La extensiva interpretación del tipo penal de tráfico de sustancias catalogadas sujetas a fiscalización: el caso N° 18282-2018-00726

The extensive interpretation of the criminal nature of trafficking in scheduled substances subject to control: The case N° 18282-2018-00726

Since the entry into force of the National Constitution of the Republic of Ecuador in 2008, the Legislative Branch has been urged to adopt the infra-constitutional regulations following the parameters established in the constitution and international treaties. Then, the state of the question on the criminalization of drugs was subject to a positive reassessment, and this would be reflected in the publication of the Organic Comprehensive Criminal Code (from now on, COIP) in 2014. In this norm, a different treatment is given to the issue of drugs concerning how it was done in the ancient Law of Narcotic and Psychotropic Substances.

Despite the paradigm shift in the COIP, at the jurisdictional level, an erroneous and extensive interpretation has been made of the type of illicit drug trafficking embodied in art. 220, since individuals have been criminalized for the sole possession of non-trafficking drugs when that conduct in light of any interpretation turns out to be atypical. Therefore, we would be facing a severe violation of human rights of institutional origin.

In this sense and to give foundation to the assertion, in the development of the work, the following will be analyzed: constitutional norm and international conventions; Narcotic and Psychotropic Substances Law as a legislative antecedent; the COIP in its pertinent articles; a study will be carried out from the light of the legal-criminal dogmatics on the criminal type of illicit traffic of substances subject to the control of art. 220; Also, an executed condemnatory sentence will be analyzed, which will confirm the proposed thesis; and, finally, advancing the conclusion, the erroneous and unconstitutional judicial interpretation of the type stated will be corroborated, which will account for the enormous crisis in the administration of criminal justice.

During 2007, as a result of the maximum expression of the democratic will of a State, a Constituent Assembly was installed in the Montecristi canton, and it was there that the Constitution of the Republic of Ecuador (from now on CRE) was signed, which would be published in 2008. Due to its content, the constitution has been praised by the international community on repeated occasions; prima facie it is coherent, guarantor, inclusive and was also the first to endow nature with an ecocentric vision. Therefore, we would say that we are facing a norm of the highest hierarchy, which allows the free development of personality and recognizes rights and guarantees to any human being. Of course, a constitution with the described characteristics, in no way, could stigmatize and criminalize subjects who consume prohibited drugs, but rather, would urge that they are treated as individuals who require state aid for being victims of addiction.

In this sense, from article 364 of the CRE (2008) it follows:

Addictions are a public health problem. The State will be responsible for developing coordinated information, prevention, and control programs for the consumption of alcohol, tobacco, and narcotic and psychotropic substances; as well as offering treatment and rehabilitation to occasional, habitual and problematic consumers. In no case will their criminalization be permitted, or their constitutional rights be violated. The State will control and regulate the advertising of alcohol and tobacco.

In addition to this, Ecuador defines itself according to the first article of the CRE as a constitutional State of Rights and Justice, and this can only mean that the entire infraconstitutional legal system must conform to the principles, provisions and respect for established rights by the first letter. For this reason, article 424 states: “The Constitution is the supreme norm and prevails over any other of the legal system. The norms and acts of the public power must maintain conformity with the constitutional provisions; otherwise, they will lack legal effectiveness”. (CRE, 2008, art. 424)

Despite all that has been said, it is well known to those with legal training that a legislative adaptation of this nature to an incoming Constitution requires a significant period in order to achieve this objective. In criminal matters, only in 2014, the legislator published a new code that was called to meet constitutional expectations; and, consequently, the Law on Narcotic and Psychotropic Substances that regulated illicit behaviour linked to the drug problem was repealed, and the COIP assumed said power.

It should be noted that, regarding the COIP, the Ecuadorian legislator followed the position that criminal law must be aimed at strict protection of legal assets, and this can be corroborated in article 22, which refers to criminally relevant conduct, and also in article 29 inherent in unlawfulness (COIP, 2014); which, for the conception of the undersigned, is a correct and majority position in the doctrine despite all the objections that could be made to it. Consequently, in Ecuadorian criminal law, only conduct that endangers or injures protected legal assets is typified and criminalized.

In keeping with what has been stated, in the Third Chapter of the COIP (2014) that refers to the “Crimes Against the Rights of Good Living”, it typifies in its Third Section the “Crimes Against the Right to Health”. Therefore, health will be the legal asset protected by criminal law in illicit acts related to psychotropic and narcotic drugs. About the right to health, the constitutional norm includes it in articles 32 and 359 and describes them as follows:

Health is a right guaranteed by the State, whose realization is linked to the exercise of other rights, among them the right to water, food, education, physical culture, work, social security, healthy environments and others that they support good living.

