La presunción de inocencia vs la inversión de la carga probatoria en los delitos ambientales.

Abstract

ABSTRACT “THE PRESUMPTION OF INNOCENCE AGAINST THE INVESTMENT OF THE PROBATORY LOAD IN ENVIRONMENTAL CRIMES” Author: Modesto Junior Masache Macanchí Tutor: Ab. Mgs. José Eduardo Correa Calderón Ecuador, from the Constitutional reform carried out through the 2008 Constituent Assembly, goes from being a State of Law, to becoming a Constitutional State Guarantee of Rights and Justice. As expressed in article 1 of the Rule of our country. Within the novelty of our legislation is that from such constitutional reform Nature is recognized as a subject of law: Article 10 paragraph 2 "Nature shall be subject to those rights recognized by the Constitution". The current Constitution in its Chapter VII establishes the Rights of Nature, the Rights to Restoration and Precautionary and Restraining Measures for all those activities that may threaten the Environment. That is to say, basically the basic guarantees are established to protect Nature, to sanction those natural or legal persons that attempt against it. My case study does not go along that research line, rather, we focus on the sanctioned person, which is why it is necessary to be very clear that, the Constitution ratifies the protection of the Fundamental Rights of people, as established in Article 76 subsection 2 of this rule; "The innocence of every person will be presumed, and will be treated as such, as long as their responsibility is not declared by means of a firm resolution or enforceable judgment." And it is exactly the right to the presumption of innocence our turning point of my research topic, because it will be based on the specific analysis of the contrast that occurs between article 397 subsection 1 of the Constitution focusing directly on its last paragraph: “The burden of proof on the non-existence of potential or actual damage will fall on the activity manager or the defendant” and, article 76, paragraph 2 of the same rule: “The innocence of every person will be presumed, and will be treated as such, as long as its responsibility is not declared by means of a firm resolution or enforceable judgment ”. The criminal case with No. 07309-2019-00745, will serve as a basis of study for the problem raised, opened in the Court of the Judicial Unit of the Arenillas Canton, in the Province of EL Oro, for the crime of INVASION OF IMPORTANT AREAS ECOLOGICAL Carried out under Direct Procedure, with a FISCAL INSTRUCTION that lasted 10 days, from July 17, 2019 until July 27 of the current year. The procedural subjects that are part of this case are: The State as offended. Prosecutor’s Office The accused are: Guamán Lima Santos Manuel Pérez Guanca Darwin Humberto Pérez Guanca John Ricardo Ruiz Camacho Hugo Artemio Cacay Merizalde Milton Joselito Mendoza Rogel Cristian Alexander The crime in question occurred in the ARENILLAS ECOLOGICAL RESERVE, to the southwest of Ecuador, in the Province of El Oro, near the border with Peru, between the cantons of Arenillas and Huaquillas. The Provincial Directorate of the Environment of El Oro, to avoid irregular logging, contamination, invasion, extraction, etc., periodically schedules randomized control and surveillance tours within the limits of the Arenillas Ecological Reserve, especially in the sectors more sensitive to this problem. On July 16, 2019, the Lcdo. Teddy Ocho Pérez, Provincial Protected Areas Specialist - Responsible for the Arenillas Ecological Reserve, announces that on the aforementioned date he participates in a patrol of control, surveillance and monitoring of affected areas in the north central area of the protected area. Brief Description Of The Activity. Being 12 and 30 of July 16, 2019, they carry out a round of control and surveillance in the north central area of the Arenillas Ecological Reserve, at the height of the “Molina” detachment, where they notice the presence of a motorcycle brand: OROMOTO, color: blue, model: OM 125 of HO501W plates, proceed to give notice to the PROVINCIAL PROTECTED AREAS SPECIALIST - RESPONSIBLE FOR THE ECOLOGICAL RESERVE ARENILLAS, manifest an attempt to invade and / or affect the protected area, take contact with the ECU 911 and coordinate the arrival of the police in the area. The Mobile Unit Road 1 Arenillas, conformed by the Sgto. Javier Figueroa Tavanta and Cbop. José Palacios Chincay, they arrive at the “Pintag Nuevo” camp of the Arenillas Ecological Reserve, they get in touch with Mr. Luís Gainza Proaño - Guardaparques, they go to the area of interest, they observe people doing trail work (trails, roads) inside the forest, apparently delimiting in batches, since they realize numbering at the entrance of each trail, being these activities that are not contemplated within the management of protected area. They approach people to know the reason for their presence in the sector, one of them states that they were hired by mr. Juan Villalta to delimit a property that supposedly belongs to mr. Pietro Lautaro Riqueti Castillo. The people found in the area carrying out activities that would undermine the dry forest activity of the Arenillas Ecological Reserve are: Milton Joselito Cacay Merizalde; Darwin Humberto Pérez Guanga; Guamán Lima Santos Manuel; Jhon Ricardo Pérez Guanga; Hugo Artemio Ruiz Camacho; Cristian Alexander Mendoza Rogel; and two people fled after noticing the presence of the police. The Provincial Protected Areas specialist explains to those present that they were within a Protected area. “ARENILLAS ECOLOGICAL RESERVE” and that is immersed in a crime when carrying out an activity that undermines said protected area, the police proceed to read their rights and are transferred to the Arenillas Canton Prosecutor's Office and from there begin the TAX INSTRUCTION of all those mentioned above for the crime of INVASION OF AREAS OF ECOLOGICAL IMPORTANCE.