LA ACUSACIÓN O DENUNCIA MALICIOSA: ¿LESIÓN AL HONOR O A LA TUTELA JUDICIAL EFECTIVA?, DE HABER VULNERACIÓN A UN DERECHO, ¿DEBE RESPONDER LA VÍCTIMA?

The qualification of the complaint as malicious when the Prosecutor has requested to file a case is a legislative excess. This is because when the Ecuadorian legislator sanctions the malicious attitude of the complainant or the private accuser is referring to the false imputation of a crime. However, it does not sanction the conduct that threatens the right to honor, but the effective judicial protection. Therefore, it becomes a violation of the public exercise of the action. In an accusatory procedural system, the public exercise of the action is an exclusive attribution of the Prosecutor. So, while there is no formulation of charges, there is no affection to the right because the investigation is reserved.