The State will guarantee this right through economic, social, cultural, educational and environmental policies; and permanent, timely and without exclusion access to programs, actions and services for the promotion and comprehensive care of health, sexual health and reproductive health. The provision of health services will be governed by the principles of equity, universality, solidarity, interculturality, quality, efficiency, effectiveness, precaution and bioethics, with a gender and generational focus. (CRE, 2008, art. 32)

The national health system will comprise the institutions, programs, policies, resources, actions and actors in health; it will cover all dimensions of the right to health; it will guarantee promotion, prevention, recovery and rehabilitation at all levels; and will promote citizen participation and social control. (CRE, 2008, art. 359)

That said, from a look at international law, Ecuador has acceded to the 1961 Single Convention on Narcotic Drugs, which in turn was amended by the 1972 Protocol signed by the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. In this regard, in Article 33 of the 1961 Single Convention on Narcotic Drugs (1988), it has been stated that the parties will only allow the possession of narcotic drugs with legal authorization; and, among other things, the following has been prescribed:

FIGHT AGAINST ILLICIT TRAFFIC. - Taking due account of their constitutional, legal and administrative regimes, the Parties:

a) They will ensure coordination of preventive and repressive action against illicit trafficking on the national level; for this, they may designate an appropriate service to be in charge of said coordination;

b) Help each other in the fight against illicit drug trafficking;

c) Cooperate closely with each other and with the competent international organizations of which they are members to maintain a coordinated fight against

illicit trafficking;

d) They shall ensure that the international cooperation of the appropriate services is carried out expeditiously;

e) Take care that, when the documents for judicial action are transmitted from one country to another, the transmission is carried out in an expedited manner to the bodies designated by the Parties; This requirement does not prejudge the right of a Party to require that the auto parts be sent to it through diplomatic channels;

f) Provide, if they deem it appropriate, in addition to the information provided in article 18, to the Board and the Commission through the Secretary-General, the information regarding illicit drug activities within their borders, including the reference to cultivation, illicit production, manufacture, trafficking and use of narcotic drugs.

g) To the extent possible, they will provide the information referred to in the previous section in the manner and on the date that the Board requests; If requested by a Party, the Board may offer its advice in its task of providing information and trying to reduce illicit drug activities within the Party’s borders. (Single Convention on Narcotic Drugs, 1961, art. 35)

MEASURES AGAINST THE IMPROPER USE OF NARCOTIC DRUGS:

1. The Parties shall pay special attention to the prevention of drug abuse and the prompt identification, treatment, education, post-treatment, rehabilitation and social rehabilitation of the affected persons, shall take all possible measures to that end and coordinate their efforts in that regard.

2. The Parties shall promote, to the extent possible, the training of personnel for the treatment, post-treatment, rehabilitation and social rehabilitation of those who abuse drugs.

3. The Parties shall endeavour to assist persons whose work so requires so that they may become aware of the problems of drug abuse and its prevention and shall also promote such knowledge among the general public if there is a danger that it will spread. the abuse of narcotic drugs. (Single Convention on Narcotic Drugs, 1961, art. 38)

Concerning the three cited articles of the Single Convention on Narcotic Drugs, it is worth making a few brief observations that are highly pertinent: article 33, referring to the possession, ordered to define any type of possession that does not have prior authorization and that is why, in Ecuador, the repealed Law on Narcotic and Psychotropic Substances did so broadly and expressly. However, it has already been said that the legal assessment of drug possession behaviour fluctuated as a result of the entry into force of the COIP, due to its adaptation to the 2008 CRE criteria.

Regarding Article 35, entitled “Fight Against Illicit Traffic”, it is too essential to highlight the express recognition that the convention makes to the superiority of the constitutional norm, internal laws and regulations. Besides, the article shows a clear intention to combat illicit trafficking, which in the eyes of the writer turns out to be the real conflict and that is why, in article 38, which refers to the measures to be taken for the improper use of narcotic drugs, the intention of treating, rehabilitating and socially readapting the affected people is embodied, because it is understood - rightly - that the misuse does not make the individual a criminal and instead, is a vulnerable subject that requires special attention due to their addiction.

However, regarding the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) the following has been agreed:

CRIMES AND PENALTIES

1. Each of the Parties shall adopt the measures that are necessary to define as criminal offences in its domestic law when they are intentionally committed:

i) The production, manufacture, extraction, preparation, offer, offer for sale, distribution, sale, delivery under any conditions, brokerage, shipping, transit shipment, transportation, import or export of any narcotic drug or psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention;

(ii) The cultivation of opium poppy, coca bush, or cannabis plant to produce narcotic drugs contrary to the provisions of the 1961 Convention and the 1961 Convention as amended;

iii) Possession or acquisition of any narcotic drug or psychotropic substance in order to carry out any of the activities listed in section i) above;

iv) The manufacture, transportation or distribution of equipment, materials or substances listed by Table I and Table II, knowing that they will be used in the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances or for such purposes;

v) The organization, management or financing of any of the crimes listed in the preceding sections i), ii), iii) or iv);

2. Subject to its constitutional principles and the fundamental concepts of its legal system, each of the Parties shall adopt the measures that are necessary to define as criminal offences under their domestic law, when they are intentionally committed, possession, acquisition or the cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or 1971. Convention (United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, article 3)

In the first paragraph of the article mentioned above, there is no doubt that the conduct that is intended to be prohibited is the illicit trafficking of narcotic substances. Concerning the second numeral, the pre-eminence of the constitutional and legal norms of the internal legal order is again expressly subscribed to over the agreements of the convention, which although they recommend typifying crimes of possession, that has not been reflected by The COIP, since faithfully following the constitutional principles in force, the possession or possession of scheduled substances subject to non-trafficking control has not been criminalized, and this will be demonstrated in greater detail in the development of the investigation.

