Granting Protective Measures in Cases that Lack Objective Support and Real Risk: A Violation of Due Process

Abstract

The study on protective measures, particularly when these are granted immediately and automatically without a prior analysis of the strict existence of an objective basis and a real risk, generates discrimination, uncertainty, and legal insecurity regarding the basic guarantees of due process that the accused should enjoy. This research focused on examining the negative effects arising from such granting, seeking to highlight the erroneous decisions made by judicial authorities, which often disregard the principle of procedural equality, thereby minimizing the guarantees of the accused. This situation creates dissatisfaction within both Ecuadorian legislation and international treaties, resulting in a lack of effectiveness in safeguarding the constitutional rights and guarantees that every individual, as an accused person, must possess without diminution. The methodology employed was based on a qualitative approach with a descriptive level of depth, applying methods such as the inductive–deductive approach. Hence, it is essential to incorporate into the legal framework a procedure and specific requirements established as a basic standard that allow for the identification of a real risk, in order to subsequently grant protective measures while ensuring respect for the rights of all parties—both the victim and the accused—in accordance with the principles of procedural equality and due process.