Maestría en Derecho Constitucional

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Subject: search.filters.subject.ACCIÓN DE PROTECCIÓN

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    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 Santiago
    The 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.
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    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 Patricio
    The 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.