Unidad Académica de Ciencias Sociales
URI permanente para esta comunidadhttps://dspace.ucacue.edu.ec/handle/ucacue/6
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Examinando Unidad Académica de Ciencias Sociales por Asesores "Monsalve Robalino, Bernardo Xavier"
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Ítem Acceso Abierto Análisis de la presunción de inocencia en sentencias absolutorias que mantienen medidas de protección en casos de violencia contra la mujer(Universidad Católica de Cuenca., 2025) Vallejo Fajardo, James Matthew; Monsalve Robalino, Bernardo Xavier; 1723099576The presumption of innocence is a basic guarantee of the right to due process, considered one of the fundamental principles of current criminal law. It is regulated by the Constitution of the Republic of Ecuador (2008), the Comprehensive Organic Criminal Code, and other international human rights treaties. However, in the context of violence against women and family members, cases have been identified in which, despite acquittals, protection measures are upheld, potentially violating this right. This study examines the legal justification for these measures and their implications for the rights of the accused through an analysis based on various methodologies, such as the inductive-deductive method, legal exegetical analysis, and legal dogmatics. It is evident that the continued enforcement of protective measures following an acquittal may violate the right to presumption of innocence due to the lack of sufficient legal basis for their application once a verdict of innocence has been reached. This situation creates a conflict in legal practice that should be reviewed in accordance with national and international norms.Ítem Acceso Abierto Análisis de los mecanismos de reparación integral para el delito de lesiones en la legislación jurídica del Ecuador.(Universidad Católica de Cuenca., 2024) Ortiz Jaramillo, Paola Alejandra; Ullauri Calderón, Carmen Lucía; Monsalve Robalino, Bernardo Xavier; 1400676530; 0941410649According to the legislation in force in Cuenca, Ecuador, the research focuses on a detailed analysis of the integral reparation mechanisms applicable to the crime of injury. The study objectives are diverse, and firstly, it aims to define the concept of integral reparation and the associated theories within the Ecuadorian legal context. Secondly, it seeks to comprehensively describe the mechanisms applicable in cases of injury. Finally, it examines how these mechanisms are being implemented in practice, mainly focused on underutilizing the mechanism for non-pecuniary damage. The qualitative methodology employed in this research is based on the hypothesis that victims of crimes of injury do not receive complete and adequate reparation. This issue reveals several deficiencies in the mechanisms provided by Ecuadorian legislation. The proposal includes a critical evaluation of current practices and their alignment with international justice standards to ensure adequate and fair reparations.Ítem Acceso Abierto Análisis del uso abusivo de la prisión preventiva bajo el enfoque del derecho penal del enemigo en Ecuador(Universidad Católica de Cuenca., 2024) Altamirano Pacheco, Evelyn Mariela; Monsalve Robalino, Bernardo Xavier; 0150518124This study analyzes the influence of preventive detention in the context of the Criminal Law of the Enemy in Ecuador, focusing on its impact on the fundamental rights of individuals. The lack of motivation and justification by judges in applying this precautionary measure has generated a debate over its legitimacy and justification. On the one hand, it is argued that preventive detention should not contravene fundamental rights such as freedom and physical integrity nor be a means to exercise violence, emphasizing the need for this measure to be proportional, reasonable, and necessary. On the other hand, its usefulness is defended as an essential tool to guarantee public safety and prevent the perpetration of serious crimes. The main objective of this research is to analyze how the application of preventive detention within the framework of the Criminal Law of the Enemy affects these fundamental rights and to examine the existing relationship between insufficient judicial justifications and human rights violations in criminal proceedings. The main conclusion is that the disproportionate application of preventive detention, without adequate justifications, not only violates fundamental rights but also delegitimizes the judicial system in Ecuador, highlighting the urgent need to review and reform its use to balance public safety with the protection of human rights.Ítem Acceso Abierto Atipicidad del aborto culposo en tránsito: desprotección del derecho a la vida del nascituro y reparación a víctimas indirectas(Universidad Católica de Cuenca., 2024) Barros Siguencia, Katherine Cristina; Monsalve Robalino, Bernardo Xavier; 0106516230The uncommon case of wrongful abortion in the Ecuadorian Comprehensive Organic Criminal Organic Code (COIP by its Spanish acronym) has emerged as a crucial issue, especially within the context of transportation and road safety. The importance of addressing this issue lies in the need to protect both the right to life of the unborn and the right to personal integrity of the pregnant mother, particularly when the abortion results from a traffic accident. To analyze this problem, a documentary methodology was used to conduct a study of the current criminal legislation in Ecuador and identify possible legal gaps regarding the protection of the right to life of the unborn and the integrity of the pregnant mother. Likewise, a comparative methodology was used to examine how wrongful abortion is regulated in other international legislation to determine the practices and regulations in countries that have criminalized this issue in the context of traffic accidents and evaluate its applicability in Ecuador. Based on these analyses, this research focuses on evaluating the need to include the criminal offense of wrongful abortion in criminal legislation. Therefore, it will explore the legal and ethical implications derived from the absence of a specific classification of wrongful abortion in criminal law. Ecuadorian legislation considers constitutional rights and relevant international treaties that grant responsibility to the Ecuadorian State as the guarantor of human rights recognized by international law.