Medidas cautelares constitucionales autónomas : regulación de la Ley Orgánica de Garantías Jurisdiccionales y Control Constitucional.

Abstract

The judicial concept of a Precautionary Measure has been in existence since the times of Pretor. Pretor, whose main responsibility was to administer justice, had also the role of roman magistrate with the powers of granting injunctions/orders. A Precautionary Measure is a judicial disposition that can be requested and granted before the beginning of the litigation process where the pertinent principal cause of action would be addressed. It is not a prelitigation requirement. Its objectives are, i) to anticipate and avoid possible damages, or ii) to guarantee the outcome of the final disposition sought in the main cause of action. In this order, and based on Art. 87 of the Constitution, the Constitution grants Constitutional Court magistrates the power to award Precautionary Measures accompanied by a Constitutional Action to stop the actual or imminent infringement of a right. Art. 87 also allows for the granting of independent or autonomous Precautionary Measures. These independent Precautionary Measures do not require for the instrumentalization of a principal cause of action. Independent Precautionary Measures’ goal is to prevent disposition or administrative acts that could make it impossible for the execution of a verdict granted on a main and principal cause of action. The judicial effects of this Independent Precautionary Measures should be temporary. They should be in effect only for a reasonable period. This is to avoid infringement on the counterpart’s constitutional rights, because of the unclear nature of the law that regulates Precautionary Measures. The law regulating Precautionary Measures does not expressly determine when is the Judge required to declare the Measure extinct, expired or revoked.