Derecho
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Item Análisis jurídico comparativo de la aplicación de la justicia indígena en Ecuador y Bolivia(Universidad Tècnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2024-08) Changobalin Moreta, Jenny Estefanía; Borman Renán, Vargas VillacrésThe present research topic is of utmost importance as it aims to provide information on how the countries of Ecuador and Bolivia, possessing a diverse cultural heritage and indigenous traditions deeply rooted in their worldview, have managed to incorporate and legitimize their indigenous justice systems in their legal and constitutional frameworks in the current context with the incorporation of legal pluralism in Latin America. The main objective of this study is to analyze the application of indigenous justice in Ecuador and Bolivia in order to identify the similarities, differences and challenges regarding the implementation and regulation of indigenous justice within their respective legal systems. The methodology employed has a qualitative approach, the research combines descriptive, analytical, explanatory and documentary types of study, allowing a deep and contextualized understanding of the topic. Historical and comparative methods were used to examine the evolution and contrast the indigenous justice systems in both countries. Data collection was carried out by applying the technique of bibliographic review of primary sources such as laws and constitutions, and secondary sources such as academic studies. The use of comparative analysis sheets facilitated the systematization and contrast of the information. The result obtained was a comparative study on indigenous justice, revealing how historical, cultural and political factors have significantly influenced the development and implementation of indigenous justice in each country. It is concluded that both Ecuador and Bolivia have made significant progress in the constitutional recognition of indigenous justice, promoting cultural diversity and the autonomy of indigenous communities, but face similar challenges in practical implementation, including the need to strengthen coordination between justice systems to ensure respect for human rights. Consequently, it is recommended that the mechanisms for coordination and dialogue between indigenous and ordinary justice systems be strengthened. It is also suggested to promote intercultural training programs for justice operators that promote respect and inclusion of indigenous jurisdictionItem Análisis jurídico de las competencias de los jueces de paz y las competencias de los cabildos en la justicia indígena(Universidad Tècnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2024-08) Cáceres Montes, Melanie Estefanía; Vargas VillacrésIn Ecuador there are several types of justice, in this research work the justice of the peace and indigenous justice are highlighted. Therefore, the importance lies in identifying the competencies of the justices of the peace and the cabildos, which is why their analysis is crucial to understand and strengthen legal pluralism in Ecuador. This will promote a more equitable and inclusive administration of justice, respecting the cultural diversity of the country. The objective of this research work is focused on "Analyzing the competencies of justices of the peace and the cabildos in indigenous justice"; for which the qualitative approach, comparative and analytical methods have been applied, under the modality of bibliographic-documentary research, descriptive and analytical type of research. The data collection was carried out under the application of the interview technique, directed to experts in the subject under investigation, as presidents of the council of three communities, belonging to each indigenous people of the Ambato canton, to a political lieutenant, also to the justice of the peace of the north zone of the Ambato canton of the Province of Tungurahua; to professionals in constitutional law, in indigenous justice and alternative mechanisms of conflict resolution. The result obtained was a comparative study on the competencies and functions of justices of the peace and town councils, however, the effectiveness of the competencies of the justice of the peace is affected by the lack of training and incentives, while the effectiveness of the competencies of the cabildos has allowed for the rehabilitation of people and the creation of various mechanisms to regulate the development of the community. Therefore, it is concluded that the justice of the peace only resolves minor conflicts, on the other hand, the cabildo denotes greater hierarchy than the justices of the peace, because, in addition to resolving internal conflicts, it is in charge of educational, cultural, socio-economic, political, administrative development with the purpose of promoting and ensuring the sumak kawsay of its territoryItem La mediación socio-comunitaria y su influencia dentro del derecho consuetudinario de las comunidades indígenas de la provincia de Tungurahua(Universidad Tècnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2024-02) Eres Tirado, Johanna Abigail; Poaquiza