La calificación de maliciosa o temeraria a la denuncia o acusación particular: derechos, omisión judicial y parámetros, en Cuenca 2022-2023

Abstract

In the field of Criminal Procedural Law, the qualification of the complaint and the private accusation as malicious or reckless is developed. This study seeks to identify the reasons why judges omit to make this qualification. First the current research will be eminently qualitative, focused on obtaining information from bibliographic materials in correlation with the provisions of the Código Orgánico Integral Penal, to address the fundamental aspects and the problems that comprise such qualification.Additionally, an analysis of sentences issued by the Unidad Judicial Penal and Unidad Judicial de Violencia in Cuenca will be conducted to examine the practicality and reasons for the judicial omission of the qualification. The results show that judges do not qualify the private accusation and especially the complaint, because the victim exercises her right to stop participating in the process. However, the judges of the Corte Provincial de Azuay argue that this right does not oppose the possibility of qualification, since the rights of the denounced or accused must also be considered: equality of conditions, effective judicial protection, and the right to honor and good name.