At the moment it has been put on the table that the Law on Narcotic and Psychotropic Substances had no constitutional impediment to incorporate the recommendations made by the international conventions mentioned in the previous chapter, and that is why it openly typified possession, possession and of course illicit trafficking in narcotic and psychotropic substances. However, as it has already been said, this normative situation fluctuated in the COIP for the forceful reason that the new National Constitution revalued those behaviours in a much more rational and up-to-date sense when feeling social and scientific.

When saying of the ancient Law of Narcotic and Psychotropic Substances, this had as an objective in its art. 1 the following: “This Law aims to combat and eradicate the production, supply, misuse and illicit trafficking of narcotic and psychotropic substances, to protect the community from the dangers arising from these activities.” (Law on Narcotic and Psychotropic Substances, 2004, art. 1)

In turn, Article 3 indicated allusion to the following:

Scope of the law. This Law covers everything related to The possession, possession, acquisition and use of controlled substances, raw materials, inputs, components, precursors or other specific chemical products intended to manufacture or produce them, their derivatives or preparations, and the machinery, equipment or goods used to produce or maintain them. (Law of Narcotic and Psychotropic Substances, 2004, art. 3)

As it is easy to see, there is an absolute acceptance of the ancient Law on Narcotic and Psychotropic Substances to the conventions that were cited, since possession and position without trafficking purposes were considered criminally relevant conduct there. Moreover, as it has already been said, that would not have to generate astonishment, since the nonexistent constitutional contention of that time allowed it. Continuing with the analysis of the Law, the third title refers to the improper use of substances subject to control and the rehabilitation of affected persons, and article 27 prescribes that: “Of the improper use of substances subject to control. - Abuse of controlled substances is understood to mean anyone who is not therapeutic.” (Narcotic and Psychotropic Substances Act, 2004, art. 27), while article 38 maintained the following:

Possession of substances subject to control. - No one may, without legal authorization or prior dispensing of a medical prescription, keep on their person, clothes, suitcases, housing, workplace or any other place any quantity of the substances subject to control, nor have them, in any way, for traffic unlawful of them. (Law of Narcotic and Psychotropic Substances, 2004, art. 38) Consequently, article 27 of the Law makes it clear that the use of substances subject to control without therapeutic purpose is improper and therefore punishable; Helping with this, Article 38 establishes a wide variety of commission forms in which it includes possession and illicit trafficking. Therefore, whether from a systematic, a literal (syntactic, semantic) or a teleological interpretation, in any case, would lead to the conclusion that in the Law of Narcotic and Psychotropic Substances any type of possession of controlled substances was typified with the only exception of therapeutic use.

At this point, the COIP prescribes in the Second Section of the Third Chapter referring to “Crimes Against the Rights of Good Living”, all the offences and provisions related to listed substances subject to control, from “production” to “actions of bad faith to involve in crimes”. However, as it has already been said, the legislator does not classify the simple or nontraffic possession as if the old Law of Narcotic and Psychotropic Substances did. Therefore, from now on, the article 220 of the COIP that refers to illicit trafficking and the provision of article 228 that refers to the acceptable amount for personal use or consumption will be exclusively analyzed, since these articles are usually used as Reason for wrongly criminalizing simple tenure:

The illicit trafficking of scheduled substances subject to control. - The person who directly or indirectly without authorization and requirements provided in the corresponding regulations:

1. Offer, store, broker, distribute, buy, sell, send, transport, market, import, export, possess, possess or generally carry out illicit traffic in narcotic and psychotropic substances or preparations containing them, in the quantities indicated in the scales provided in the corresponding regulations, will be punished with the custodial sentence as follows:

a) Minimum scale of one to three years.

b) Medium-scale of three to five years.

c) A large scale of five to seven years.

d) A large scale of ten to thirteen years.

The final paragraph of article 220

The possession or possession of narcotics or psychotropic substances for personal use or consumption in the amounts established by the corresponding regulations, will not be punishable. (COIP, 2014, art. 220)

First, as a preliminary clarification, due to being impertinent for the investigation, the decision was taken not to cite the second numeral of article 220 of the COIP that refers to the illicit trafficking of chemical precursors, and the penultimate clause of the article that refers to an aggravating circumstance. Now, it is valid to emphasize at the outset that a literal (syntactic, semantic) and constitutional interpretation of article 220 makes it clear that the only intention is to criminalize the illicit trafficking of scheduled substances subject to control and chemical precursors. However, the topic of the interpretation of the penal type will receive a more significant dogmatic treatment in the fourth chapter of the investigation.

Now, to have a comprehensive vision of current regulations, an extract from Resolution No. 001 of September 9, 2015, published in the Second Supplement of Official Registry No. 586 of December 14, will be cited below. September 2015 issued by the National Council for the Control of Narcotic and Psychotropic Substances (from now on, CONSEP), which establishes the punishable amounts concerning illicit trafficking.

