Protection action in the Republic of Ecuador
Introduction
Constitutional guarantees are defined as the means or instruments that the National Constitution makes available to the inhabitants to sustain and defend their rights against authorities, individuals or social groups.
When reviewing the legal texts of the early days of the history of humanity, there is no mention of the concept of constitutional guarantees, although there are those who express that they are collected in the Hammurabi Code, 2000 years before our era. Others recognize the famous Magna Carta, of the English king Juan Sin Tierra, from 2015, as the first state recognition of these guarantees; Although they were guarantees that only certain human beings were granted, for being part of a social class, but that they do not extend to all. This letter embryonicly collected the right to due process and the guarantee par excellence of the right to freedom.
Some authors consider that constitutional actions constitute rights in themselves, referring to the international obligation of states to introduce judicial guarantees that protect human rights into their legal systems.
Developing
In a modern constitutional state, not only rights are established, but also guarantees are established, these depending on mechanisms for effective protection of compliance with the rights of individuals. The Constitution of Ecuador of 2008, in essence guarantees, creates a series of jurisdictional actions for the protection of human rights, such as: the action of protection, the action of habeas corpus, the action of habeas data, the action by non -compliance, the action of access to public information and extraordinary protection action.
In this essay I will speak regarding the protection action framed in article 88, defined as follows:
The protection action will be the purpose of the direct and effective protection of the rights recognized in the Constitution, and may be filed when there is a violation of constitutional rights, by acts or omissions of any non -judicial public authority; against public policies when they suppose the deprivation of enjoyment or exercise of constitutional rights; And when the violation comes from a particular person, if the violation of law causes serious damage, if it provides improper public services, if it acts by delegation or concession, or if the affected person is in a state of subordination, helplessness or discrimination.
In the Organic Law of Jurisdictional Guarantees and Constitutional Control is also regulated and in this legal body delimits the procedural aspects, as well as the rules of execution, requirements of origin, object, processing and inadmissibility of the action.
This guarantee lies in being an action at the service of citizens, aimed at guaranteeing the respect and protection of the rights established in the Constitution. Consequently, the protection action does not proceed when there are ordinary judicial routes for the claim of the rights violated, and especially when there are resources for cancellation, review, reconsideration, appeal and replacement in administrative route.
Having a constitutional action that covers human rights such as protection action, by itself it does not constitute a satisfactory or sufficient response so that it becomes effective and adequate, but depends on legal practice, on political will and of the concrete or abstract control of the Constitution exercised by the Constitutional Court with a binding basis.
Regarding the effectiveness of resources, the Inter -American Court of Human Rights (HDI Court) points out that they must be able to produce the results for which they were created, that it is the states that have the responsibility of the existence of the Standards, of effective resources and the guarantees of due process The Inter -American Court of Human Rights, said that having adequate resources means: that the function of these resources, within the internal law system, is ideal to protect the legal situation infringed. In all internal systems there are multiple resources, but not all are applicable in all circumstances. If, in a specific case, the resource is not adequate, it is obvious that it should not be exhausted.
In order for a resource to be adequate, it is necessary that it be of such a nature that allows to have effective and sufficient means to repair the legal situation inflicted, that is, that when the violation of a human right occurs, it is counted in the internal legal system with specific legal resources and applicable to previous situations, which generate a concrete and reasonable repair result to the damage produced. It is not enough that there are resources that are provided for in the Constitution, the law or that are formally admissible, but that they are required that they are suitable, that it can establish whether they have incurred a violation of human rights and at the same time provide what that is necessary to remedy it.
The protection action may be brought when there is a violation of constitutional rights and the contents in international human rights instruments. Therefore the protection action proceeds:
- Against the acts or omissions of the authorities and public officials, non -judicial (not judicial decisions), that violate or have violated any of the rights, which impair, decrease or cancel their enjoyment or exercise;
- Against public, national or local policies, which prevent the enjoyment or exercise of rights and guarantees;
- Against the acts or omissions of the public service provider that violates the rights and guarantees;
- Against the acts or omissions of the natural or legal persons of the private sector, when at least one of the following circumstances occurs.
- Against any discriminatory act committed by any person.
The protection action is intended:
- The effective and immediate protection of the rights recognized in the Constitution and in the International Human Rights instruments.
- The declaration of violation of one or more rights.
- The integral reparation of the damages caused by the violation of one or more rights.
When in the judgment of a protection action, violation of a right or several rights has been declared, the comprehensive reparation must be ordered by the material and immaterial damage produced. This comprehensive reparation is aimed at restoring the situation to the state prior to the violation of human law, in cases of what this is possible. Among the measures or forms of comprehensive reparation we have: the restitution of law, economic or patrimonial compensation, rehabilitation, satisfaction, the guarantees that the fact is not repeated, the obligation to refer to the competent authority to investigate and sanction, Public and/or private recognition measures, public apologies, the provision of public services, health care, among others.
conclusion
In conclusion, the Constitution of the Republic of Ecuador of 2008, of a cut significantly guarantee and superior to its predecessor, recognizes the protection action as a means to achieve the protection of citizens for the violation of their fundamental rights. The State is responsible for ensuring that the judicial system prioritizes citizens in the exercise of the protection action. In addition to the provisions of the Supreme Standard and the formal admissibility of the action; In order for this to be effective, it must be guaranteed that the citizen has the real possibility of acting quickly and easily, and that there are appropriate remedies to respond.
The effectiveness of the protection action does not depend solely on its formal regulation, but also on the political will, the ability of legal operators, legal practice, and the control of the Constitutional Court. Judges under the Constitution guarantees that he governs us, must act as activists to defense fundamental rights, providing with creativity and courage comprehensive repairs that respond to the true tuitive purpose of the protection action, whose objective is clear, protect directly and effectively the rights recognized in the Constitution, aiming to repair the damage caused, to cease to be produced or prevent it if there is the presumption or clear indications that the illegitimate act may occur.
Leave feedback