Procedencia de la garantía jurisdiccional de acción de protección, y el abuso del derecho en su interposición.

Abstract

The innovative character of the Supreme Norm of the Republic is indisputable. Sanctioned and in force since 2008, it transcends as a guarantee instrument that privileges the protection of the rights established therein, both in favor of individuals and groups, against the arbitrariness of public and / or private institutions. Under the consideration that the Magna Rule establishes Ecuador as a constitutional State of rights and justice, relieving as an obligation of the State, prescribed as its highest and most important duty, that of respecting and enforcing the Constitution, the existence of a systematic structure of protection, which guarantees the enjoyment of constitutional rights, and those contained in international treaties on human rights, in accordance with the avant-garde and neo-constitutionalist vision of law. But this guarantee spectrum that was conferred on the rights by the Constitution of Montecristi, presents on some occasions a problem for judges: the protection and constitutional protection required by citizens on rights whose protection does not fall within the jurisdictional jurisdiction, as they are conflicts of legality, recognition of rights, not being the most suitable or expedited way, and / or existing mechanisms of defense of those rights in the "ordinary" judicial scope. Thus, the objective of this investigation is limited to the determination of the substantial elements for the origin of the exercise of the protection action, and offer a solution to alleviate the burden of judges, when they know of jurisdictional guarantees initiated for the protection of rights whose violation does not go beyond the legal scope.