AMBIGÜEDADES EN LA APLICACIÓN DE LA JUSTICIA INDÍGENA DENTRO DEL JUZGAMIENTO DE DELITOS Y CONTRAVENCIONES

Abstract

The 2008 Constitution of the Republic of Ecuador (CRE) consolidated legal pluralism as a recognition of the rights of indigenous peoples and nationalities. It recognized the coexistence of state law and indigenous law, with a duty of coordination between both systems, although indigenous justice is subject to the constitutional control provided for in Article 171 of the CRE and to respect for the human rights recognized in international instruments. Through a normative, jurisprudential and doctrinal analysis, this paper examines the ambiguities that arise in the application of indigenous justice regarding conduct that could amount to crimes or misdemeanors, considering that its logic does not respond to ordinary criminal typification but rather to the restoration of the community's social peace. Its territorial scope is defined by cultural and ancestral ties, and a lack of definition persists in its territorial and material scope, which allows conduct that is serious under state criminal law to receive different sanctions under indigenous law. It concludes that the tension between indigenous autonomy and constitutional control is the main challenge of the Ecuadorian model.