La recusación por retardo injustificado y la seguridad jurídica

Abstract

The present investigation arises due to the lack of clarity of the regulations in relation to recusal for unjustified delay. First, recusal is a legal figure contemplated in the Organic Code of the Judicial Function (COFJ) of Ecuador. This figure grants the parties involved in a judicial process the possibility of requesting that the judge in charge be replaced by another one, as long as the reasons presented are justifiable and accepted by the other parties. This raises a question regarding the violation of legal certainty. This principle guarantees that the laws are clear and in accordance with the Constitution. Recusal is a legal recourse that allows citizens to request the removal of a judge from a case, when the judge is in any of the grounds established by law. It must also be understood that recusal should not be used as a strategy to delay the process. The Code of Judicial Organization and Functioning establishes that the recusal request must be presented within the term established by law, otherwise, it may be rejected. Article 22 of the COGEP addresses this figure, but there is controversy as to the time period in which unjustified delay is considered as grounds for recusal. On the other hand, Article 149 of the COFJ establishes that the delay in the dispatch of a case may be grounds for recusal if it exceeds 90 days plus one for every 100 pages. The lack of clarity in the regulations may contravene the principle of Legal Certainty. In order to carry out the research, a qualitative methodological approach will be used and methods such as analytical, synthetic, historical and inductive will be applied. In legal research, the qualitative approach implies an exhaustive analysis of a topic, problem or hypothesis through the collection and evaluation of qualitative information.