Violation of the rights of the victim in terms of comprehensive reparation due to the application of the principle of opportunity

Abstract

In the present research work, we seek to analyze how the principle of opportunity has been applied and, in turn, how it is affected in the integral reparation of the victim, established as a fundamental right of constitutional rank, since this is violated when the principle is applied. of opportunity in the criminal sphere under two circumstances in crimes for which a custodial sentence of up to five years and in those culpable offenses in which the person being investigated or prosecuted suffers serious physical damage that makes it impossible for them to lead a normal life, of which in the present study will be addressed in the traffic crimes raised in the Azogues canton, because with the information that has been collected in the pertinent public institutions it is presumed that, in the Principle of opportunity, the victim is not compensated with regard to comprehensive reparation; Well, when the prosecutor abstains or desists from the investigation that has been started, in the procedure provided for in Art. 413 of the COIP, the judge declares the extinction of the exercise of criminal action. While with respect to the victim, the rule says: "The extinction of the exercise of criminal action for the reasons provided in this article, does not harm, limit or exclude the right of the victim to pursue through civil proceedings the recognition and the reparation of the damages derived from the act.” (National Assembly. COIP, 2014) Which is utopian first because comprehensive reparation is a right of constitutional rank and that must be imposed in a sentence of conviction as provided in articles 619 numeral 4, 621, 622 numeral 6 and 628 of the COIP, is in harmony or related to articles 1-2 second subparagraph-11 numeral 2 and 6- 77,78,78.1,-405,413 fourth subparagraph, 432 numeral 1, 519 numeral 2 and 4- 555,604 numeral 4 literal a) and article 628 of the Comprehensive Organic Criminal Code and punctually in the numeral 3 that says. The obligation to make reparation to the victim will take precedence over the fine, confiscation and other obligations of the criminally responsible person. (National Assembly. COIP, 2014) Where legal certainty remains, since it is eloquent that there is a state of uncertainty for the victim, what is more, there is a re-victimization by forcing the taxpayer of the crime to be compensated with the payment of comprehensive reparation in civil proceedings, which It implies a whole procedure and its respective instances and financial resources to hire a lawyer to assume the technical defense, something inadmissible and unheard of that, in addition, the integral reparation not only consists of an amount of money, but is a set of connatural rights to those contemplated in Article 78 of the Constitution of the Republic of Ecuador. It will be demonstrated how this right has been violated, for this methodologies will be used to establish general conclusions mainly in traffic crimes, which is what we will address as a priority issue, for this reason the proposal to prepare a document in which it is made a legal criticism regarding articles 412 and 413 of the Comprehensive Organic Criminal Code, of its shortcomings when this principle has been applied. For these reasons, this study will seek to develop a proposal to reach a legal solution to the legal problem that is generated.