Las sentencias atípicas en el marco del control constitucional.

Abstract

This investigation carries out an analysis of the atypical sentences issued by the Constitutional Court and its incidence in the Principle of Separation of State Powers as part of the constitutionality control of the Constitutional Court. The problem is that, when issuing atypical sentences, the Constitutional Court exercises the powers of a positive legislator, implying in some cases, it can change the literal wording or the content of the infraconstitutional legal norms, a power that belongs to the National Assembly. This supposes a contraposition to the Principle of Separation of Powers of the State, affecting the guarantee of legal certainty. As a general objective, it is proposed to analyze whether the issuance of atypical sentences violates the aforementioned principle, in addition to regulating these sentences within the Ecuadorian legal system, through an amendment to article 436 numeral 3 of the Constitution of the Republic of Ecuador and a reform to article 76 numeral 4 of the Organic Law of Jurisdictional Guarantees and Constitutional Control to harmonize the powers of the Constitutional Court and the National Assembly. The methodology of this research applies the qualitative modality, carrying out the study of doctrine and legal norms, the consultation of experts in constitutional procedural matters and the evaluation of the proposal. The results of this investigation determine the feasibility of carrying out the aforementioned reform. Indeed, it is concluded that, in Ecuador, the Constitutional Court has a role as a positive legislator, an attribution that must be regulated in the legal system, in order to guarantee legal security in the country.