Poaquiza, Ángel PatricioThe investigation entitled "SOCIO-COMMUNITY MEDIATION AND ITS INFLUENCE WITHIN THE CUSTOMARY LAW OF THE INDIGENOUS COMMUNITIES OF THE PROVINCE OF TUNGURAHUA", is framed within the problem that indigenous justice generates in the management of human rights at present, at the time to resolve controversies between members of the community for a crime or family dispute, where the authorities and older people intervene, who will decide the punishment for the responsible person. Torture and punishment within indigenous communities have a purification and cleansing perspective so that people forget bad habits and do not commit acts against the community again. Sociocommunity mediation is a branch that focuses on the resolution of collective disputes with a cultural approach, being an alternative method that respects traditions and ancestral culture, without neglecting respect for the human rights of the parties in conflict. The methodology used for the research was qualitative and quantitative, because it presents a first part with the description of the most relevant aspects of the subject and it is also quantitative because it contains field research for the collection of statistical data and information. relevant that contributes to the development and fulfillment of the objectives set within the investigative workItem El cumplimiento del debido proceso en la aplicación de la justicia indígena en la parroquia tigua del cantón Pujilí provincia de Cotopaxi en el periodo 2020-2021(Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2022-09) Vega Tigasi, Janeth Cecilia; Vargas Villacrés, Borman RenanThe Constitution of the Republic of Ecuador supports the culture, traditions and indigenous justice in our country based on Article 171 of this Magna Carta, thus guaranteeing the impartiality of justice and in turn the rights that indigenous peoples and nationalities possess, however, within this worldview there have been frictions with ordinary justice when there are decisions that have been taken within indigenous justice and have not been respected by ordinary justice, However, within this worldview there have been frictions with the ordinary justice when there are decisions that have been taken within the indigenous justice system and have not been respected by the ordinary justice system, as well as the lack of knowledge of the indigenous peoples regarding the guarantee of their rights, which has caused various conflicts within the communities, In this way, the present research project, through a thorough and detailed analysis of what indigenous justice is, intends to instruct and guide the indigenous communities on a procedure to execute what indigenous justice is and also to make known the competencies such as the indigenous authorities, the cabildos and the internal assembly of a community, with the purpose of rescuing the customs and values of the indigenous peoples and nationalities, Likewise, the research will allow to promote knowledge in the communities regarding the forms of punishment, regardless of the offense committed in the indigenous territory and to make known the impact caused by the correct adaptation of a due process in the causes or conflicts in indigenous territories, specifically in the Panzaleo culture of the province of Cotopaxi.Item Mediación comunitaria: análisis de aplicabilidad como medida preventiva en conflictos de violencia intrafamiliar(Universidad Técnica de Ambato,Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2022-09) Vargas Gómez, Laura Patricia; Jordán Buenaño, Jeanette ElizabethCurrently, one of the biggest problems is domestic violence, especially the one against women at home. Violence is a direct consequence of the environment in which people live, meaning that the more violent the environment is, the more likely people are to replicate these harmful behaviors. This research project is justified in the social sphere, in the need to create spaces that allow facing domestic violence through the use of extrajudicial methods such as community mediation. This research project exposes proposals such as mediation to face this problem, in which the actors of the family are involved and at the same time to generate spaces for pacification and peace culture. In addition to proposing community mediation as a way to resolve conflicts in all environments and consequently decongest the justice system. Thus, this research aims to explain the feasibility of using community mediation as a preventive measure in domestic violence conflicts, within the rural parishes of Juan Benigno Vela and Totoras. Through the application and analysis of investigative instruments such as the survey and interviews with indigenous leaders, experts on the subject of mediation, political lieutenants; as well as the residents of each community. The aforementioned, will obviate the need to apply mediation as a preventive measure, through the three dimensional analysis that will support the hypothesis of this investigation.Item La justicia Indigéna y la paráctica del pluralismo jurídico(Universidad Técnica de Ambato. Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2020-07) Guanotuña Umajinga, Diego Rodrigo; Vargas Villacres, Borman RenanLatin America has been facing a context of harmonization and recognition of legal duality for some decades, this implies living in a diverse society, in which Ordinary justice is respected, as well as Indigenous justice registered not only within social conscience but also embodied in the constitutional system that for several years had been limited to cover only part of the population. This monistic thinking has been losing space in the field of legal doctrine since many modern writers who do not conceive the concentration of power in a single body, propose the coexistence of diverse systems, according to the customs and cultures of indigenous peoples and nationalities . Ecuador has managed to confront this constitutional void with the recognition of Legal pluralism in Article 171 of the constitution of the republic of Ecuador that allows indigenous authorities the free practice of indigenous Justice through their ancestral methods, it has also been achieved thanks to the struggle of the indigenous movements in their beginnings by the FEI in the year 1926, which was subsequently replaced by the CONAIE in the year 1986, achieving not only the constitutional recognition but also in organs of lower hierarchy, which allows an adequate functioning of the practice of legal pluralism. This recognition also implies being subject to constitutional control by the highest body that issues resolutions of jurisprudential nature (Constitutional Court) in the case of La Cocha through resolution 113-14-SEP-CC, which limits the actions of leaders indigenous and allows to know based on material competence to the State Bodies, in matters that involve the legal good. Indigenous justice, its forms, its principles, its own right with ancestral techniques are transmitted by essence orally for generations, this technique sometimes controversial but that has the endorsement of human rights and related treaties, provide solution to the conflict from the perspective of restorative justice that allows finding new alternatives towards the search for community harmony.Item Los derechos colectivos en la justicia indigena y la justicia ordinaria(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2019-05) Casicana Toroshina, Franklin Isaias; Vargas Villacres, Borman RenanThe collective rights of the communes, peoples and indigenous nationalities of the Ecuadorian state are guaranteed in article 57 of the Constitution of the Republic of Ecuador, one of these rights, such as the exercise of one's own authority in the territories legally recognized by the The law is effective with the application of indigenous justice as determined in Article 171 of the Ecuadorian Constitution, despite that the authorities of the ordinary justice system do not allow the full and effective enjoyment of such right and guarantee that is not only recognized to national level if not internationally through the international treaties and conventions, this occurs because there is no law to coordinate and cooperate between the two systems of justice to avoid the violation of collective rights, its existence being essential, more than that and despite the fact that the two justice systems have the character of If there is no superior or inferior among them, there are laws that subordinate the indigenous justice system to the ordinary justice system, which is why the corresponding reforms are necessary. This investigation intends and is focused on carrying out the reform of Article 161 of the integral Ecuadorian criminal organic code, with the purpose of guaranteeing the full exercise of the collective right to exercise its own authority in the communes of indigenous peoples and nationalities of Ecuador.Item El debido proceso y la justicia indígena(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2018-06) Guzman Chuquiana, Luis Gabriel; Vargas Villacreses, Borman RenánIndigenous justice today in our country is strengthened, since it is supported by the Constitution as it can be evidenced in article 171 where it guarantees the rights of all indigenous peoples and nationalities, the problem is that Ordinara justice does not respect as such decisions taken within the community , another problem is the ignorance of the rights enjoyed by a community by the fact of being indigenous the same that has been creating conflicts and violation of rights, that is why to apply the indigenous justice must exist a model for the effective execution of it. It also allows to know the competences of the indigenous authority, what types of infringements can know the indigenous authority, know the very bottom of the punishment with water, nettle and whip, know that there is only one type of punishment at the time of issuing a sentence or signing a record. This research also aims to make known, Orient, motivate, value, rescue life, customs, traditions in every aspect of indigenous peoples and nationalities, especially indigenous justice as the main essence for the coexistence of peace in the community and the Pacha Mama. This research is focused on implementing a model where the due process for the