La casación penal en Ecuador: su procedencia por falta de aplicación de la ley

Abstract

The filing of the extraordinary appeal for criminal cassation, in Ecuador, based on the violation of the law in a sentence, means that the appellant must take into account any of the three components established in the law. However, when focusing on the ‘expressly contravening’ component, a diaspora of criteria arises to conceptualize or define it, coming from the legislator, doctrine, jurisprudence and comparative law, which makes it very difficult to decide when, in fact, the user of justice, is before the stated component. Then, with the application of the qualitative approach and following the theoretical legal, historical-logical, exegetical-analytical and comparative legal methods, the general objective is formulated: ‘Critically review the bases that lead to the legal formulation of article 656 of the Code Comprehensive Criminal Organic Law on the origin of the Cassation Appeal, specifically, regarding the first component of the violation of the law as “expressly contravening its text”, confronted with the principle of exhaustiveness and the jurisprudential line drawn by the National Court of Justice of the Ecuador, which, by stating that “… contravening the law is the same as its lack of application”. Arriving at the conclusion that, strictly speaking, the “express contravention” component is poorly formulated.