Análisis jurídico del principio de proporcionalidad en la aplicación de la pena en el sistema penal ecuatoriano

Abstract

This paper contains an analysis of the application of the Principle of Proportionality in the Ecuadorian criminal system, since at present several crimes have been the subject of social controversy, but above all of legal controversy either because of the disproportionality in the penalties or because of their laxity. Hence, based on theoretical postulates of contemporary law, especially in the theory of criminal guarantee, whose main exponent is Luigi Ferrajoli, a review is made of the fundamental elements that should constitute the guiding axis for its application so that they contribute to that the criminal system fulfills its mission, which is to foster a restorative justice system. The work contains the analysis of five crimes: entry of prohibited items, illicit trafficking of substances cataloged for inspection, theft, wrongful death for traffic violations and homicide; whose results obtained confirm that the application of the Principle of Proportionality is not yet applied as stated by law and jurisprudence, making this principle a weakness within the Ecuadorian criminal system as the foundations with which the penalty is defined from a Restorative justice approach are not properly motivated and are not based on the sub principles of suitability, necessity and proportionality in themselves, but rather are the result of logical-mathematical reasoning. Therefore, it is considered that in the Ecuadorian criminal system it is necessary that the sentences include sufficient, clear and precise motivations on the determination of the penalty, so that they do not leave any room for doubt about fairness in the administration of justice.