Acción de protección por conculcación del derecho constitucional de atención prioritaria de los niños, en contra de autoridad publica.

Abstract

Latin America from the eighties and nineties, takes a new turn within the state models; adopting the new guarantee and constitutional models of the European countries and the USA. It is like that, that constituent processes in countries like Nicaragua in 1987, Brazil in 1988, Colombia in 1991, Paraguay in 1992, Peru in 1993, Argentina in 1994, Venezuela in 1999, Ecuador in 2008 and Bolivia in 2009, together with reforms to texts. existing constitutional as in Costa Rica, Mexico and Chile, are examples of the acceptance and (re) formulation of neo-constitutionalism in Latin America. These constitutional changes brought with them new conceptions of fundamental rights and new reciprocal expectativities between the governed and the rulers in such a way that the legitimization of the authorities and the public policies of a State depend to a large extent on the fundamental rights and the means of guarantee. of protection that they recognize and offer. In Ecuador, the change from a Liberal State with a constitutional model to a Constitutional State of Rights and Social Justice, results in a change of legal culture. The Constitution of Ecuador of 2008, essentially guarantees, creates a series of jurisdictional actions for the protection of human rights, such as: the Protection Action, the Habeas Corpus Action, the Habeas Data Action, the Action for Non-compliance, the Access to Public Information Action and the Extraordinary Protection Action. Although it is true that the Constitution of Ecuador of 1998 recognized some constitutional guarantees such as the Action of Amparo, the Habeas Corpus or the Habeas Data; the lack of knowledge, political will or legal culture to apply constitutional norms, of international law or of jurisprudence of international human rights organizations, brought as a consequence that in several cases, the judges of the instance or the Constitutional Court itself, will continue to apply internal rules of civil, administrative, criminal or other rights. Some authors consider that constitutional actions constitute rights in themselves, making reference to the international obligation of states to introduce judicial guarantees that protect human rights in their legal systems. Having a constitutional action that protects human rights such as the protection action contained in the Constitution of Ecuador in force since October 2008, by itself does not constitute a satisfactory or sufficient response for it to become effective and adequate, but that depends on the legal practice, the political will and the concrete or abstract control of the Constitution that is exercised by the Constitutional Court with a binding character. From this point of view, and in order to fulfill the objective described above, it is necessary to analyze the practical aspects of the protection action in light of the purpose that this institution has within the context of constitutional guarantees and in the light of the that we could define as the renewed spirit of the Constitution of 2008. From this derives the obligation to demonstrate that the content of the Constitution, read systematically, demonstrates a prevalence of rights over any position of power, which could be defined as a model 'hyperguarantee of constitutional rights' as a parameter of rationality, justice and legitimacy in the function of protecting rights and constitutional guarantees.