Ítem Acceso Abierto El incumplimiento de la responsabilidad subsidiaria del estado, por falta de seguridad en los centros de rehabilitación social.(Universidad Católica de Cuenca., 2024) Morales Duran , Juan Pablo; Aguirre Criollo, Heidy Gabriela; Monsalve Robalino, Bernardo Xavier; 0106626591; 0150662179The violation of the right to personal integrity of persons deprived of liberty in Ecuador is eminently high, primarily due to non-compliance and breach of the State’s subsidiary responsibility and the lack of security guarantees within Ecuador’s social rehabilitation centers. This situation exposes people deprived of liberty to various risks to their integrity, including physical and psychological violence, sexual abuse, and extortion, among others, associated with this type of crime. This reality not only violates the fundamental rights of individuals deprived of liberty but also undermines confidence in the criminal justice system and promotes a cycle of violence and criminality. It is essential for the government of Ecuador to assume its responsibility for protecting the human rights of those deprived of liberty and to take concrete measures to ensure their safety and well-being.Ítem Acceso Abierto La factibilidad de la implementación del transfemicidio y el travesticidio en la legislación ecuatoriana como crímenes de odio(Universidad Católica de Cuenca., 2024) Fernández de Córdova Ávila, Doménica Alejandra; Luzuriaga Andrade, Marco Elian; Monsalve Robalino, Bernardo Xavier; 0150046357; 0151041209This research addresses the feasibility of creating criminal offenses for travesticide and transfemicide as hate crimes from a gender perspective in Ecuador. This research is conducted due to the lack of information, legislation, and visibility regarding these crimes within the country. For the development of this article, an inductive-deductive approach was used to conduct interviews with members of the trans and travesty population and experts in gender-based violence. A synthetic method was employed to compare experiences worldwide. Finally, an analytical method was used to study the current legal framework in Ecuador with a general qualitative approach. This was done to gather the necessary perspectives for developing the research. The main findings were the need to implement specific criminal offenses for the protection of the rights of trans and travesty individuals within hate crimes, the need to create public policies for these individuals, and the improvement of public assistance systems so that these individuals can have access to and security regarding their fundamental rights.Ítem Acceso Abierto La vulneración al derecho de recurrir en el auto a llamamiento a juicio(Universidad Católica de Cuenca., 2025) Peña Panta , Víctor Andrés; Monsalve Robalino, Bernardo Xavier; 02100945738The Constitution of the Republic of Ecuador, in article 76, numeral seven, subsection m, enshrines the right to appeal rulings and resolutions in all proceedings in which decisions are made regarding an individual's rights. The Code of Criminal Procedure from the year 2000 explicitly recognized the right to appeal the order to stand trial. However, this right was suppressed through a reform of this legal framework. This exclusion remains in force in the Comprehensive Organic Criminal Code. The contradiction between the constitutional norm and criminal legislation raises questions about the compatibility of the exclusion of the appeal of the order to stand trial with constitutional standards. This inability to appeal is considered a restriction on the exercise of the right to appeal, the right to defense, the principle of progressivity, and the effective judicial protection. This study analyzes the violation of these constitutional rights, particularly the constitutional right to appeal, due to the exclusion of the appeal against the order to stand trial in the criminal procedural legal system. The research was carried out from a qualitative approach through a literature review, conceptual research to delve into the doctrinal definition of constitutional rights, and the Analytical Exegetical method, determining that in Ecuadorian criminal regulations, particularly concerning the exclusion of the appeal, constitutional guarantees are violated, specifically the right to appeal.Ítem Embargo Proyecto de Titulación embargado con fines de publicación de impacto.(Universidad Católica de Cuenca., 2025) Salas Aguilar, Mateo Santiago; Monsalve Robalino, Bernardo Xavier; 0105176838Ítem Acceso Abierto Visibilización de la violencia estructural por identidad de género a través del transfemicidio en Ecuador: Un análisis con derecho comparado(Universidad Católica de Cuenca., 2025) Sánchez Díaz, Vanessa Estefanía; Monsalve Robalino, Bernardo Xavier; 0107328445The research addresses the issue of transfemicide in the context of Argentina, Ecuador and Mexico; transfemicide is defined as the murder of trans women because of hatred towards their gender identity, reflecting the systematized structural violence that has contributed to cycles of discrimination and violence (Parrales,2023). In Ecuador, even with the progress of legal regulations on LGBTQI+ rights such as the decriminalization of homosexuality or equal marriage with the 2008 constitution, there are still high rates of violence against this community and it has worsened with the lack of criminalization and public policies to protect their rights, Argentina shows progress in terms of rights as it is characterized by the implementation of effective public policies that have contributed to the decrease in rates of structural violence against women, which has made this problem visible, however, it has shown challenges in its correct application. In the three countries there are common factors at the moment of making visible the statistics since poverty, social exclusion, lack of employment, poor access to adequate health systems, limited access to justice and sex work are the predominant factors, thefight against transmicide not only requires a typification in normative bodies but also the Visibilization of structural violence to form a collective conscience.
