Tensiones constitucionales entre justicia restaurativa y proporcionalidad en el delito de estafa en Ecuador

Abstract

The investigation argues that restorative justice is presented as a valid and legitimate option from the constitutional point of view, focusing on comprehensive compensation for the damage caused, the assumption of responsibilities by the offender and the participation of the victim in the criminal process. This approach is aligned with the principles of human dignity, minimal criminal intervention and peaceful conflict resolution, recognized in the Constitution of Ecuador. However, in the current Ecuadorian legal framework, its implementation is significantly restricted, given that article 186 of the Comprehensive Organic Criminal Code (COIP) establishes high minimum penalties for cases of fraud, which expressly excludes this crime from the mechanisms of criminal conciliation, even in situations where the economic damage is reduced, easily repairable and there is no serious social affectation. From the principle of proportionality, the analysis questions the uniform and rigid application of custodial sentences, without an adequate assessment of the specific circumstances of the case, such as the amount of the damage, the recidivism of the offender, the absence of violence and the will of the parties to reach a restorative solution. It is argued that this legislative rigidity can generate disproportionate criminal responses that, far from fulfilling a preventive or re-socializing function, contradict the constitutional objectives of the criminal system and unnecessarily overload the administration of justice. Finally, we conclude that this controlled and regulated introduction of restorative mechanisms in the crime of fraud, especially in cases of lower amount and without relevant social impact, reinforces the proportionality of the penalty, improves comprehensive reparation to the victim, promotes the responsibility of the offender and contributes to a greater effectiveness and rationality of the Ecuadorian criminal system, even suggesting clear guidelines for a possible legislative reform that harmonizes criminal regulations with the current constitutional principles.