La inconstitucionalidad de la reformulación de cargos en la legislación penal ecuatoriana

Abstract

The following research centers its study on the unconstitutionality of restatement of charges in the Ecuadorian criminal legislation, in order to determine if there is a violation of constitutional rights, such as: the due process of law, the right to defense, the principle of equity between procedural parts, and the principle of congruence, which are recognized at the Constitutional level and the level of International Law, in general. Restatement of charges is regulated for the first time in the Integral Criminal Code (Código Orgánico Integral Penal), which determines the following possibility: if during the Prosecutor’s Instruction, the results obtained from the investigation justifiably modify the legal qualification of the imputation that has been done during the formulation of charges, the Prosecutor has the possibility to request the judge a hearing about restatement of charges; which, in case of being held, the term of the Instruction extends up to thirty days non-extendable, where a new restatement is not allowed.

In the following study, the technique of interviewing practicing lawyers, Ecuadorian jurists and former Criminal judges has been used, so the qualitative technique was predominantly used, applying analytic, synthetic, deductive, historic and sociologic methods.

The results of the following investigation show that there are split opinions; in one hand, those who consider that restatement of charges is unconstitutional because it violates the right to count with enough time and resources needed to a defense, the due process of law; and specially, it violates the principle of equality - equality of arms, opportunities, in the same conditions between the procedural parties.