Article 1, Ratify the tables of narcotic and psychotropic substances to sanction the illicit traffic of minimum, medium, high and large scale, provided for in article 220 of the COIP, approved by Resolution No. 001 CONSEPCD- 2015, of September 9, 2015, published in the Second Supplement of the Official Registry No. 586 of September 14, 2015, and its errata faith published in the Official Registry No. 597 of September 29, 2015, the amounts of which are:

The final subsection of article 220 has also been cited, where the existence of a regulation that details the quantity of drug admissible for use for personal consumption is established; Along the same lines, article 228 prescribes the following: “Allowable quantity for personal use or consumption. - The possession or possession of narcotics, psychotropic substances or preparations containing them, for personal consumption, will be regulated by the corresponding regulations”. (COIP, 2014, art. 228)

Therefore, in order to inform the appropriate amount for personal use, CONSEP (2013) in resolution No. 001 -CD- 2013 has said the following:

Considering:

That article 364 of the Constitution of the Republic of Ecuador says: “Addictions are a public health problem. The State will be responsible for developing coordinated information, prevention, and control programs for the consumption of alcohol, tobacco, and narcotic and psychotropic substances as well as offering treatment and rehabilitation to occasional, habitual and problematic consumers. In no case will their criminalization be permitted or their constitutional rights be violated ... “;

Solve:

Article 1.- To accept the toxicity analysis, psychological, biological and other studies necessary on the possession of narcotics and psychotropic substances for personal consumption prepared by the Ministry of Public Health, as well as the proposal of maximum admissible amounts of possession for consumption personnel raised by the Minister of Health, in which the following amounts are recommended as maximum admissible for tenure:

Finally, with this normative framework and to direct the dogmatic analysis that continues, from now on it will be decided to change the perspective of abstract analysis, to a specific assumption that allows corroborating the objective set out in the research. In this sense, the extensive catalogue of substances subject to control will be exemplified only with marijuana, and the guiding verbs of article 220 will be analyzed in depth.

Muñoz Conde and García Arán (2010) teach that the interpretation of the norms can be carried out on different levels, namely: the authentic interpretation is primal and is carried out by politicians in their legislative work; Judicial interpretation is carried out by the judges in their jurisdictional tasks and, naturally, doctrinal interpretation is in charge of the jurists and professors of criminal law. Now, it is nothing new to assert that, the legislative technique is usually insufficient in order to comply with the maximum taxability mandate that is characteristic of the principle of legality. Therefore, the interpretive task of judges and jurists are necessary and complementary to reach a maximum of rationality in the administration of justice. Consequently, in future lines, the aforementioned legal institutions will be characterized:

As announced in the introduction to the investigation, at this point an erroneous condemnatory sentence for possession of marijuana without trafficking will be analyzed, this has been issued by one of the judges of the Criminal Judicial Unit of the city of Ambato, in the Republic of Ecuador, dated June 25, 2018, and was fully signed on October 2 of the same year.

The judicial case is signed with the number 18282-201800726 and can be located and reviewed in the “consultation of causes” section of the website of the Council of the Judiciary. The sentence to be analyzed has a considerable length, and for this reason, the main events that occurred and the legal considerations adopted by the judge will be transcribed with some criticism from the writer. Of course, the reader is told that the sentence has a series of typing errors and some inconsistencies in the identity and quantity of the prohibited substance for which it is criminalized; In such circumstances, it is recommended to read it in its entirety to understand its content entirely.

Facts:

1.- On Wednesday, May 02, 2018, at approximately 5:00 p.m., in the streets Av. Bolivariana and Av. Galo Vela of the canton Ambato, the anti-drug police officers Sgos. Ivan Guamangallo, Cbop. Walther Chillagana and Cbos. Klever Chicaiza have apprehended the citizen Patricio José López Tobar, in circumstances that minutes before have come to know that in this sector a subject would be carrying out activities to sell scheduled substances subject to control, so when they went to the sector they found that a subject with similar characteristics to those reported, was on Av. Galo Vela at the height of Parque Troya, so they have approached him identifying themselves as police members in order to have proceeded to carry out a body search, finding him in his right pocket from his pants, six transparent plastic covers containing a greenish vegetable substance, presumably drugs, thus making him aware of his constitutional rights. (Court case No. 18282-201800726, 2018, p. 1)

What is prescribed corresponds to the main event that occurred, but it is essential to highlight the existence of a second fact, which is that, once the subject was apprehended, he allegedly would have given consent to the police officers to enter his home, and in that place a second quantity of marijuana. In this regard, the judge said the following:

