Inconstitucionalidad de la agravante establecida en el artículo 47 numeral 20 del código orgánico integral penal

Abstract

In Ecuador and the Constitution of the Republic, the National Court of Justice is the highest organ of administration of ordinary justice, its president will be the one who represents the Judicial Function of the country; The general function of the National Court of Justice consists of guaranteeing legal security and safe guardianship of the processed person; Based on this context, the objective of the investigation has been proposed to determine the unconstitutionality of the aggravating circumstance established in article 47, numeral 20 of the Comprehensive Organic Criminal Code, for violating the procedural principle of "presumption of innocence", guaranteed in the same body legal, in article 5 numeral 4 and mainly article 76 numeral 2 of the Constitution of the Republic of Ecuador, for this we resorted to bibliographic research of scientific publications published in indexed journals, as well as narrative and jurisprudential reviews; As a result of the investigation, the unconstitutionality of article 47 numeral 20 of the Comprehensive Organic Penal Code could be evidenced, by means of which it is possible that the judge may aggravate the penalty when it comes to a person who has been apprehended in flagrante delicto, for which reason This reality is known as something unlawful, because when an individual is apprehended it does not express that he is guilty, a process must be followed and by means of the enforceable sentence resolve the responsibility of the imputed crime; the process is violated by using prior apprehension as an aggravating factor, violating the right to judicial protection.