exercise of indigenous justice is applied in the community of Cachilvana Grande of the parish Kisapincha, Canton Ambato the same one that under a thorough analysis has been able to see the impact that caused the application of the due process in the indigenous justice.Item La privación de libertad de las personas indígenas y el proceso penal(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2018-06) Corrales Córdova, Carlos Javier; Tite, RamiroSince ancient times in the Republic of Ecuador the indigenous peoples and nationalities have exercised practices and customs based on their customary law, the administration of indigenous justice is part of this right, having its own precepts, objectives, foundations, characteristics and principles, accompanied by an own language, clothing, ideology, worldview, music, religion, beliefs, territory, but all this within a single state that in this case is the Ecuadorian. Indigenous justice, however, exists as a result of a legislative policy decision based on technical or efficiency criteria, but is born of the recognition of a right, whose owner is a collective entity: "the indigenous people", this people has achieved its recognition after a process of several years of struggle, hence the application of the Indigenous Justice is now guaranteed on paper or said otherwise is written although not always applied by the justice operators. When dealing with the issue of Indigenous rights, it must necessarily be taken as a reference or analyze ILO Convention 169 of the International Labor Organization (ILO, 1998, p.45) carries with it the rights, principles and guarantees of the indigenous to the world that surrounds him and that they must be obeyed or of obligatory fulfillment on the part of the operators of justice and that is what I look for with the present investigative work to make apply these norms especially the one of the deprivation of liberty against the indigenous. Freedom is the most precious asset that human beings have for the simple fact that the person is born free from here that criminal justice is responsible for judging those who commit a criminal offense with a sentence such as deprivation of liberty and that is how it operates. ordinary justice, in Ecuador is not the exception, but here it is forgotten that when an indigenous is judged we must take into account Convention 169, especially the part that refers to the fact that when an indigenous person is judged he should be given preferentially a sanction other than imprisonment. In the Republic of Ecuador, justice has taken a long time to address the issue of Indigenous Justice as it was only in 2014 that the famous Cocha case was resolved by the Constitutional Court (No. 0731-10 -EP-La Cocha), in which what is determined limits of interpretation between indigenous and ordinary justice, taking as a point of controversy a crime of murder, in this sense there is still much to investigate as the present issue, since the deprivation of liberty or preventive detention is of ultima ratio or of exceptional character in the mestizo and in the indigenous it is even more so because it has in its favor International Agreements and Treaties, that of not respecting them would be contravening due process.Item La aplicación de la justicia Indígena y la vulneración de Derechos Constitucionales(Universidad Técnica de Ambato, Facultad de Jurisprudencia y Ciencias Sociales, Carrera de Derecho, 2018-03) Cañar Barreara, Marcelo Alejandro; Pazmiño Vargas, Klever AlonsoThe Constitutional Rights constitute a manifestation in the National Constitutional, of the Human Laws that have been recognized by the international legal instruments. They recognize a set of prerogatives that, in essence, constitute the recognition of the status of being human, manifested in various environments, in which it‟s essential as a sign of civility, the guarantee of a set of faculties that enable integral human development. In indigenous justice in Ecuador, by establishing itself as an autonomous jurisdiction, it implies the possibility of communities, peoples and nationalities to know, prosecute and punish those who violate those acts that violate community norms within their territories and by some member of the community. This recognition of legal plurality in Ecuador is a step forward in the recognition of ancestral cultures, but in terms of rights for those involved, it poses a challenge to the difference in the ordinary indigenous worldview. Thus, the absence of written norms, typical of the rights of these peoples, which is transmitted orally from generation to generation, manifests a set of restrictions on constitutional rights in the prosecution of the violator of the rules, such as the presumption Of innocence, the possibility of proposing evidence, access to defense, proportionality between offense and punishment, so that, in many cases, it contradicts the exception to that jurisdiction. It recognizes the proper administration of indigenous justice, but provided that the human rights recognized in the Constitution and international legal instruments aren‟t violated, an issue that will build the central theme of this study.