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Penal Reform: Report of the first debate.


CONTEXT OF REFORM

The legislature has dealt with 15 criminal law reforms over the past five years:

- Law Reform Criminal Code the offenses of sexual exploitation of minors (RO No. 45, June 23, 2005).
- Criminal Code Reform Act, which criminalizes so-called "express kidnapping" (RO No. 154, November 28, 2005).

- Law Amending the Code of Execution of Punishment and Rehabilitation Social and Criminal Procedure (Official Gazette No. 227 of March 13, 2006).

- Law Amending the Penal Code and Law on the Manufacture, Import, Export, Marketing and Possession of Firearms, Ammunition, Explosives and Accessories (RO No. 231 of March 17, 2006).

- Law Amending the Law on the Judiciary and Criminal Procedure Code (Official Gazette No. 238 of March 28, 2006).

- Article unnumbered Interpretation Act inserted by section 9 of the Act amending the Penal Code, published in Official Gazette No. 45 of June 23, 2005 (ROS No. 350, September 6, 2006).

- Criminal Code Reform Act (Official Gazette No. 412 of December 7, 2006).

- Criminal Code Reform Act (ROS No. 427 of December 29, 2006).

- Law Amending the Hydrocarbon Law and the Penal Code (ROS No. 170 of September 14, 2007).

- Interpretation Act Article 169 of the Criminal Procedure Code (ROS 2, No. 194 of October 19, 2007);

- Law Amending the Code of Criminal Procedure (ROS No. 203, November 1, 2007).
- Law Reform the Code of Execution of Sentences and Criminal Code for the transformation of social rehabilitation system (ROS 2 No. 393 of July 31, 2008).

- Law Amending the Penal Procedure Code and Penal Code (ROS No. 555 of March 24, 2009).

- Criminal Code Reform Act, which defines the crime of genocide and ethnocide (ROS No. 578 of April 27, 2009).

- Law Amending the Penal Code and Criminal Procedure Code (ROS No. 160 of March 29, 2010).

- Criminal Code Reform Act for the definition of crimes in the military and police (ROS No. 196 of May 19, 2010).

The Judiciary Committee wants to express its firm conviction about the reduction in crime rates is not an automatic consequence, directly or legal reform. While the reforms may affect, it is necessary to take into account that such laws are applied by and judges, prosecutors, defenders, police and even attorneys and lawyers, and if they do not fully comply with its functions, the justice system is destined to collapse.

The

data show that the majority of complaints entered in 2009 were dismissed by the Attorney General, this is 139,780. This opens a gap between the number of complaints entered and the number of convictions.

In the report by Dr. Luis Pásara to Projusticia, judicial production was analyzed in the period covering the years 2002 to 2008, who entered the criminal court cases 40,327 , of which 23,006 were resolved, corresponding to a lack of resolution or accumulation of more than 17,231 cases. Significantly, the largest number of "resolutions" occur due to the dismissal of the cases, ie the prosecutor decides not to continue with the process. Therefore, in seven years in the criminal courts decided only slightly more than half of the cases filed.

also called for the criminal courts in the province of Guayas, in the period from January to May of 2009 to 1814 hearings, however, of which there were no 1507, making a total of 87 % failed hearing. Of the 1507 hearings failed, 1049 of them were not made by the responsibility of the Prosecutor (69.6%), and the remaining 30.4% was attributable to other causes. Even

, he UN special executions, Professor Philip Alston, in a press release of July 15, 2010, said the Ecuadorian justice system is highly dysfunctional. "This system consists of a police force that rarely makes a serious investigation and substantiation of the killings, a tax research service seems more concerned with public relations for the conviction of perpetrators of serious crimes and judicial system has been widely condemned by nearly maladministration inefficiency. These problems are compounded by allegations of corruption in most levels ".

