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Sentenced could not contract with the State between 10 and 25 years
Posted On 26 Dec 2017
Ecuadornews:
Reforms in nine articles of the Constitution and of the penal, electoral and public service rules should be applied to sanction with the so-called “civil or political death” any person condemned for acts of corruption, to win the Yes in question 1 of the referendum and popular consultation on February 4.
Several analysts consider these changes necessary, but others make observations and even mention contradictions in some laws.
One of the reforms is in Article 233 of the Constitution. According to Mauricio Alarcón, director of Fundación Ciudadana y Desarrollo, when this reform was included, the loss of participation rights determined in article 61 of the Constitution was consecrated for a long time. But there is a penal principle (in the Constitution, in the Penal Code and in international human rights instruments) that is the social rehabilitation of sentenced persons. “The proposal of this question completely nullifies this principle and brings serious consequences in terms of human rights.”
The Code of Democracy proposes to change the numeral 2 of Article 96. The jurist and ex member of the supreme Electoral Supreme Court Medardo Oleas says that the purpose is to prevent “for life” that who held a public function, either by appointment or by choice, and who was convicted for abusing state money, re-candidatize.
Jorge Rodríguez, of the National Anticorruption Commission, says that with the amendment to Article 10 of the Public Service Law that deals with special prohibitions for the performance of a position, function or public dignity, it may go against citizen rights, but it would have effect against political rights because he could not hold a public office by popular election.
On the Comprehensive Organic Code of Criminal Procedure (COIP), Alarcón explains that adding the numeral 14 in article 60 dealing with non-custodial sentences seeks to incorporate, following the loss of the participation rights of numeral 13, one related to the disqualification to hire. When adding a second clause in Article 68, there would be a contradiction with the first one, since exceptions would be established and in certain criminal cases the loss of rights would be between 10 and 25 years. According to Alarcón, these exceptions in many cases do not make sense.
He says, for example, that the embezzlement can be punished up to thirteen years, illicit enrichment up to ten years, without considering that if there is at least one aggravating circumstance the penalty could increase by one third, he explains. It is positive that the final clause of article 77 incorporates into criminal law the responsibility of the condemned so that they do not go out to enjoy the ill-gotten.
The incorporation of subparagraphs in articles 280, 285 and 289 seeks to determine sanctions for legal persons responsible for concussion, influence peddling and testaferrismo. It is seen as progress, since in several cases companies are used.
Do you agree that the Constitution of the Republic of Ecuador be amended so that all persons convicted of acts of corruption are sanctioned with their disqualification from participating in the political life of the country and with the loss of their property, as provided in Annex 1?
APPENDIX 1 CONSTITUTION OF THE REPUBLIC OF ECUADOR Replace article 233 of the Constitution of the Republic of Ecuador with the following text: “No servant or public servant shall be exempt from liability for acts performed in the exercise of their functions or omissions, and shall be administratively, civilly and criminally responsible for the management and administration of funds, assets or public resources.
The servants or public servants and the delegates or representatives to the collegiate bodies to the institutions of the State, will be subject to the sanctions established for crimes of embezzlement, bribery, concussion and illicit enrichment.
The action to pursue them and the corresponding penalties will be imprescriptible and in these cases, the trials will begin and continue even in the absence of the accused persons. These norms will also apply to those who participate in these crimes, even if they do not have the qualities indicated above.
People against whom there is an executory conviction for the crimes of embezzlement, illicit enrichment, concussion, bribery, influence peddling, bid to carry out influence peddling, as well as, money laundering, illicit association, and organized crime related to acts of corruption, they will be prevented from being candidates for elected office, to contract with the State, to hold public positions or jobs and will lose their participation rights established in the present Constitution “.
ORGANIC LAW AND POLITICAL ORGANIZATIONS OF THE REPUBLIC OF ECUADOR, CODE OF DEMOCRACY Replace number 2 of article 96 of the Organic Electoral Law and Political Organizations of the Republic of Ecuador, Code of Democracy, by the following: “2. Those who have received an executory sentence for crimes of embezzlement, illicit enrichment, concussion, bribery, influence peddling, bid to perform influence peddling as well as, money laundering, illicit association and organized crime related to acts of corruption.”
ORGANIC LAW OF THE PUBLIC SERVICE
Replace the first paragraph of Article 10 of the Organic Law of the Public Service, by the following text:
“Persons against whom there is an executory conviction for offenses of: embezzlement, illicit enrichment, concussion, bribery, influence peddling, offer to perform influence peddling, and as well as, money laundering, illicit association and organized crime related to acts of corruption; and, in general, those who have been sentenced for fraud to state institutions are prohibited from performing, under any modality, a position, position, function or public dignity.
COMPREHENSIVE ORGANIC CODE OF CRIMINAL CODE
Add the number 14 to article 60 of the Organic Comprehensive Criminal Code, which stipulates:
“14. Disqualification to contract with the State that will be applied in convictions for crimes of embezzlement, illicit enrichment, concussion, bribery, influence peddling, bid to perform influence peddling, and as well as, money laundering, illicit association and organized crime related to acts of corruption, non-custodial sentence that will be communicated to the regulatory technical body of the National System of Public Procurement. ”
Add as a second paragraph in Article 68 of the Comprehensive Criminal Organic Code, the following:
“In the case of the offenses of embezzlement, illicit enrichment, concussion, bribery, influence peddling, offer to perform influence peddling and testaferrismo; As well as, money laundering, illicit association and organized crime related to acts of corruption, judges will be required to apply this sanction for a period of between ten and twenty-five years. ”
In article 77 of the Integral Penal Organic Code, the following final clause is incorporated:
“The persons condemned with an enforceable sentence for committing crimes of embezzlement, illicit enrichment, concussion, bribery, influence peddling, offer to carry out influence peddling and testaferrismo; as well as money laundering, illicit association and organized crime related to acts of corruption, they will respond with their assets up to the amount of the integral reparation of the State and society. ”
In article 280 of the Comprehensive Criminal Organic Code add the following final clause:
“In case of determining liability of the legal entity will be sanctioned with the dissolution and liquidation and payment of a fine of five hundred to one thousand unified basic salaries of the worker in general.”
In article 285 of the Integral Penal Organic Code, it is incorporated as the third paragraph, the following:
“In case of determining liability of the legal entity will be sanctioned with the dissolution and liquidation and payment of a fine of five hundred to one thousand unified basic salaries of the worker in general.”
In article 289 of the Integral Penal Organic Code, the following is added as a second clause:
“In case of establishing responsibility of legal persons will be sanctioned with its extinction and fine of five hundred to a thousand unified basic salaries of the worker in general”. (I)
