INEFICACIA DE LAS MEDIDAS CAUTELARES AUTÓNOMAS A CAUSA DEL PRECEDENTE JURISPRUDENCIAL CONTENIDO EN LA SENTENCIA 61 12 IS/19 DICTADA POR LA CORTE CONSTITUCIONAL

Abstract

The purpose of the academic paper was to determine whether the jurisprudential precedent of the Constitutional Court, which establishes that precautionary measures cannot be subject to non-compliance action, violates the effective judicial protection of the beneficiaries of the precautionary measures, since that decision has become a controversial issue among the magistrates, as there are those who believe that the Court should depart from it. For the development of this article, a qualitative methodology was implemented, by virtue of which rulings of the Constitutional Court were compiled and analyzed, from a deductive perspective, the problems that arise as a result of the precedent in question and its impact on the enforceability of autonomous precautionary measures. This, with the purpose of providing possible solutions to the legal problem presented in this article. Consequently, it was found that the precedent in question arose from a literal and restrictive interpretation of constitutional rights. This, despite the criticism generated by constitutional judges, who have repeatedly expressed —through their dissenting votes— their disagreement in this regard because they consider that it violates the constitutional rights of the beneficiaries of the precautionary measures. Thus, the authors of this academic article considered that the aforementioned precedent, in effect, violates the effective judicial protection of the beneficiaries of the precautionary measures, who may find serious limitations in enforcing said constitutional decision.