El principio de proporcionalidad y su aplicación en el juzgamiento constitucional del Ecuador. Análisis de sentencias.

Abstract

The principle of proportionality is a concept based on the need, perceived by the constitutional doctrine, of rational interventions done by the governing authorities on the sphere of the exercise of rights and even in its lack of fulfillment by legitimate limitations. Its influence has an important impact in the decision making process of the application of justice. It is also a polysemic concept, highlighting in it, an approach as an axiom and also as an interpretative technique, mainly. This study is of an exploratory nature and accounts for what has been found both in the application and the absence of it in Ecuador. As Carbonell states “the principle of proportionality constitutes a maximizer of fundamental rights in coherence with factual and legal possibilities. It is a mandate of optimization.” (2018, p. 1) This study gives evidence of the lack or absence of its consideration, noting also the incoherence between variables considered in the cases mentioned, in the sanction’s determination. This means the reader will find the description of facts with the accompanying reflection on them under the analysis of this principle, considering its many uses. Throughout this study, it will be possible to reach the conclusion that there is no irreconcilable separation in its possibilities of use, since as a technique, without a doubt, it supports rigor based on acting as a principle. The aforementioned is the product of an exhaustive review carried out in Ecuador and of the exploration of the doctrinal bases for inferences, given by the historical development of the content and limits of such principle: the same one that, under a neo-constitutional formula implies as a sub-principle to the so called weighing technique.