Discrecionalidad de la actuación fiscal frente a la formulación de cargos en la normativa ecuatoriana

Abstract

The article makes a critical analysis of the prosecutor's actions based on the powers conferred by the criminal law in force in Ecuador. In this scenario, it can be observed that the professional in charge of the criminal investigation suffers from unbridled powers that problematize the higher ideal of the criminal system, this responds to the guarantee of the rights of the procedural parties, both the victim and the alleged offender, the latter has sometimes been deprived of liberty as a result of an ill-advised formulation of charges that has failed to observe the postulates established in the law and that is irremediably based on meager investigations carried out mainly in the preliminary investigation phase in accordance with the provisions of the Comprehensive Organic Criminal Code of 2014. The proposed objective responds to the analysis of the professional practice of the prosecutor in the preprocedural phase mainly and how this conditions the formulation of charges of the defendant, through a qualitative research and the use of methods of bibliographic review, as well as synthesis and observation of scientific articles according to the developed themes. In conclusion, there is a socio-legal scenario where the prosecutor, despite the fact that he must observe the principle of objectivity in the exercise of his profession, still prevails the discretionality that far from looking after the rights of both parties continues to harm the offender by isolating him in prison as the only alternative.