APLICACIÓN DEL CONTROL DIFUSO DE CONVENCIONALIDAD, POR LOS JUECES DE PRIMERA INSTANCIA EN MATERIA DE GARANTÍAS

Abstract

The control of conventionality is a legal figure, elaborated by the Inter-American Court of Human Rights, with the purpose of guaranteeing that the provisions of the American Convention on Human Rights are not restricted or undermined. The novelty of the figure of the Inter-American Court is its internal demand, that is, that the States Parties must apply fuzzy control, in this way, it is a requirement to the judicial branch its application. It is a diffuse control of conventionality. In the Ecuadorian case, there are processes of jurisdictional guarantees that have the purpose of protecting and guaranteeing constitutional and international rights, and that, by their very nature, there are conflicts between constitutional rights, or between these and the provisions of international rights. In this way, the investigation has focused on the application of fuzzy control of conventionality in terms of jurisdictional guarantees. It has been found that, although there are precedents of the Court, and also the Constitution of the Republic establishes a provision repealing any rule contrary to the internationally recognized rights, the Constitutional Court opts for acceptance tacit of conventionality control. Consequently, the Constitutional Court finds that the provision contained in Article 428 of the Constitution obliges the ordinary judges to submit a query, any rule which doubt about its constitutionality and conventionality, which means that ordinary judges they can not directly apply the rule.