2.- In this scenario, since it is a person apprehended whose apprehension indicates one of the apprehending police officers to have occurred on the street and who would have been informed of his constitutional rights, which are located in Article 77, paragraph 4 of the Constitution (2008), namely: “At the time of the arrest, the agent or agent will inform the detained person of their right to remain silent, to request the assistance of a lawyer, or to a human rights defender. public in case you could not designate it by yourself, and to communicate with a family member or with any person you indicate. “, allows us to warn that for the entrance to the address in question, a court order was required, since the information obtained was from of the apprehension of the current defendant, who in an inexorable and evident way was already coerced by the very presence of the police element and therefore no questioning could be carried out, which means that the second quantity of substance found in a total gross weight of 300 grams, as stated in the drug verification and weighing act, lacks legal efficacy, since said evidence (300 gr.) has been obtained in violation of the due process rules , specifically that provided for in our constitutional framework in Article 76, numeral 7, literal e) of the Supreme Charter of the State: “No one may be questioned, even for investigative purposes, by the State Attorney General’s Office, by an authority police or any other, without the presence of a private attorney or a public defender, or outside of the premises authorized for this purpose.” (CRE, 2008) 7.8.- This jurisdictional criterion has also been upheld by the Honorable Specialized Chamber of Criminal Matters of the National Court of Justice, considering that: “23.- In conclusion: a.- That the arresters have subjected the detainee to interrogation without technical assistance and without having been previously brought before a judge of guarantees, makes it possible to distinguish between the evidence she provided at the time of her arrest (...), and that found as a result of the unlawful interrogation, leaving her defenceless according to the previous numerals. (Court case No. 18282-2018-00726, 2018, pp. 9-10)

Then, according to what the judge said, noting that was found in the home could be taken into consideration when solving the case because it was obtained illegally and unconstitutionally; and, therefore, to act differently would be to break provisions of the highest hierarchy. Therefore, the trial will only deal with the six marijuana cases found in Patricio López’s pants and which have been described in the first act. Continuing with the facts:

3.- The statement with the oath of the expert AUGUSTO XAVIER CAJAS ROCAFUERTE, who stated that on May 3, 2018, two pieces of evidence of the case of Mr Patricio José López Tobar were delivered to him in order to carry out the diligence of weighing and chemical analysis of the A substance identified by an M1 sample as consisting of six transparent plastic covers of a greenish vegetable substance that tested positive for MARIHUANA with a gross weight of 42.18 grams and a gross weight of 39.95 grams. (Court case No. 18282-2018-00726, 2018, p. 14)

4.- For his part, the defendant as a means of defence in light of Art. 507 numeral 1 of the COIP, declared WITHOUT OATH, who is Ecuadorian, 28 years old, who had his domicile on the streets Av. Galo Vela and he currently resides with his parents in the parish Augusto N. Martínez, who was at his home on May 2, 2018 and that he left for lunch, returning later, which also later came out again and when he took about five steps some gentlemen voted for him against the wall saying that they had a complaint against him for stealing phones, that they proceeded to search him and that’s where they found him (referring to the M1 evidence that today is known to be marijuana), that they also found his money in the sum of 350 dollars and his cell phone, that in January they voted him something and he got strange, that there they told him if he had more or not (referring to the substance found), who pointed out that this (green vegetable substance) is its use pe rsonal, that the police threatened that the GOE would come to his house to knock on the door and that in this situation he let them in and a chubby policeman was the one who took their money from which he made a loan and there he bent down and handed them the cover black that is in the photos, that in the nightstand had jewels and these were lost since criminalistics never took and took him to Ficoa. (Court case No. 18282-2018-00726, 2018, p. 16)

On the testimony of the expert who analyzed the substance that the defendant had, he indicated beyond the typing error that his net weight was 39.95 grams. For his part, the defendant who was allowed to give his testimony on the facts indicated that the substance found was for his personal consumption. So, up to here and according to the analysis that was made in the previous chapters, the quantity that Patricio had for his consumption should be considered inadmissible in the eyes of the Law, in reason of exceeding the 10 grams allowed according to the CONSEP resolution, but This does not automatically convert it into traffic, being the unavoidable responsibility of the prosecution to verify that purpose during the trial hearing.

Well, so far, the primary and pertinent facts of the case have been transcribed. From now on, the legal foundations issued by the judge will be reflected in the operative part of the judgment. The judge said the following:

EIGHTH: [FACTICAL, LEGAL AND JUDICIAL PROTECTION REASONING]

1.- Referring to the budding case, Criminal Law as part of the legal system has an eminently protective function of legal assets; In the case at hand, the protected legal asset is the right to health, since the substances catalogued are narcotic or psychotropic, threaten the health of all the associates within the constitutional state of rights and justice that prevails in Ecuador and is the that the standard seeks to protect. (Court case No. 18282-2018-00726, 2018, p. 12)

In this first extract, the judge makes it clear that the COIP follows a trend of exclusive protection of legal assets, expressly moving away from any functionalist concept. The legal asset protected in article 220 is the right to health; In this sense, the conduct of having 39.95 grams of marijuana on the part of Patricio López, should only acquire criminal relevance if it was aimed at trafficking, since only in that case would the health of “all the associates within the state be endangered constitutional rights and justice that governs Ecuador “as indicated by the judge, otherwise, Patricio’s right to the free development of his personality would prevent any punitive intervention.

