El derecho al doble conforme en Ecuador frente a la laguna estructural: tensiones entre la Resolución 04-2022, la casación y la falta de incorporación legislativa

Abstract

Abstract: This research examines whether the transitional regime established to guarantee the right to a second review of a conviction (*doble conforme*) in Ecuador successfully addressed the structural gap identified by the Constitutional Court. A doctrinal-legal method and a qualitative analysis of case law were employed, focusing on rulings 1965-18-EP/21, 8-19-IN/21, 2289-23-EP/24, 897-23-EP/26, and 740-23-EP/26. Additionally, Resolutions 04-2022 and 13-2023, issued by the National Court of Justice, were analyzed. The study demonstrates that Resolution 04-2022 enabled the regulation of the right to a second review; however, Article 6 thereof gave rise to conflicting interpretations regarding the exhaustion of the cassation appeal. Resolution 13-2023 clarified the exhaustion of remedies by barring convicted persons from accessing cassation if they fail to timely file the special appeal for a second review. Nevertheless, the right to a second review continues to rest on resolutions issued by the National Court rather than on the Comprehensive Organic Penal Code. The study concludes that while case law has remedied violations of the right in question in specific instances, a structural solution requires legislative reform to regulate jurisdiction, procedure, effects, and the coordination between the two appeals.