THE TUTELA ACTION AS A PROCEDURE FOR DECLARATORY OR INJUNCTIVE RELIEF AND FOR LEGAL CERTAINTY

Abstract

The present investigation arises due to the lack of clarity in the law regarding recusal for unjustified delay, which raises questions about the violation of the principle of legal certainty. The recusal is a legal figure that allows the defendant to request the removal of the judge from a case if he/she is immersed in any of the grounds established by law. The rules on recusal are found in Article 22 of the COGEP, however, there is debate regarding the time period in which an unjustified delay is considered as grounds for recusal. On the other hand, Article 149 of the COFJ establishes the recusal for delay in the dispatch of the case, setting a term of 90 days plus one for every 100 pages. The lack of clarity in the rule could be a violation of the principle of Legal Certainty. To address the issue, a qualitative methodological approach will be used and methods such as analysis, synthesis, historical study and inductive approach will be applied. It was concluded that there is a violation of the principle of legal certainty, because the norm is not clear, however, the COFJ establishes in its Art. 149 that the delay in the dispatch of the case is also a cause for recusal.

Key words: Legal certainty, unjustified delay, recusal, delay in the dispatch of the case, principle of impartiality.