Economic reparation to victims of crimes such as murder or rape is something unenforceable in Ecuador

For the rape of a girl with 66% intellectual disability, a Chimborazo Criminal Guarantees Court found Dennis Alexander CV guilty and sentenced him to 19 years in prison. The ruling also includes the payment of $5,000 as comprehensive reparation in favor of the victim.

The sentenced person is already serving his sentence, but not the payment, he has nothing to do with it.

The same happens in the case of Elvis Alfredo Ch. M., sentenced to 34 years in prison and ordered to pay more than one million dollars, between a fine of 1,300 basic salaries ($552,500) in favor of the State and $500,000 as Comprehensive reparation to the families of the victims, for having participated in the murder of three people, including a one-year-old child, in Guasmo, south of Guayaquil.

Like Dennis, Elvis does not have assets in his name for the reparation to be executed; and inside the deprivation of liberty centers they do not work, neither the State nor their victims can charge them what the judges dictate in their respective sentences.

These are not isolated cases, say trial lawyers, these two examples reflect a daily situation in the courts of Ecuador: the judges comply with the regulations that require them to dictate -along with prison sentences- reparatory measures, but these do not materialize because those sentenced have no way to pay.

The pecuniary sanctions are calculated according to the sentence imposed, explains criminal lawyer Julio César Cueva, but in the end the table that is regulated in article 70 of the Comprehensive Organic Penal Code (COIP) ends up being a “dead letter,” he laments.

Crimes against life have a higher amount of compensation than other criminal offenses. “The problem is that the people who commit murders are not the ones with the most economic income, in fact, they are generally the poorest, so the Court imposes the penalty, the fine and the economic compensation according to what the norm dictates, but from there to them going to pay that is another story, ”explains Cueva.

For him, “There is a divorce between reality and the normbecause the economic situation of the country is not being taken into account and, besides, when a person enters a deprivation of liberty center they no longer produce, then where are they going to pay?

The COIP says that if a person deprived of liberty works inside a detention center, a percentage of his salary goes to the full reparation of the victim, another to his family and another to his livelihood, Cueva recalls, but immediately reflects : If there is no work on the street, how many jobs can there be in prison?

That there is a disproportionality in the application of fines and reparations had already been warned by an investigative study by the Universidad de los Andes in 2018, when the reformed COIP had been in force for four years, but the pecuniary sanctions have not been reduced. And the victims do not see a comprehensive reparation, as the sentence says. “Paper holds everything,” complains a woman, a relative of an inmate who died in the February 2021 massacre at the Penitentiary.

For these facts there is already at least one sentenced. On January 28, the Guayas Criminal Court declared the prisoner Javier Joel FL guilty of the murder of three other inmates, for which he was sentenced to 34 years in prison and the payment of a fine and full reparation in favor of the relatives of the victims. The amount was not announced at the trial hearing, which was oral, but he was told that he would be informed of it in the written sentence.

As these are three fatalities, it is to be expected that the economic compensation will be the same as in the case of Elvis Alfredo Ch. M., who even if he worked in prison for the 34 years to which he was sentenced, that time would not be enough to disburse something more than a million dollars between the reparation to the victims of the triple murder that he committed in Guasmo and the fine in favor of the State.

What happens when the sentenced person does not pay the victim?

The only alternative is that the sentenced person be declared insolvent, explains the lawyer Nicolás Salas, who points out that in the case of comprehensive reparation, this must obey the assessment of the evidence presented and the legal expenses incurred by the victim of a crime.

“When a person deprived of liberty does not have the possibility to pay what the Court has ordered, it can go against their assets, such as a house, vehicle, money, etc., as we have seen that is ordered in cases of corruption ”.

The problem is when the sentenced person does not have material goods, because the victim has nowhere to collect comprehensive reparation. For those sentenced to many years in prison for murder or rape, an additional sanction such as the so-called insolvency, which prevents them from voting, opening an account or being a representative of a company, is somewhat irrelevant.

There is no need to follow another process for that declaration of insolvency, clarifies Salas. “Once the person is convicted and the sentence is final, the process returns to the Criminal Court, which opens the phase of execution of the sentence, the first thing is to verify that the person is in jail and the second is to execute the sentence with respect to property”.

Before, these processes were carried out separately, but now the same judge who sentenced must be in charge of the execution of the sentence, of the pecuniary sanction and of declaring insolvency if the convicted person does not pay the reparation to the victim and the fine to the State.

In practice, the collection of these values ​​is something unenforceable, the lawyers agree.

And that does not only affect victims of crimes, but also the State, especially in cases where corruption has harmed public coffers.

“Those who have been convicted of taking millions in embezzlement crimes simply say they don’t have and don’t pay. The Court tries to execute by ordering that assets and accounts be seized, but that is insignificant given the amount for which they have been sentenced and until the sentence is executed they have no assets in their name, ”recalls Cueva.

Salas does not agree with proposals such as those who do not pay not get out of jail until they do, “because that would be like sentencing those who cannot pay to life imprisonment and that would be unconstitutional.”

A former union leader of judicial workers in Guayas, who prefers that his name be withheld because he now works as a judge, says that the most sensible thing would be to reform the COIP “so that the economic sanctions are real,” “so that the victims who today do not They charge nothing from the aggressors, at least they receive something that is within their reach to repair.”

In addition, it proposes that the proportionality of the fines be changed in favor of the State, which are higher than what is ordered to repair the victim.

An example of this happening is the sentence issued on January 28 by a Guayas Court against Jossimar Jewell PR for the murder of JFML, which occurred in September 2020, in the Cristo del Consuelo neighborhood, southwest of Guayaquil.

The sentenced to 28 years in prison is ordered to pay $20,000 in reparation to the victim’s relatives, a tiny sum compared to the fine of 1,000 worker’s basic wages ($425,000) in favor of the State.

Another example is the ratification of the 29-year prison sentence against Antonio Elías AA for the rape of his sister-in-law, an 11-year-old girl.

On January 31, the Criminal Chamber of the Provincial Court of Justice of Orellana rejected his appeal and confirmed that the sentenced person must pay a fine of 600 unified basic salaries ($270,000) and a comprehensive reparation of $10,000 in favor of the victim. .

Sentences with unenforceable collection values ​​in a “dead letter” of the COIP, as the lawyers lament, where the State -of which the justice sector is a part- intends to collect, by fine, much more than the reparation to families affected by murder or rape . (I)