El principio de proporcionalidad en los delitos de contrabando aduanero

Abstract

The Constitution of the Republic of Ecuador in its Article 1 frames the national legal system within the guidelines of a Constitutional State of Rights and Justice and that it is necessary to make regulatory changes that consistently respond to the spirit of our Magna Carta. Likewise, Article 424 orders that the Constitution is the Supreme norm of the State, and that it prevails over any other of the legal system and therefore the norms and acts of the public power must maintain conformity with the constitutional provisions. Well, the express provision regarding the existence of a norm in the Comprehensive Organic Criminal Code, in which a sanctioning scale is established, for the offenders of customs smuggling crimes is vital and necessary, since it cannot be generalized, and establish a custodial sentence for all cases, so if an offender is found transporting merchandise without documenting its origin for a value of eleven unified basic wages of the worker in general, for example, which would be like four thousand four hundred US dollars, would receive the same custodial sentence as a person who in the same circumstances transports merchandise valued at one hundred unified basic wages of the worker in general, which would be forty thousand US dollars, since these values may vary according to the amount of merchandise to be transported, then it cannot be possible that exposed cases these two people receive the same sanction (three to five years of deprivation of liberty). That is why it is urgent and necessary, just as it was done with the crime of Fuel Smuggling, and with Drug Trafficking with the new reforms to the COIP, to establish an assessment scale where the quantification of the value of goods, in order to establish the corresponding penalty and thus guarantee the principle of proportionality between the offense committed and the penalty imposed. These refer to the circumstances and context of this type of infraction, that is, the quantity and the value in money of the merchandise that is transported and the taxes that are tried to evade the treasury. It is demonstrated, then, that more than a mandatory provision expressly made by the Constitution of the Republic, it is a legal, procedural and social necessity, which contributes to fulfilling the right to proportionality between the infraction and the sanction, as well as guaranteeing the principle of induvio pro reo, since our Magna Carta determines that in any process in which rights and obligations of any order are determined, the right to due process will be ensured, among which due proportionality between infractions and criminal sanctions will be established. , administrative or of another nature. That is why in the present work it is intended to determine as the main objective if in the convictions, the principle of proportionality is guaranteed in the imposition of custodial sentences to those responsible for the crime of customs smuggling in Ecuador, and as specific objectives It is intended to know which are the most common goods that enter our country clandestinely, as well as to establish in which periods of the year, more crimes of customs smuggling are registered in Ecuador and therefore determine, what is the amount of economic damage that the Customs smuggling causes in Ecuador and in this way verify how customs smuggling affects the economy of merchants in our country. For which the research presented is of a mixed type, where the qualitative and quantitative approach is combined. Based on the first, it is possible to study and understand the legal phenomenon as part of the social phenomenon and the characteristics that identify it; while, in the second aspect, the research is developed based on the analysis of the field through descriptive statistics. It is about identifying under what perspective the research is developed. In this case, the research presented is developed from the dialectical perspective, because the legal phenomena to be studied are explained by the constant normative, hermeneutic changes or any circumstance that affects the change or transformation of the state of things. Consequently, the issue of the application of the principle of proportionality in the application of custodial sentences in the sentences of customs smuggling crimes, allows us to suggest an important contribution to the strengthening of the constitutional guarantee of due process. After having developed the present investigative work, we can conclude that the proportionality in the judicial decisions by the justice operators, very little is applied, this due