Although already approved many changes to the reform and restructuring of the administration of justice, both through penal reform as the issue of the new Code of Judicial Function, several have not been implemented because the lack of action not only of judges, police and prosecutors, but also the Council of the Judiciary.

is, the proper functioning of the judicial system is independent of the National Assembly, each of those involved to justice must take its responsibility for the malfunctioning of the system, and above all work to solve this problem .

After this clarification, then analyzed the subjects of this reform:

1. Criminal Code Amendments



Make use of children and adolescents to commit the offense

The odds that an adult person is behind the actions of a child or adolescent who commits a wrongful act, are high. Although in this case the adult could be prosecuted como autor intelectual de la infracción (figura regulada ya por el Código Penal), la Comisión de Justicia ha considerado adecuado, además, incorporar esta circunstancia como uno de los agravantes de la infracción, por lo que ha reformado el artículo 30 del Código Penal.

Igualmente, en el artículo 162 relativo al delito de portar armas de uso militar o policial sin el permiso necesario, se ha incorporado un inciso por medio del cual se sanciona con severidad a quien proporcione, venda o facilite un arma de fuego a un niño, niña o adolescente.

Finalmente, se cambió Article on incitement to commit a crime, for the person who incites a child or adolescent to commit a crime is punished by three to six years of prison sentence, depending on the crime.

Hate Crimes

By law published in the Official Gazette Supplement No. 555 of 24 March 2009, the National Assembly introduced an unnumbered chapter entitled "Of Crimes Hate ", in Title II of Book II of the Penal Code, which were included as violations conduct inciting to hatred, contempt or violence or entity against a person or persons for various categories of discrimination.

The Commission has considered expanding the circumstances that can be understood as a hate crime, to conform to the Constitution, in particular paragraph 2 of Article 11, and those rules have been reformed for the record grounds of ethnicity, place of birth, age, sex, gender identity, cultural identity, marital status, language, religion, ideology, political affiliation, criminal record, socio-economic status, immigration status, sexual orientation, health status, carry HIV, disability and difference physics.

prevarication

The Commission accepted the suggestion of Assemblyman Leonardo Viteri to clarify the article of prevarication, to leave no doubt that they can also commit to prosecutors, who will be punished a sentence of one to five years in prison if self-interest, affection or disaffection to any person or to the detriment of the public cause or a particular issue resolved or not tax statement or rule against special law.

Marketing illicit fuel hydrocarbon derivatives

In the chapter containing offenses relating to illicit marketing of hydrocarbon fuels, including liquefied petroleum gas and biofuels, the Commission has welcomed the Executive's proposal to increase penalties. Thus, for the storage, transportation and marketing without proper authorization, imprisonment for one to three years, has been replaced by a sentence of three to six years prison sentence.

In the crime of tampering with oil derivatives, the penalty of two to three years of imprisonment is increased to three to six years prison sentence. For the misuse of derivatives of hydrocarbons, the penalty was one year in prison, was replaced by three years in prison. Finally, we reformed the crime of stay and suspension unjustified public service outlets or distribution of fuel, so you get a fine of one hundred to five hundred unified basic wage for workers in general, and sentence of one to three years in prison.

Conspiracy

been contemplated, in the chapter on racketeering, punishment for those who, without being included in the situations described in these rules, participate in illegal organizations or associations, which shall be punished with imprisonment from six months to three years.

Environment
Among the crimes against the environment, the Commission has incorporated a standard for both the machinery and equipment which have been used in illegal mining activities, mining wood, natural resource exploitation or illegal trade, are subject to special confiscation, and the owners are subject to a fine of five hundred to a thousand unified basic wage and imprisonment of one to three years.
semi-submersible Submersible vehicles

The Justice Committee accepted the proposal by Assemblyman Mauro Andino incorporated within the Title relating to offenses against public safety, a chapter regulating the use of Submerged or partially submerged. As such, the person who without lawful authority finances, builds, owns, traffic, or use one of these vehicles have more ordinary imprisonment from eight to twelve years. If the vehicle is used for human trafficking, narcotics, weapons, explosives, radioactive substances, the penalty increases to imprisonment more extraordinary twelve to sixteen.

sicariato

Several of the proposed reform bills referred to the issue of murder for hire or reward, commonly known as "assassins." They all agreed on the need to more severely penalize such behavior, but differed in the mechanism for doing so. Thus, proposals suggested establish as a separate article, while for others, the reform should be to Article of the murder.