2.- On the other hand, the doctrine when referring to this type of infractions, classifies them as crimes of abstract danger that are consummated with the creation of a small danger for the protected legal good, that is to say, that it can be conceived as a simple probability of injury and the active situation of danger is not expressly required, but the reason for their punishment is that they usually pose a danger. (Court case No. 182822018-00726, 2018, p. 12)

Regarding this, although the argument put forward by the judge is valid, it should be emphasized that not any conduct is dangerous or relevant to criminal law, and this has been demonstrated in the fourth chapter of the investigation, by saying that the legislator signed the guiding verbs of article 220 with the purpose of drug trafficking and that possession or possession is not typical but are aimed at that purpose.

3.- Thus, the public health legal asset, analyzed in the context of the illicit possession and possession of narcotics and psychotropic substances, denotes the intention of the legislator to protect the plural holders of that asset (society), from the alleged conduct dangerous fork. (Court case No. 18282-2018-00726, 2018, p. 12)

Here, the judge makes it clear that illegal possession and possession endangers society and for this reason, the legislator criminalizes that conduct. What the judge seems to ignore or ignore is that, for the possession or possession of drugs to endanger society, it must be aimed at trafficking or commercialization, since only there would it become dangerous for third parties.

4.- Thus, the prosecution has accused the accused Patricio José López Tobar of having adapted his conduct to the criminal type contained in numeral 1, literal c) of Art. 220 of the Organic Comprehensive Criminal Code, but more in kind the prosecutor Dra. Mabel Díaz imputed her alleged participation for the same criminal type but literal b) that deals with the illicit traffic of scheduled substances subject to medium-scale control and is in turn typically described in Article 220, numeral 1. (Court case No. 18282-2018-00726, 2018, pp. 12-13)

This part establishes that the prosecution had initially accused Patricio López of marijuana trafficking in the highscale quantity. However, when the substance found in the home was ruled unconstitutional, she ended up reformulating her accusation to the medium-scale quantity. Also, the judge recognizes that article 220 typifies illicit trafficking, so it is suggestive that the evidentiary activity should be directed in that direction.

5.- As can be seen from the description of the criminal type supra cited, there are several guiding verbs, being that the prosecution has attributed to the accused the possession (at the time of registration) and possession (at the time of registration of the address) of a narcotic substance such as COCAINE BASE. (Court case No. 18282-2018-00726, 2018, p. 13)

First of all, it is necessary to clarify that at the end of the extract a confusion of substance is committed when referring to cocaine, but in subsequent pages, it is made clear that it was a typing error and that the alluded substance never existed, but rather, He intended to refer to 39.95 grams of marijuana. Well, having clarified this point, the judge acknowledges that article 220 is made up of several guiding verbs and that the prosecution accused him of possession, due to the marijuana found against Patricio López. That said, prima facie it is concluded that both the prosecution and the judge understand that the guiding verbs of article 220 of the COIP are autonomous and reach criminal relevance without any purpose. Therefore, they only require checking their mere staging, what which, can not be less than an aberration in the exegesis of the norm.

6.- What happens in the present case, being that the executive conduct has managed to cross the barriers of protection of the legal good, which leads to establishing that the person accused is deserving of the judgment of criminal reproach as the third dogmatic category of crime when the guiding verb of “having” a narcotic substance in his possession (body) has been complied with, in contravention of the criminal type of abstract danger and common risk, since the conduct he attends hangs over as a threatening health risk public since here the danger is not an element of the type, but the reason or motive that led the legislator to incriminate the conduct [illicit trafficking], so that when faced with a dangerous course of action, the legislator, without other requirements, sanctions its performance with a penalty; therefore, this crime is formal or of mere activity. (Court case No. 18282-2018-00726, 2018, p. 18)

The prescribed extract is the most important in order to corroborate the premise of the research. The judge expressly says that Patricio López deserves the trial of criminal reproach for having fulfilled the guiding verb of “having” a substance in his possession. It appears that all the evidence acted by the prosecution was aimed at verifying that Patricio had the substance. However, at no time was the purpose of the traffic even mentioned, let alone anybody of evidence to that effect. Once again corroborating that, for both the prosecution and the judge, the guiding verb “have”, which is part of the criminal type of illicit trafficking, enjoys autonomy and does not require any other verification.

Not enough with that hermeneutical aberration, at the end of the extract, it is said by the judge that the criminal type of article 220 was a crime of mere activity when previous lines had indicated that it is a crime of danger. Regarding this, it has been made clear in the fourth chapter of this investigation that the crime of mere activity is entirely different from the crime of danger, and that has different consequences in the analysis of the criminal charge. Nevertheless, well, without wishing to delve into the subject in order to exceed the purpose of the investigation, it is essential to highlight the existence of a dangerous ignorance of criminal law at the head of the judge.

