El uso indebido de la acción de protección en Ecuador : entre el garantismo constitucional y la distorsión del sistema judicial.

Abstract

This paper analyzes the improper use of the Acción de Protección (Constitutional Protection Action) in Ecuador, arising from a normative antinomy between Articles 75 and 88 of the Constitution and Articles 40 and 42 of the LOGJCC. Employing an analytical-descriptive and dogmatic-legal methodology, the study examines how this normative contradiction has distorted a remedy originally conceived as subsidiary, transforming it into a parallel procedural mechanism that replaces ordinary legal avenues, thereby overburdening the judiciary and undermining legal certainty. The research demonstrates that the misuse of this constitutional action is manifested in three core practices: the improper constitutionalization of disputes that are strictly legal or administrative in nature; the repeated filing of such actions in matters where effective ordinary remedies are available; and the lack of sufficient legal reasoning to establish the violation of a constitutional right in the claims submitted. The study identifies three fundamental issues: the excessive and inappropriate use of this remedy against decisions issued by public authorities without a clear demonstration of a constitutional rights violation; the lack of consistency in judicial criteria; and judicial congestion, which weakens the effective protection of rights in cases that genuinely warrant constitutional review. Through a jurisprudential analysis of the Constitutional Court and a review of the current legal framework, the paper reveals the urgent need for specific reforms to ensure that the protection of fundamental rights remains within the constitutional limits that justify its existence. These reforms include: the explicit incorporation of the principle of subsidiarity into Article 39 of the LOGJCC; the establishment of specific criteria for comprehensive constitutional analysis in Article 42; the inclusion of general circumstances derived from Constitutional Court rulings relating to the three subsections of Article 40; and the reinforcement of the principle of specialty within the Organic Code of the Judicial Function, which would restrict the use of the action as a mere procedural shortcut.