria en Derecho Constitucional, 2023-03) Guaitara Fiallos, Diego José; Saca Balladares, Melinton FernandoLegal Security and the Right to property are rights established in Art. 82 and Art. 66, numeral 23 of the Constitution of the Republic (CRE 2008), they are established as fundamental rights, which the Constitutional Court has been developing in several of their sentences; Likewise, in 2012, it resolved the constitutionality query published in the Official Gazette Supplement 787 of September 12, 2012, (CCE 2012) on the Reservation of Title, indicating that this same law protects the creditor, guaranteeing the right to ownership of the reservation of title. The coercive judges of the Internal Revenue Service have been violating the right to property and legal security since 2019, failing to apply the norm regarding the retention of title established in the Commercial Code and in the same Law of Reservation of Domain that was in force at that time and the Resolution of the Constitutional Court, which has generated insecurity in the inapplicability of the norm, leading to legal uncertainty and affectation in the property of creditors. The general objective that will guide the investigation is focused on establishing how the Internal Revenue Service by coercive judges violate the Right to property and Legal Security The type of research is field under the case study modality with a critical analytical study method. The support for the development of this research work is based on the descriptive scope of qualitative research.Item La presunción de legitimidad del acto administrativo y la tutela judicial efectiva(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-07) Mayorga Idrovo, Marlon Israel; Vayas Castro, Guillermo SantiagoThe present investigation demonstrates the abuse in the actions of the public administration, under a focus on administrative acts and the legitimacy that they have been endowed with. In this sense, it is identified within the Ecuadorian legislation the evident problems before the challenge of these acts. The disclosure of the problems raised will be dealt with through the analysis of judgments issued by the Administrative Contentious Court; as well as those of a Constitutional nature. On the other hand, the legitimacy of the administrative act is addressed in the legislation of other countries, especially Colombia and Argentina. With the aim of comparatively evaluating the treatment that each jurisdiction maintains in this regard. In this order of ideas, it is essential to analyze the normative treatment that currently has the challenge of administrative acts. More than anything when the Constitution itself assumes that the actions of the Public Administration correspond to the protection of the “common good”. Consequently, administrative acts are endowed with a presumption of legitimacy under which their execution is immediate by those administered; to whom, on countless occasions, rights are violated under the issuance of an administrative act. As a result, a State that becomes a Judge and part of its own decisions, making true justice impossible, which even outrages the principle of innocence of those administered. "The innocence of every person will be presumed, and he will be treated as such, as long as his responsibility is not declared by means of a firm resolution or an executed judgment" (Const, 2008, Art. 76). Although it is true, the State's duty is to guarantee the rights of its administered parties. However, the partiality and iniquity of justice in the face of discretionary events in the public administration is evident, demonstrating little objectivity in the justice system. In this perspective, public administration has led society to doubt the principle of effective judicial protection, legal certainty and due process, which demands a true democratic and constitutional State of rights and justice. Therefore, this study allows us to elucidate the true ethical and legal problems that involve the exercise of public administration through the State.Item La práctica procesal constitucional y la tutela judicial efectiva en Tungurahua(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-01) Vera Flor, Álvaro Francisco; Vargas Villacrés, Borman RenánThe guarantee of compliance with constitutional principles and rights does not depend, for the most part, on the criteria issued by the Constitutional Court, but on the professional application of the instruments developed for the protection of rights. That is, a constitutional procedural practice, through which it is possible to effectively protect the rights of people, with the confidence and sufficient guarantee that the desire for justice is fulfilled. That is why, leaving this problem unnoticed without trying to provide a possible solution, will contribute by omission to the weakening of the constitutional block and the loss of legitimacy of constitutional justice. For a better understanding, effective judicial protection allows citizens, through the jurisdictional function, to exercise their rights and legitimate interests and obtain a resolution based on law. For example, in the constitutional sphere, the jurisdictional function acts within the well-known “constitutional guarantees”. In other words, security institutions created in favor of the people, so that they have the means to protect their subjective rights. However, that becomes mere constitutional lyric in practice, since the number of unmotivated sentences and lack of preparation of the judges that lead to the violation, mainly, of the right to effective judicial protection of citizens is evident. Also, it is necessary to emphasize the role of the judge within constitutional law. Most of all, when in recent times it has been possible to verify and experience a politicized justice. This means that beyond guaranteeing human rights, judges decide on the basis of their political interests, increasingly distancing the long-awaited judicial independence