The Justice held, first, that the behavior known as "assassins" was already defined in article 450 of the Penal Code which provides: "It's murder and is punishable with rigorous imprisonment Special sixteen to twenty five years, homicide is committed with any of the following circumstances: (...) 2nd .- By price or promise of remuneration. " However, it also agreed with the proposals in the fact that special attention should be given to these events, due to its increase and generate alarm among the citizens.

As such, understanding that the killings is an aggravated form of murder, decided to amend Article 450 of the Penal Code so that when the murder was committed by a gunman, the penalty is greater: twenty-five twenty-eight years rigorous imprisonment special (unlike the range of 16 to 25 now in force). Also contemplated under the same penalty to cases in which the adult Valiere one or more children or adolescents in the commission of murder.

Importantly, explicitly, the bill requires that in these cases not only to punish those who carried the act, but also those who offered, provided or provided the means of payment or reward.

also penalize those cases in which acts of preparation, organization and planning are effected in another country. It was decided that the prescription of these crimes be twenty years.

Incest

Article 512 of the Penal Code, the Justice added as an aggravating circumstance that the victim is a relative within the fourth degree consanguinity or second affinity with the aggressor.

regret the error committed by the Ministry of Justice in its draft reform, which suggested to include an article in which incest is only when the sexual crime is committed against siblings or children between 14 and 18 years of age, and giving exactly the same punishment as any other rape case of a person over 14 (twelve to sixteen years' rigorous imprisonment extraordinary).

gambling dens

Under the reforms made to the Money Laundering Act to Suppress Assets, creating expedited procedures to combat this crime and given a set of important powers to the Financial Analysis Unit, the Commission decided to raise the penalties for those who establish homes or table games without permission from the respective authority to to combat illegal gambling circuits underground.

Increased rigorous imprisonment special

The Commission has increased the range of duration of imprisonment more special, now is from sixteen to twenty-five, and suggests the establishment of sixteen and twenty-eight.

Accumulation of penalties

was decided to reform the article on the occurrence of violations, to simplify their rules and their application accordingly. Consequently, where there is more crimes punishable by imprisonment or detention and imprisonment, the penalties will be cumulative to a maximum of thirty-five years, if attended by a number of crimes punishable by imprisonment, the accumulation will be up to a maximum of fifteen years, and finally , special confiscation penalties under various concurrent offenses, are always cumulative.

For the above consideration, we decided to accept the proposals by Assemblyman Andrés Páez, President of the Republic and other proponents who agreed on the issue.


Vagrants and beggars

Being a criminal type anachronistic and obsolete, the Commission accepted the proposal of the First of Criminal Judge of Pichincha to eliminate the penalty related articles of vagrants and beggars.

Usury

The Commission has made an important reform for usury, to clarify that the interest credit granted exceed the legally permitted, he incurs the crime, and does not require that its activity is normal (as required by the current offense .) It also increased the sentence, which was imprisonment for six months to two years and a fine of sixteen and three hundred and eleven U.S. dollars, a prison sentence of three to six years and a fine of one hundred to five hundred unified basic wage.

also established expressly, that in these cases will be ordered to be returned to the victim who has paid all illegally and what he has mortgaged or pledged to pay its debt.

Use of substances such as scopolamine

Welcoming the proposal made by Assemblyman Vincent Taiano, the Commission added the crime of theft, the fact of running the offense by using substances such as "scopolamine", drugs, psychotropic substances, alkaloids or otherwise, to submit to the victim or leave in a state of drowsiness, unconsciousness, or helplessness, or to force in this state to perform acts which, with consciousness and will would not have executed. The penalty for this will conduct a prison sentence of six to nine years.

