Regulation of the progressive use of force for police officers and prison guides exists in the Penal Code since 2019

Since December 2019, police and prison guides have the support of the Comprehensive Organic Penal Code (COIP) to exercise the progressive use of force.

This regulation, which previously only had a regulatory category, was included in the reforms carried out by the National Assembly to this legal body, in 2019; the same ones that were published in the Official Registry, in December of the same year.

Thus, article 30.1 of the COIP establishes that there is compliance with the legal duty of the National Police or prison security servant when acting under the protection of his constitutional mission, in protection of his own right or that of another, causing injury, damage or death to another person.

This, if it meets three requirements: that it is carried out in acts of service or as a consequence of it; that for the fulfillment of its constitutional mission, within its professional procedure, observe the progressive, proportional and rational use of force; and that there is an imminent threat or risk to the life of third parties or to their own life or to protect a legal asset.

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“An act of service is understood to be the previous, simultaneous and subsequent actions, executed by the server in compliance with its constitutional mission and the entrusted legal duty … when the performance of the server is carried out outside working hours, in compliance with its constitutional mission, observing the latent risk, effectiveness of the action and urgency of protection of the legal right, ”the Code states.

In the case of military, there is, at the moment, no current regulation, since the Constitutional Court (CC) declared unconstitutional this regulation that was approved as a Ministerial agreement for him former Defense Minister Oswaldo Jarrín.

That regulation had five levels of progressive use of force by the military during a state of emergency, from deterrence to the use of lethal weapons.

Days after assuming his duties as new Defense Minister, General Luis Hernández declared to EL UNIVERSO newspaper that a law is needed to regulate the progressive use of force in the Armed Forces (FF. AA.).

Luis Hernández: We need a law to regulate the progressive use of force by the armed forces. AA.

When the President Guillermo Lasso announced reforms on this issue, as one of the points to improve the penitentiary system of Ecuador, stated: the progressive use of force ”.

A day later, the Legal Secretary of the Presidency, Fabián Pozo, He said that what it was about is to “expand the regulations on the progressive use of force,” he mentioned that reforms will be proposed on this issue to provide security and guarantees to the forces of order and that they are not “unjustly criminalized when they have been in custody. the correct exercise of duty ”.

“It would be necessary to reform the scope for the Police, the prison guides, now, for example, they cannot have lethal weapons”, indicated the secretary, and preferred not to advance whether the military would be included in the regulation of the progressive use of force.

For him criminal lawyer Paúl Ocaña, al Expanding the progressive use of force for the military would enter into a rule conflict that could lead to subsequent legal problems, because the Police are there to protect internal security and the military is there for the country’s external problems.

“While it is true, in a state of exception, what is intended is that the military are also taking care of the security of the country, but that would have to enter into a constitutional reform,” said Ocaña.

Meanwhile, the lawyer specialized in Human Rights, María Dolores Miño, He pointed out that the regulations on this issue already exist in Ecuadorian laws and international manuals, and if it is intended to expand it is wrong, because what must be done is to train the public force so that they know how to act in each case.

“I believe that the concept of the progressive use of force is not being well understood, it is not that the police and military cannot act, but that they have to act in proportion to the violence and this cannot be put into law, it is a More about training and case-by-case analysis of the situation, ”added Miño. (I)