Inconstitucionalidad en la improcedencia de la suspensión condicional en casos resueltos bajo procedimiento abreviado.

Abstract

Two procedural Institutions of significant favorability for the offender have been incorporated into the Código Orgánico Integral Penal, the Abbreviated Procedure and the Conditional Suspension of the Sentence. In their regulations, both present requeriments that turno ut to be compatible; however, there was a dichotomy of interpretations regarding the admissibility of both institutions in the same case caused mainly by the wording of article 630 of the COIP, wich mentions the Trial Hearing as appropiate procedural moment to request the suspensión, while the Abbreviated Procedure han only one special hearing. By virtue of this duality of criterio that affected legal certainty, the trial judges submited a query to the Plenary of the National Court of Justice. The Court issued Resolution 02-2016 that resolves the inadmissibility of the concurrence of both institutions, but, after analyzing this resolution under the Constitution, the argument of the Plenary is unsatisfactory, since constitutional and supraconstitutional principles were ignored and therefore violated: Minimum Criminal Intervention, Progressivity, Pro Homine and Right to Motivation. Thus, in the present development I demonstrate the way in wich this desition violates the aforementioned principles, in addition to comparing both the doctrinal conceptions, legal nature and objecto f both institutions, to determine the validity of its origin. Finally, I highlight the need for a declaration of Unconstitutionality.