2. Amendments to the Criminal Procedure Code



underreporting

In accordance with Article 33 of the Code of Criminal Procedure, the exercise of public action is solely for the tax, without prior complaint. To clarify the role of the prosecutor, added that he may not explicitly allege lack of complaint or accusation failure to exercise particular government action, and included that this procedural requirement does not constitute a prior report of the Comptroller General of the State or any other agency control over evidence of criminal responsibility.

Powers of the Judicial Police

the suggestion expressed by the representatives of the Judicial Police, has expanded its investigative powers to enable them to perform their jobs more efficiently.

conditional suspension of proceedings

conducted a reform to article on the conditional suspension of proceedings, to operate with the consent of the victim and not the crimes that are punishable by imprisonment. This decision was taken because the figure is being used improperly.

international arrest warrant

The Commission accepted the suggestion of Assemblyman Andrés Páez cover the case of persons who, being in the Ecuadorian territory, have committed crimes abroad and are required by channels of the International Criminal Police Organization, in order to facilitate its delivery to the appropriate authorities.

Investigation of crimes punishable by imprisonment
has accepted the proposal of Assemblyman Mauro Andino to incorporate the figures of the undercover agent, leniency and delivery, in order to improve the investigation of crimes punishable by imprisonment.


Injunction

has been added as a precautionary measure actual closure of the premises or establishment used for criminal activity.

Expiration of custody

Added a provision for the judge, when the expiration occurs custody, provided that the defendant is obligatorily present periodically before him and prohibited from leaving the country. It also added the possibility that, when it expires custody, the judge or justice of the criminal guarantees provided the use of satellite location devices and global geo-positioning to determine its exact location.

Review of precautionary measures

The Commission decided to improve the wording of article on the review of interim measures, to leave no doubt that preventive detention can not be replaced by a personal protective measure for crimes against public administration, crimes of which is the death of one or more persons, sexual offenses , hatred, punishable by a term of imprisonment or if there is recurrence.

Sweepstakes judge or justice of the criminal guarantees instruction control

Article 217, has accepted the proposal of the Prosecutor to explicitly include the draw to determine the jurisdiction of the judge or justice of criminal safeguards must intervene in the control of the instruction takes place within a maximum of two days from the date of receipt of the request of the prosecutor.

Deadline to resolve the motion to vacate

has been included in Article 336, a clause ordering the Provincial Court room who knows the motion to vacate, it resolved later than twenty days, and if he fails unjustifiably deadline, the judges were punished for serious foul under the Code of Judicial Function.

Appeal returned effect

The Commission added that the appeal of judgments rendered in streamlined, abbreviated process, and those who express confirm guilt or innocence of the accused, was granted devolution effect.

Simplified procedure

was set as competent to resolve such security procedures to judge criminal court instead of criminal safeguards. It has been clarified, too, the nature of the procedure, and saved some difficulties regarding the right to defense, under the short preparation time, well as limited the powers of the Prosecutor regarding the amount of the sentence.

Foreign inmates

have included a provision that any foreign person deprived of liberty who applies to be transferred to their country of nationality in accordance with treaties or international conventions or under the principle of reciprocity, request the court that rendered the sentence, the waiver of fines imposed sentence, when the victim is only the State, or has been fully satisfied civil damages set explicitly in the statement on behalf of others aggrieved.

3. Amendments to the Code of Childhood and Adolescence .

more severe punishment for adolescents who commit acts against the law

addition to more severely punish adults who use children and adolescents, the Commission has considered it necessary to send a more severe punishment of young offenders who commit serious crimes. While adolescents are, by Constitutional mandate, be treated differently from adults, too is true that they must have a consequence for committing a serious offense. As such, it has reformed the Code of Childhood and Adolescence to increase the penalty for institutional placement in the commission of offenses in ordinary criminal law is punishable by imprisonment.

has also been arranged for those twenty-one years in detention centers must be moved immediately, to end with the fullness of time measurement in rehabilitation centers for Social.

