LÍMITES CONSTITUCIONALES DEL SIGILO BANCARIO ANTE LA OBLIGACIÓN DE REPORTAR OPERACIONES SOSPECHOSAS

Abstract

This paper analyzes the constitutional limits of banking secrecy in light of the obligation to report suspicious transactions to Ecuador's Financial and Economic Analysis Unit within the Ecuadorian legal system. The objective is to determine whether this obligation constitutes a constitutionally legitimate restriction on banking secrecy, even though current legislation does not expressly authorize its lifting. The research follows a dogmatic-legal approach and relies on normative, jurisprudential, and doctrinal analysis, complemented by a comparative study of Peru and Colombia. The proportionality test required by the Organic Law on Jurisdictional Guarantees and Constitutional Control is applied to examine the suitability, necessity, and proportionality in the strict sense of the measure. The results show that the reporting obligation is substantively legitimate, since it satisfies all three subprinciples of the test, but carries a formal defect, since Article 354 of the Organic Monetary and Financial Code does not expressly include the Financial and Economic Analysis Unit among the exceptions to banking secrecy, which creates a legal reserve deficit. The paper concludes that the full legitimacy of the obligation depends on a legislative reform that closes this normative gap.