Constitutional protection action in Ecuador, between rights guarantees and procedural misuse

Abstract

The protective action is regarded as a Constitutional Guarantee that—according to statistics published by the Council of the Judiciary—recurs frequently in Ecuador. Although, since its creation, it was presented as a legal tool for the defense of human rights, there has been an indiscriminate use or abuse of this guarantee, which has undermined its legal origin and revealed that it can function as a dilatory mechanism of law, thereby causing a procedural overload in constitutional matters. This research aimed to detect whether the abuse of this guarantee is due to legal or procedural ignorance. To this end, qualitative, non-experimental research was carried out, using the exegetical method to analyze the relevant normative scope. This involved examining the history of the protective action in Ecuador, analyzing the norms and jurisprudence of the Constitutional Court, and the origin of the distortion and abuse of the right in the Ecuadorian justice system. Similarly, the research, through the inductive-deductive and analytical-synthetic methods, analyzed the ruling of the Constitutional Court, contrasting the normative and doctrinal approaches on the subject. It was demonstrated that the distortion of the protective action comes from its improper performance in disregarding the admissibility requirements, thereby deliberately resulting in an abuse of rights.