7.- In this order of ideas, the crime in examines sanctions the action that entails the execution of the verb “to have”, narcotic substances without due legal authorization; therefore, the legislator does not establish as part of the constituent elements of its typology any quantitative consideration for the execution of said verbs, that is, the criminal hypothesis abstractly formulated in the legislation referred to by the legislator does not consider the number of illegal substances that they are “held”, but to the fact that this action is carried out, with express or tacit consent without any legal authorization, since the amounts found will serve to adjust the sentence to be adopted. Note, therefore, that the aforementioned legal norm Arts. 220 numeral 1, of the COIP- establishes as one of the fundamental assumptions of the typical and unlawful conduct of this class of crimes, the possession of the narcotic substance, whether in the body, in things, in furniture or real estate that one owner or have any title. This has been pointed out by the National Court of Justice in one of its multiple rulings (Judicial Gazette. Year CIX-CX Series XVIII, No. 7. Page 2436. March 16, 2009). (Court case No. 18282-2018-00726, 2018, pp. 18-19)

Again, the judge makes it clear that Patricio López is criminalized for flat and straightforward possession of 39.95 grams of marijuana, conduct that is atypical in the COIP as has been shown in the investigation. Another argument to understand this hermeneutical aberration is that in the head of the prosecutor and the judge, the possession more significant than 10 grams that the Law for personal consumption allows automatically turns it into trafficking, implying that fraud and the category of guilt are criteria optional to take into account and that they prefer to impute and sanction for mere presumptions. If they take their role in the administration of justice seriously, they should know that having more than 10 grams of marijuana makes possession only inadmissible. However, in order to be typical in light of article 220 referring to trafficking, it must be shown more beyond any reasonable doubt that the subject intended to market the substance, which has been ignored in the present case.

At the end of the extract, the judge cites a 2009 ruling issued by the National Court of Justice and indicates that the grounds of his sentence are following the record set by the Court. In this part, not only is evidence of ignorance on the part of the judge, but also, complete negligence in giving rationality to his sentence; Since it is real that the National Court issued an analysis of the problem with that content, but it did so taking as a starting point the Law on Narcotic and Psychotropic Substances (repealed in 2014) that expressly admitted the simple possession of drugs. Then, the judge never found out about the existence of article 364 of the CRE and was not aware of the revaluation of the state of the drug issue in the COIP.

8.- From the supra singular tests, the elements of the criminally relevant conduct described in Art. 220, numeral 1, literal b) of the COIP have been adequately justified, since the typical action has been executed in a manner directly, without authorization as required by the legal norm, having complied with one of its guiding verbs which is “to have” narcotic substances, in contravention of the criminal type. (Court case No. 18282-2018-00726, 2018, p. 19)

The judge says that the test carried out led to the conclusion beyond a reasonable doubt that Patricio López had narcotic substances and therefore he violated article 220 of the COIP. Therefore, it is once again corroborated that it was never proven, and it was not even intended to prove the purpose of trafficking in tenure and that the mere staging of the guiding verb “have”, turns Patricio into a trafficker.

9- “ADMINISTERING JUSTICE ON BEHALF OF THE SOVEREIGN PEOPLE OF ECUADOR AND BY AUTHORITY OF THE CONSTITUTION AND THE

LAWS OF THE REPUBLIC”, I resolve: 9.1.- TO DECLARE, the guilt of Patricio José López Tobar, Ecuadorian, single, with citizenship card number 1804619227, 28 years old, domiciled in the streets Av. Galo Vela in front of the Guayaquil school in the canton Ambato, province of Tungurahua and currently residing with his parents in the Augusto N. Martínez parish, as the direct author of the typical, unlawful conduct and guilty as provided for in Article 220, numeral 1, literal b) of the Organic Comprehensive Criminal Code [ILLICIT TRAFFIC OF SUBSTANCES CATALOGED SUBJECT TO AUDIT ON A MEDIUM SCALE 9.2. - IMPOSE, the citizen Patricio José López Tobar, the custodial sentence of THREE YEARS OF PRISION to be served at the Ambato Social Rehabilitation Center. (Court case No. 18282-201800726, 2018, pp. 24-25)

As expected, the judge found Patricio López guilty and sentenced him to 3 years in prison, and while his sentence allowed conditional suspension under article 630 of the COIP, his lawyer filed said action. Now, the article mentioned above requires four conditions for the request for suspension of the sentence to be admitted, and the judge made the following analysis:

Regarding the first requirement, he stated: “On this point, it is clear that given the criminal type with a sentence of three to five years in prison, which complies with this budget.” (Court case No. 18282-2018-00726, 2018, p. 21)

About the second requirement, it was said:

In this regard, sufficient documents have been presented, such as the certification obtained from the Council of the Judiciary through the computer system that is publicly available on the web, thus justifying not having a ruling or process in force beyond the current one, nor that he has been benefited with an alternative solution in another case, which means that the sentence imposed on the active subject Patricio José López Tobar is the first, thus revealing the low level of danger of the individual. (Court case No. 18282-2018-00726, 2018, p. 21)

Regarding the fourth requirement, it was said: “That it is not about crimes against sexual and reproductive integrity, violence against women or members of the family nucleus, which is not the case.” (Court case No. 18282-2018-00726, 2018, p. 21)

So far, for the judge’s perspective, the requirements of the conditional suspension of the sentence were met, but regarding the third requirement that includes two budget, he said the following:

On the first budget of the third requirement (the personal, social and family history of the sentenced person):

