El vacío normativo en el código orgánico integral penal respecto del toque de queda y su incidencia en la violación del principio de proporcionalidad penal en Ecuador 2024–2026.

Abstract

This article starts from a simple observation: Ecuador’s Comprehensive Organic Criminal Code (COIP) does not criminalize curfew violations decreed under the states of exception the country has lived through between 2024 and 2026, and yet prosecutors and judges have spent that same period punishing exactly that conduct. Taking a criminal-dogmatic and constitutional approach, this article argues that stretching Article 282 of the COIP —non-compliance with legitimate decisions of a competent authority— to fill that gap amounts to an analogical application against the defendant, since that offense requires an individualized order, addressed to a specific person and formally notified, requirements that a general executive decree —whose only form of publicity is its appearance in the Official Registry— simply cannot meet. The article further contends that this practice strains the right to legal certainty (Article 82 of the Constitution), the principles of legality and specificity (Article 76.3), proportionality between offenses and penalties (Article 76.6), and minimal criminal intervention (Article 3 of the COIP), by reserving a severe criminal response for conduct that, given how minor its harm actually is, would fit better as a misdemeanor. The article closes by proposing, de lege ferenda, that a specific misdemeanor for curfew violations be added to the COIP, carrying non-custodial sanctions —fines and community service—, a clear regime of exceptions, and proceedings with full due process guarantees.