Estudio Crítico de los delitos de Desobediencia, Ataque o Resistencia y Rebelión previstos en el COIP frente al Derecho de Resistencia

Abstract

The right of resistance and its incorporation into article 98 of the Ecuadorian constitution of 2008, has raised controversy and many questions given the ambiguous and excessive nature in which it appears conceived. Its acceptance as an individual and collective right, that has state protection, would imply the existence of a normative or jurisprudential development that defines it, in terms of its real and effective scope. However, there is a gap in terms of the instruments that allow us to unravel its meaning and its typology. This work analyzes constant tensions that political power and its modern expressions, such as ideological and economic power, generate in constitutional democracies; in which, majority rule enters into crisis when there are dissenting voices that question it. When institutional channels fail, social protest arises in different ways, like violent track closure or peaceful resistance. Power reacts with zero-tolerance policies, and with norms that criminalize social protest. This study contains a critical analysis of some crimes, such as attack or resistance, rebellion, and sabotage, which, in reality, nullify the right to resist. The use of criminal law of the enemy, certainly present in Ecuadorian criminal code, which integrates sections of the author criminal law and the call of “Third Speed”, questions several principles of the Guarantee that Ferrajoli defends. The above is reflected in the "Saraguro Case" which confirms the chimera of the right of resistance, closer to the utopia of a generous constituent, although disarmed before the politically correct. Finally, judicial activism present in the final judgment opens a new horizon for this right.