La inversión de la carga de la prueba en materia ambiental, el rol de los sujetos procesales en la acción judicial por daños ambientales

Abstract

The general objective of this research work is to analyze and understand the legal institution of the Investment of the burden of proof of the inexistence of potential or real environmental damage, as part of the new Ecuadorian environmental constitutionalism; Applying the analytical method, we start from the doctrinal analysis of the judicial evidence as the point of origin of the evidentiary burden, from the latter its theory, its characteristics and the point of imbalance between the procedural parties as a cause of the evidentiary displacement is analyzed; later, the exegetical method of the acts of the Montecristi constituent assembly is applied, observing the factors, reasons and positions that involved this procedural institution in debate, in order to determine the intentions of the constituent for its final recognition as a constitutional guarantee; Consequently, the theoretical part of environmental damage is developed, and the foundations that the doctrine gives us of this institution are analyzed, such as the precautionary principle and objective or risk liability. With the main results, a concept of the study center institution is postulated, the spirit contained in this norm in the 2008 Constitution is also determined, and the performance of the procedural subjects is described by virtue of the elements analyzed, emphasizing the constitutional actions as the ideal means to enforce environmental rights, and in effect, the execution of this procedural guarantee.