Evidence in the constitutional process: a challenge for the effective protection of constitutional rights

Abstract

This article critically analyzes the case law of the Constitutional Court of Ecuador regarding the assessment of evidence in constitutional remedies, particularly the acción de protección (protection action). The aim is to identify advances, gaps, and contradictions in the Court’s criteria and to propose guidelines to strengthen effective judicial protection. The study examines constitutional principles applicable to evidence—such as immediacy, contradiction, freedom of evidence, dynamic burden of proof, and proportionality—as well as their development in the Organic Law of Jurisdictional Guarantees and Constitutional Control. Relevant judgments are reviewed, highlighting the Court’s recognition of freedom of evidence and the distinction between admission and evaluation, while also showing shortcomings in evidentiary reasoning, limited application of the dynamic burden, and the absence of differentiated standards of proof. These findings are contrasted with classical and contemporary procedural theory (Carnelutti, Devis Echandía, Taruffo, Ferrer Beltrán) and with the standards set by the Inter-American Court of Human Rights and the Colombian Constitutional Court. The analysis concludes that the lack of systematic doctrine in Ecuadorian case law generates risks of judicial discretion and legal uncertainty. In response, the article proposes normative and methodological improvements: adoption of tiered standards of proof, operationalization of the dynamic burden, tripartite evidentiary reasoning, and reinforced protocols for structural cases. The central thesis is that consolidating a robust evidentiary doctrine is essential to ensure effective and coherent constitutional justice.