La vulneración del principio de seguridad jurídica en la falta de parámetros para la reapertura de las investigaciones previas en el procedimiento ordinario de conformidad con el Código Orgánico Integral Penal.

The Comprehensive Organic Penal Code (COIP) contains various types of procedures, depending on the specific characteristics of each case. Among these procedures is the ordinary procedure, which is one of the most common when processing criminal cases. The procedure begins with the notification of the crime, which is the essential requirement to initiate this pre-trial phase. The preliminary investigation cannot remain open indefinitely, which is why the law stipulates that, under certain circumstances, the prosecutor, as the holder of public criminal action, must decide, after a specified period and under certain conditions, whether to initiate the criminal process by requesting that the judge of criminal guarantees convene the hearing for the formulation of charges; or, if the prosecutor decides to request, with justification, the archiving of the preliminary investigation. Until this moment, there are no issues or concerns that would affect the rights of the parties involved in the criminal procedure. However, what happens if new elements of conviction arise that justify the reopening of a preliminary investigation that has already been archived but not yet expired? The current Comprehensive Organic Penal Code does not provide clear guidelines to address this need in a way that does not affect the rights of either the victims or the accused. The previous Code of Criminal Procedure, although not addressing all legal gaps, was more detailed in its provisions, as it established that if a provisional archive was ordered, it could be reopened; and if a definitive archive was issued, a request for reopening could be made to the prosecutor, even appealing to the superior prosecutor in case of refusal. These guidelines were omitted in the current Comprehensive Organic Penal Code, and to date, this legal gap has not been addressed. Furthermore, from a constitutional perspective, Article 82 of the Constitution of the Republic guarantees the right to legal certainty, which, according to the Constitution, is grounded in respect for the Constitution and the existence of prior, clear, public legal norms applied by the competent authorities. According to doctrine, this implies certainty in the norms and, consequently, the predictability of their application. Therefore, in the process of the preliminary investigation, since the victim does not have the necessary parameters to fully enjoy the right to legal certainty, a violation of the constitutional principle occurs. As a result, a legal reform proposal is suggested to remedy this legal gap.

• Главный автор: Toapanta Perguachi, Fabián Eduardo (author)
• Формат: masterThesis
• Язык: spa
• Опубликовано: 2025
• Предметы: víctima; archivo; investigación previa; seguridad jurídica; reapertura; derecho procesal; COIP
• Online-ссылка: http://dspace.unach.edu.ec/handle/51000/14948