La aplicación de circunstancias atenuantes y agravantes no constitutivas en delitos sexuales según la resolución número 15-2024

Abstract

This study examined the ex officio application of non‑constitutive circumstances in the Ecuadorian criminal system, based on Resolution No. 15‑2024 of the National Court of Justice. Although the Organic Comprehensive Penal Code (COIP) treated these circumstances as modulators of the penalty, the judicial practice of activating them ex officio raised questions about respect for the dispositive, congruence, and impartiality principles, as well as the guarantees of due process. To this end, a qualitative documentary investigation was conducted, combining analysis of the resolution itself and the six “triple‑reiteration” sentences that underpin it with semi‑structured interviews of judges, prosecutors, defense attorneys, and academics specializing in criminal and procedural law. Using exegnetic, inductive, deductive, historical, and casuistic methods, the normative evolution was reconstructed from the COIP’s enactment in 2014 through the establishment of binding precedent—and compared with experiences in other Latin American systems. The main findings reveal that the National Court of Justice upheld judges’ exclusive authority to identify and apply these circumstances based on proven facts, even when they had not been invoked in the indictment. While this practice reinforces legal certainty, it also creates tensions with the dispositive principle and the right to defense.