Importancia del ejercicio probatorio en la protección del derecho a la libertad en procesos constitucionales de hábeas corpus

Abstract

The present titling work focused on the importance of the evidence to safeguard the right to liberty in constitutional processes of habeas corpus. In this sense, since 2008, when the constitution issued in Montecristi came into effect, the Ecuador is considered a Constitutional State of Rights and Justice, its purpose is to guarantee the rights protected by the Constitution, International Instruments and all those that derive from human dignity, in a that today, this configured a positive change, since there is talk of a state of right and not rights as the country was previously considered, therefore, the central axis is the supreme norm and not the law, which entails that all public or private acts be subject to it, including the law itself, in such a way that it implies a progressive result in terms of rights that are attributed to all people both ecuadorians and foreigners, without any distinction, since that, in the ecuadorian constitutional framework, all rights have the same hierarchy, consequently, people who believe they have been harmed by the violation of their rights can demand their immediate compliance through a set of guarantees provided for in the Constitution of the Republic. By virtue of that, in a process when violations of rights are alleged, the evidence is necessary and timely, which serves as a fundamental basis to hold the facts or assertions of the case, in a concrete way, the announcement, admissibility, practice and evaluation of the evidence in a constitutional process is developed differently from the ordinary process. In the medullary, for the evidentiary analysis of the specific case, extensive normative bodies was used as materials, such as the Constitution, International Instruments, Organic Law of Jurisdictional Guarantees and Constitutional Control, Jurisprudence and doctrinal criteria, which resulted in the evident relevance that has the proof in the guarantee of habeas corpus, since it is an indispensable part of the process for the protection of the right to freedom. In conclusion in the present case under study, the judge, when analyzing a habeas corpus action, will have the primary duty to protect the constitutional right that is presumed violated, in this sense, in the absence of a flagrant crime or prior order for the deprivation of liberty of a person, a request for freedom cannot be denied, in addition, the judge at the time of issuing the ruling orally, cannot determine within a constitutional process that the plaintiff failed to prove the violation of said right when the defendant is the State, since the entire burden of proof should not fall on the plaintiff, but it must also fall on the defendant, so there must be a distribution of the burden of proof, such is the case, that in constitutional matters the figure of reverse evidence is recognized, if the accused does not prove, the judge must presume that the violation occurred, unless you are certain that said violation did not occur.