4. Reforms the Code of Execution of Sentences

made reform of the Code of Execution of Punishment has been done in the sense of possibility where there is an executed sentence against foreign citizens, the enforcement penalty in the country of origin or nationality of the accused, in accordance with existing international conventions.

Also in the article concerning the criteria for the granting of rebates, it is provided that they operate for up to a maximum of 30% of the sentence the person, and not granted crimes of kidnapping, murder, sex crimes, trafficking, crimes against public administration or for crimes of genocide, crimes against humanity, war of aggression, determined by the Rome Statute of the International Criminal Court.

also devoted explicitly that it will not be any reduction in recidivism, punishment has been received at-large, or when the crime was committed against a child or adolescent .

5. Other considerations

Sanctions

judges and prosecutors who are responsible for the revocation of custody and other related offenses

Some projects suggested discipline judges and prosecutors who are responsible for allowing the expiration of the remand. This penalty exists and is in effect for more than a year in the Code of Judicial Function. The Justice Commission has proposed, including, increasing the penalty through the reform of the Civil Code of Judicial, whose report was the first debate and presented to the President of the National Assembly.

Proposal on mandatory detention

The Commission considers it necessary to refer to this proposal, it noted that the revocation of pretrial detention would be one of the causes of impunity, and this in In turn, because of high crime rates. In this regard, it suggested creating a new form of imprisonment, to be called "mandatory detention" (draft Assemblywoman Cynthia Viteri et al.)

fit regard the following comments:

As suggested in a previous report on this same proposal, in the closed prison census to July 2008 revealed that about 90% of applications for detention required by tax agents do not result in convictions . Additionally, Ecuador has been sentenced in the Court of Human Rights abuse precisely, extend or renegotiate improperly, through its judicial apparatus, the reasonable period of preventive detention, such as in the famous case of 7 Tibi September 2004, when Ecuador was ordered to pay nearly four hundred thousand euros (paragraphs 111-113).

Of the data that tells the Commission, the expiration of custody does not operate in all districts in the same way. As in many provinces the year provided it is long enough so that the system produces a sentence. The problem is not so much the norm, but its application, the answers should be sought in the efficiency of operators in the number of judgeships in relation to population and conflict, or other factors that could cause a high number of cases of lapse .

The Committee notices that the judges have not applied as provided in Article 169 of the Criminal Procedure Code and, therefore, have been computed for the revocation of custody incidents also raised by the defendants deliberately to allow expires.

Regardless of what denomination it is believed, any form of deprivation of liberty before the existence of a sentence is called preventive detention and must submit to the constitutional provision that says a maximum of one year its application as a precautionary measure. The three years proposed in the current proposal would provide explicit violation of the Constitution.

The assembly Andres Paez, Vicente Taiano and Henry Cuji believe that the current paragraph 3 and Article 232 requires the court to issue precautionary measures therefore should be reminded it is obliged to issue preventive detention dictates the order for trial and no other precautionary measures, in no case exceed imprisonment for one year from the effective date of arrest.

In conclusion, the Constitution now in force is clear regarding the application of this injunction, so that the Commission considers relevant the proposed reform.

It should also be noted that Assemblywoman Cynthia Viteri, who first presented the "Draft Law Reform in Criminal Matters" which included this figure, on December 3, 2010 submitted to the Commission of Justice "explanatory scope" to it, noting that "the legal concept of mandatory detention, the draft proposed by popular initiative, has no time limits, and will be issued only at the stage of juice to ensure the presence of the accused at the hearing. The Criminal Court for each case is that is subjected to a period of three months for sentencing, on pain of dismissal. " This differs substantially from the initial draft, which envisaged that "The criminal court safeguards to ensure the defendant at the trial stage, when mandatory detention order is issued a summons to court ... Mandatory detention will remain in effect while the criminal court sentencing and may not be up to three years after the order enforceable for trial. Enforceable once the order for trial, the court of competent criminal guarantees shall adjudicate in a period not exceeding one hundred and eighty days ... "