El test de proporcionalidad en la sentencia de jubilación obligatoria
Year: 2025
Type: article
Abstract: The study analyzes Judgment No. 58-10-IN/21 of the Constitutional Court of Ecuador, which resolved two legal issues related to Article 81 of the LOSEP (Organic Law of Public Service): equality and non-discrimination in the right to work, and the principle of non-regression of rights. The challenged rule provides that public servants, upon turning 70 and meeting the legal requirements, must retire on a pension. The research reviews the ratio decidendi, the arguments, the social impact, and possible omissions, employing Grounded Theory and the exegetical-legal method. The Court demonstrated that the provision pursues a legitimate aim, passing the proportionality test—suitability, necessity, and proportionality in the strict sense—thereby advancing institutional renewal and economic protection in old age. However, the ruling is noted to have omitted an assessment of physical, social, and psychological aspects that could affect the dignity of those subjected to mandatory retirement. It is recommended that prior suitability evaluations be incorporated to avoid emotional harm and ensure a fairer and more legitimate application of the measure. The study concludes that mandatory retirement, under the conditions set forth, does not violate the Constitution, provided the balance between the protection of rights and regulatory restrictions is maintained.
DOI: 10.62452/hkjgns27
Institution: Universidad Bolivariana del Ecuador
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: diamond
OpenAlex ID: W4414372664