La insuficiencia normativa del Artículo 608 del Código Orgánico Integral Penal.

Abstract

The Ecuadorian criminal process unfolds within a constitutional state based on rights and justice; consequently, criminal prosecution cannot be understood merely as the exercise of state power to investigate and punish offenses. The exercise of this power must be regulated by safeguards against punitive authority—which must not be excessive—so as to protect the accused from arbitrary action. The evaluation and trial preparation stage falls between the prosecutorial investigation phase and the oral trial. This stage does not determine the accused's guilt; rather, it serves to verify whether the accusation is sufficiently supported by law to proceed to trial. During this phase, issues such as procedural validity, the legality of evidence, minimum standards for the accusation, and the scope of the dispute to be heard by the court are reviewed. Therefore, it should be viewed not merely as a continuation of the case file, but as a stage for preliminary judicial oversight. The challenge lies in defining the boundaries of this oversight. The hearing could devolve into a mere formal prelude to the oral trial if the criminal guarantees judge limits their role to simply determining whether or not a prosecutorial accusation exists. Conversely, if the scope of this phase is exceeded, the process could effectively become an evidentiary assessment akin to that of a trial court. The balance lies in exercising oversight regarding specific aspects of the evidence—legality, sufficiency, and individualization—without making a determination of criminal liability or supplanting the assessment performed during the trial itself. This inquiry focuses on the order to proceed to trial (*auto de llamamiento a juicio*) established in Article 608 of the Comprehensive Organic Criminal Code. As the regulatory provision authorizing the transition to the trial stage, this order must be supported by adequate reasoning—going beyond a self-evident justification or a mere restatement of the prosecutor's charge. Thus, the legal issue centers on the lack of precision in Article 608 regarding the minimum content required for the reasoning behind the order to proceed to trial.