La eficacia procesal de la acción de repetición en los procesos constitucionales

Abstract

This thesis covers the analysis of the procedure for the recourse action included in the Organic Law of Jurisdictional Guarantees and Constitutional Control from a procedural point of view. It should be noted that the Constitution of the Republic of Ecuador establishes the obligation of entities from the State to exercise the right of repetition against public servants who caused damage.

For public institutions to exercise this right, they need a clearly and precisely defined process, from its inception to its execution. However, this process is scattered throughout current legislation, as it is developed in various legal bodies, both in rulings from the Constitutional Court and the National Court of Justice. This leads to non-compliance by the institutions and, consequently, hinders the State's duty to protect the public coffers.

The objective of this study is to propose recommendations aimed at regulating this process within current regulations and ensuring proper institutional functioning. The first chapter examines the declaration of state liability and the right to repeat within the jurisdictional guarantee of the protection action. It also examines the types of liability that public servants have. It defines the damage and the attribution to the entity suing. It therefore defines the object of the recourse action and highlights the need to analyze intent or gross negligence to recourse against the individual who caused the violation of rights. The second chapter sets out the procedure for recourse actions, the difficulties in determining the degrees of personal liability for the conduct of public officials in the performance of their duties, and the importance of the intervention of the State Comptroller General's Office to conduct a prior investigation within institutions.