Procedural restrictions for the performance of advance testimony in Ecuadorian criminal proceedings

Abstract

The main objective of this study is to develop a critical report identifying procedural restrictions, both theoretical and normative, as practices, which confront the concept of prior testimony in Ecuadorian criminal proceedings and lead to violations of due process, the effect on its evidentiary effectiveness and the rights of the parties to the proceedings. This research is directed in a quantitative approach, with a descriptive scope, while the theoretical methods applied are analytical-synthetic and inductive-deductive. The result obtained is that the legal and practical restrictions surrounding the procedural character of advance testimony in the criminal law system, are embedded in the justification of the request, notification of the parties, guarantee of the right to defence, presence of parties to proceedings, custody of evidence, judicial evaluation, recording and preservation of evidence and judicial assessment. Concluding that they must establish clear protocols for the execution of the same, ensuring the confidentiality of the advance declaration, allowing its receipt when it has been notified to the parties and the person under investigation or prosecuted has not concurred. In addition, it should be allowed to be obtained during criminal proceedings where its relevance is justified or there is a risk of being lost.