that democratic nations struggle with. From this investigative work, an analytical study will be developed to controversy the mythological view that judges are merely "the mouth of the law"; and, guarantee that the exercise of their jurisdictional functions is not influenced in any way by their personal, political, ideological, religious or any other kind of sympathy.Item 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 HomeroEcuador'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.Item El proceso de adopción en el matrimonio civil igualitario dentro del estado constitucional(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-11) Acuña Viteri, Paola Alejandra; Quiroga López, Malena KarinaEqual civil marriage has become a very controversial issue in Ecuadorian society, as it breaks the scheme of a traditional marriage, however, the rights have evolved to the present time, so that in view of the Supreme Norm all people regardless of their race, religion, sexual orientation or gender, are equal and enjoy all rights. Therefore, through the de facto union, LGBTI people felt excluded, because they considered that it was a legal figure that in a certain way established requirements that they had to fulfill in order to formalize their relationship, therefore after several years of struggle for the recognition of equal civil marriage, the Inter-American Court of Human Rights, through its Advisory Opinion OC-24/17, indicated that the states parties must recognize marriage between a man and a woman and between same-sex couples, and that there is no contradiction with the constitutional text but rather a complementarity. Therefore, by recognizing the right to equal civil marriage, it is assumed that it is linked to the rights related to marriage such as that of forming a family, and it is there, where the issue of adoption arises, as one of the means by which which couples can have children; However, despite the fact that the Constitution of the Republic recognizes the types of families and gave way to equal civil marriage, adoption continues to be a privileged issue for heterosexual couples. The methodology used for the development of the research was the study and analysis of the advisory judgments issued by the Constitutional Court regarding the recognition of equal civil marriage, as a starting point of the problem that the recognition of adoption and adoption entails. On the other hand, a comparative study was carried out of the different laws of the different countries, which recognize this figure of equal civil marriage and adoption. For which, the results obtained from it, lead us to consider that the Ecuadorian state cannot reverse the recognition of the rights that LGBT people have with respect to adoption, since in no part of the legislation the principle of interest The child's superior condition is the orientation of the parents, the only thing it seeks is the integral development of the child, for which if a couple who is civilly married is of the same sex or heterosexual, they have the right to form their family in its diversity, and the state cannot prohibit that, because it would be going back in a constitutional state of rights and justice. The conclusion, which was reached with the research study, was to determine that the Ecuadorian state should allow the adoption process in same-sex couples, since the purpose of the constitutional state of rights and justice is to guarantee their equality the recognition of rights, for which by granting the figure of civil marriage to these couples, you are granting them the same rights that a heterosexual couple has.Item Las opiniones consultivas de la corte interamericana de Derechos Humanos a la luz del principio de supremacía constitucional(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-11) Abril Lara, Fernando Patricio; Tite, Segundo RamiroThe research work presents the fundamental objective of developing a critical legal analysis of the implications of the direct application of the advisory opinions of the Inter-American Court of Human Rights in Ecuador and its integration into the constitutional block as an international treaty. In particular, the researcher focuses on the lack of the consensual element in advisory opinions that correlates the submission of a State to an international treaty or agreement. The classic precepts of International Law will be analyzed and as the international body itself has defined the lack of binding force per se of advisory opinions, in contrast to the judgments issued by the Constitutional Court of Ecuador, which have turned into the binding force described. It is necessary to clarify that the present investigation does not seek to disregard the constitutional block regarding the application of international treaties over the Constitution when they imply more favorable rights in humanitarian matters, which would imply a regression of rights. Rather, we focus on how the content of advisory opinions can be adopted without implying disregard for constitutional supremacy and a restructuring of the Ecuadorian legal system. As well as the affectation of the democratic support that the Constitution and its reform mechanisms have. Analyzing that the international body in these cases has extensive discretionary powers, to resolve outside of what was consulted. The methodological basis of the research is based on the qualitative - quantitative application, taking the documentary and bibliographic analysis of the doctrine to establish a questionnaire submitted to expert judgment, so that their perspectives are transformed into percentages that can give us a conception. overview of the problematic reality presented. Allowing to develop the conclusions and recommendations, obtained by the doctrinal, bibliographic study, plus the application, tabulation and analysis of the surveysItem 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 EdmundoThe 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.