At this point, more than the certificates that do not record a personal history has been presented, as well as several certificates of honorability, recognized signature and heading, as well as a birth certificate of a minor between the accused and the Belgian citizen Yolanda Manobanda Chuquicondor, who provides food as stated in the corresponding web form through family process No. 18202-2015-01199, also counting on the affidavit given by Marlo Roberto Granda López as soon as he, in the Eighth Notary of the canton Ambato, has indicated to be the person who agrees to provide work to the sentenced from the request for conditional suspension of sentence. (Court case No. 18282-201800726, 2018, pp. 21-22)

Regarding the second budget of the third requirement (the modality and severity of the conduct are indicative that there is no need for the execution of the sentence), he said that: “... the THEME OF DRUGS is considered a crime against humanity due to its harmful effects that it produces in PUBLIC HEALTH… “(Court case No. 18282-2018-00726, 2018, p. 23). Furthermore, the following was said:’

… Official Registry No.319 of November 12, 2010, and even in judgment 001-12-SCN-CC of January 5, 2012, it is noted that: “on the subject of drug trafficking crimes that, due to its negative connotations, have been classified as crimes against humanity. (Court case No. 18282-2018-00726, 2018, p. 23)

Therefore, we should not fail to note that in the case in process, the defendant was additionally found to have another quantity of the same substance (288.33 grams of marijuana in his home), which under the application of the exclusion rule for being violative of constitutional rights was expelled from the judicial assessment as a result of the ineffective police action, but which in itself, therefore allows us to warn, according to the evidence practised in the oral trial, that the quantity of 39.95 grams of marijuana found in the power of the defendant at the time of his body registration in the Av. Galo Vela and Av. Bolivariana of this canton Ambato correspond to a modality of his conduct that merits his internment in a social rehabilitation centre in order to fulfil the proper purpose of the penalty to the extent that Article 52 of the COIP establishes it, because “… society requires a civilized coexistence where people mutually respect their rights so that there is permanent, an entirely harmonious and peaceful social coexistence continues; however not all people assume the social commitment of this coexistence and with their acts they break the harmony in these cases when people cross the field of legality thus committing offences… “(Court case No. 18282-2018-00726, 2018, pp. 23-24) Well, even although the conditional suspension of the sentence escapes the academic interests of the investigation, it is unavoidable to highlight the last significant aberration of the judge at the time of sentencing. Here it is stated that the requirements: first, second, fourth and the first budget of the third requirement have been demonstrated.

Nevertheless, in the judge’s eyes, the problem lies in the second budget of the third requirement of article 630 of the COIP, that is, that the modality and seriousness of the conduct are indicators that it is not necessary to execute the sentence; So, first, the judge says that the “drug issue” is considered a crime against humanity; and here it is pronounced with an astonishing generality since in this line of thought it turns out that possession of 39.95 turns out to be a crime against humanity.

Then he cites a resolution of the National Court in which it is indicated with greater wisdom that drug trafficking is a listed crime against humanity. However, then, not any “drug issue” is considered a crime against humanity, but only drug trafficking. At this point, the Royal Academy of Language (2014) defines drug trafficking as “large-scale toxic drug trade”. In this sense, the non-trafficking possession of 39.95 grams of marijuana (minimal amount) is not at all drug trafficking and even less can serve as a legitimate argument to reject the conditional suspension of the sentence.

Moreover, the trigger point of maximum irrationality in the sentence is found in the last extract that was cited; here it is based on an inadmissible prejudice, because verbatim the judge says: “we must not fail to note that in the case in process, the defendant was found additionally another quantity of the same substance (288.33 grams of marijuana at his home).” (Court case No. 18282-2018-00726, 2018) When the judge himself had initially stated that in no way will events after the arrest of Patricio López be taken into account due to the constitutional violation committed by the police officers in the collection of evidence.

Article 364 of the Constitution of the Republic of Ecuador expressly prohibits the criminalization of consumers of scheduled substances subject to control.

The Organic Comprehensive Criminal Code prescribes in article 220 the trafficking of scheduled substances subject to control. Therefore, the guiding verbs that are part of the article and that do not exhaust the prohibition of the rule with its mere stagings, such as possession or possession, will only be punishable when the purpose of trafficking or beyond a reasonable doubt is verified.

Having more than 10 grams of marijuana makes possession “inadmissible”, but this does not mean that inadmissible possession becomes full-fledged traffic, but instead that the prosecution must reliably demonstrate that the substance was destined to be marketed.

The inadmissible possession of marijuana at most serves as a sign of trafficking; however, proof remains through sufficient and reasonable evidentiary exercise.

The inadmissible possession of marijuana without trafficking purposes does not endanger the legal health, and since the crime prescribed in Art. 220 of the COIP is the result of danger, in no way would it meet the injurious requirement for its punishability.

Simple possession of marijuana is atypical in the Ecuadorian legal system.

Patricio López was illegitimately sentenced to 3 years in prison in cash compliance.

An exhaustive search will show that, like this case, there are many more in which Ecuadorian and foreign citizens have been sentenced for the conduct of inadmissible possession of drugs without the purpose of trafficking, constituting a monumental legal aberration and a severe violation of human rights of institutional origin.

http://www.revistarfjpuce.edu.ec/index.php/rfj/article/view/129/195 (pdf)