Maestría en Derecho Constitucional
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Item 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, GaloThe 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.Item La muerte digna como trasplante jurídico en la legislación ecuatoriana(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-01) Cortés Moya, María Isabel; Tite, Segundo RamiroItem 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 AlonsoGuaranteeing 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:Item El principio de proporcionalidad en la reparación integral a las víctimas de infracciones penales en la legislación ecuatoriana(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-01) Medina Medina, Vanessa Estefanía; Segovia Dueñas, José LuisEcuador, being a constitutional State of rights and justice, incorporated the principle of integral reparation in criminal law, being a purpose of the penalty should be strictly enforced, so in this degree plan it will be investigated as it has been applied this principle in conjunction with that of proportionality, because it will be demonstrated that the application of both principles is necessary to achieve this purpose, as well as the responsibility of the State to guarantee the fulfillment of the rights of people who come to the criminal system, for which it is investigated by means of the doctrine and comparative law which are the suitable and efficient ways of applying integral reparation, Mexico has been the one who has managed to comply with this part of the sentence, because it is the main responsible for the victim be repaired in the event that the guilty person does not comply with the compensation ordered by the judge, in the same way ra the Mexican legal system has several ways of complying with the reparation mechanisms through joint work with other public institutions, this can be accepted by Ecuadorian legislation and really comply with what is mandated by the Constitution and the Organic Integral Criminal Code ; On the other hand, it is investigated how the principle of proportionality should be applied so that the administrators of justice avoid applying comprehensive reparation in an arbitrary manner, since the rights of the victims are currently being undermined and they are being left in a state of defenselessness by how much by information obtained it is established that in most cases the sentence ordered by the judge is not fulfilled. Therefore, once the administrators of justice know more effective ways to apply this principle (comprehensive reparation) and the way in which they can add in the sentences the different forms of compensation established in the legislation and international treaties through the proportionality test, it will be possible to guarantee a true fulfillment of sentences and therefore of justice in criminal legislationItem El precedente constitucional y de convencionalidad en los procesos administrativos de expropiación(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2021-01) Pilco Castillo, Washington Lizardo; Cortés Naranjo, Edwin WilfridoThe current legal world is transformed in an accelerated way, this means that Ecuadorian legislation requires incorporating into its regulations laws that contain daily needs in order to make common welfare viable, for this action, rules have been created that regulate administrative acts that issue public entities, as well as the relationship that the company has with the public sector, for which there are mechanisms for the defense and protection of rights, all of these enshrined in the Constitution of the Republic of Ecuador, with this context I must indicate that this work is going focused on the field of public administration and its relationship with private property in order to satisfy collective needs and prevail the common good over the private good. In this sense, I will analyze in the first phase the relevance of the constitutional precedent, which for many authors is the jurisprudence issued by the Constitutional Court at the time of the analysis of certain topics of interest, characterized by having a binding nature, that is, the precedent It must have an effective use, according to the criteria given in each sentence, causing a positive impact for the correct application of the norm, for this purpose the Constitutional Court of Ecuador as the highest organ of constitutional control has issued a series of pronouncements regarding the administrative procedure of declaration of public utility that at the moment of not reaching a common agreement with the expropriated person, regarding the fair price, a process called expropriation proceeds in the jurisdictional instance, an action that allows an impartial third party to resolve the controversy in accordance with a technical report that will contain the fair appraisal, to For this effect, it is necessary to investigate whether constitutional precedents are applied directly by state entities, analyzing their application and content. On the other hand, the Organic Law of the National System of Public Procurement (2008) allows public entities to acquire private and public real estate in order to satisfy collective needs, for which they will proceed to the administrative procedure of declaration of public utility and interest social as established by the Constitution (2008) in its article 323, regulations that empower the State Institutions to declare the expropriation of real estate as long as there is a fair prior assessment, compensation and payment; by virtue of this, the Constitutional Court as well as the Inter-American Court of Human Rights have ruled on the expropriation process, not deciding on its origin, but the analysis has focused on what is considered as "the fair price", indicating the fundamental parameters that the state entities must observe for a fair assessment, and in the case of non-compliance, the constitutional and human rights of private property would be violated. In this context, it is necessary to analyze whether the constitutional precedent, as well as that of conventionality in its binding part, is observed and applied within the respective State Institutions and its incidence in respecting the right to property established in the Constitution of the Republic of EcuadorItem La tutela judicial efectiva en el procedimiento de la acción ordinaria de protección(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Unidad de Posgrado, Maestria en Derecho Constitucional, 2020-11) Guerrero Zuñiga, Edison Ramiro; Garnica Bustamante, Walter PatricioThe origin of the ordinary protection action as a jurisdictional guarantee in Ecuador has been the subject of extensive legal debates. Due to, our present investigation established the main characteristics and elements that this action must have it. In that point, the application of the Justice Court will not harm to the justice bodies and the administration of justice. Furthermore, the effective legal protection is a constitutional right and it was being developed the main elements of it. In this investigation, it will be approached two important rights, such as: the due process and the motivation in constitutional judgements. Also, it will be used ten emblematic cases as the main focus and contribution to this investigation. Each case has the constitutional judgments of the first instance, the second instance and the Constitutional Court where the problem of inadmissibility of ordinary protection actions appears. It is used a qualitative approach where it helps to interact with the object of the study so, the cases were used to examined the main elements of it and to develop some concepts and understanding by using the bibliographic documentary record and files of judgements about the studied problem. As a result of the analysis of each case, the investigation shows what happened in the cases and its interpretation with some doctrine, legal criteria of effective judicial protection and ordinary protection action. Specifically, it explained what happened in the cases in which the ordinary protection action was rejected or inadmissible where it was founded that they were inadmissible due to a faulty motivation of the Judge. The faulty motivation was derived from a poor academic preparation of judges and lawyers and mainly there is an incorrect application and interpretation of: concepts of fundamental rights; the principles & constitutional rules and the grounds for inadmissibility. All of these cause that, the right of the effective legal protection can be violated and the action can be denatured, so, it produces that effective rights protection mechanism will not be applicated.In this context, for the effective protection of the right to legal protection, it was recommended that it is necessary to continue with its study, train students, judges, lawyers, etc. Also, it is important to repeal the grounds for inadmissibility and claim to the Constitutional Court to continue emitting jurisprudence binding, to achieve the certainty of the application of Ecuadorian constitutional system. Otherwise, it will be emitted unmotivated judgments of first instance, second instance and constitutional court by judges, which it generates a detriment to the users of the administration of 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 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 RamiroThe 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.Item 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 PatricioThe 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.