Journal of Business and entrepreneurial
January - March Vol. 7 - 1 - 2023
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Effects on business and administration of resolution
12 - 2015 on criminal policy in Ecuador.
Efectos en negocios y administración de la resolución 12 –
2015 en la política criminal en Ecuador
Evelyn Dayana Ibañez Alberca
*
Luis Mauricio Maldonado Ruiz
*
ABSTRACT
The objective of this research work is to demonstrate that
the Reform No.001-CONCEP.CD.2015 or Drug Table of
2015 has not given good results and that what it has
generated is that there is an increase in the number of
people arrested for carrying controlled substances and
they are established as traffickers. The research
methodology used is the documentary - bibliographic
method, since a database of the last years of Public Entities
was used and information was collected from several texts
that had reference to the subject. In addition, the research
concludes that the State should return to the previous
Table to avoid the criminalization of consumers and that
the table should be raised within the Comprehensive
Organic Penal Code, and that the implementation of the
2015 Table has not made any change in the Ecuadorian
criminal policy and has only brought the problems to
increase.
Keywords: drugs, reform, criminalization, drug users,
prisoners
RESUMEN
El presente trabajo investigativo tiene como objetivo
plateado el demostrar que la Reforma No.001-
CONCEP.CD.2015 o Tabla de drogas del 2015 no ha dado
buenos resultados y que lo que ha generado es que haya
un crecimiento de detenidos por portar sustancias sujetas
* Lawyer, Universidad Internacional del Ecuador, evibanezal@uide.edu.ec,
https://orcid.org/0000 -0002-7412-0828),
* Master's Degree in Criminal Justice and Criminology, Universidad
Internacional del Ecuador. lumaldonadoru@uide.edu.ec.
https://orcid.org/0000-0002-0956-7869
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a fiscalización y se los establezca como traficante. La
metodología de investigación que se utilizó es el método
documental bibliográfico ya que se utilizó base de datos
de los últimos años de Entidades Públicas y se recogió
información de varios textos que tenían referencia al tema.
Además, dentro de la investigación se concluye que el
Estado debería volver a la Tabla anterior para evitar la
criminalización de los consumidores y se la tabla sea
planteada dentro del Código Orgánico Integral Penal, y que
la implementación de la Tabla del 2015 no ha hecho ningún
cambio dentro de la política criminal ecuatoriana y que solo
ha traído que los problemas se incrementen.
Palabras clave: drogas, reforma, criminalización,
consumidores, prisioneros
INTRODUCTION
This paper makes an analysis and criticism of the different reforms of the drug tables
that have occurred and that have affected the country, mentioning that the latest reform,
Resolution No. 002-CONSEP-CD-2015 issued by the National Council for the Control
of Narcotic and Psychotropic Substances published in Official Register Supplement 628
of November 16, 2015, has not provided solutions and has created problems in the
political and legal spheres, among others. Being that in the political sphere there has
been a lack of interest on the part of governments that have not provided solutions to
the problem of drugs and their consumption, and have not created public policies that
help drug addicts to face this problem.
In the legal area, it is necessary to establish that the Organic Integral Penal Code does
not stipulate the scales or ranges of drugs that are allowed and only contemplates a
sanction divided into four scales, but this is stipulated in another regulation.
The justification for this work is that there has been confusion in society about this issue,
since it is thought that the table allows consumption, when this is not the case. It is
necessary to clarify that the table delimits drug trafficking to make it easier to establish
a sanction for those who commit the crime and to make it clear that these frameworks
used are affecting consumers who use different narcotics for their consumption.
Eliminating the table does not solve micro-trafficking, nor will it stop this activity, nor
will it make drug addiction disappear. It must be analyzed here that trafficking is related
to a social sphere due to the fact that many of the small-scale traffickers are poor,
receiving an exaggerated penalty for the crime committed.
The aim is to make it known that the percentages established in the 2015 table do not
have any technical determination, therefore, a meaningless regulation is being proposed
by establishing low levels and that it is sanctioning in a hasty manner, when it is the duty
of the Prosecutor's Office to establish that the person who carries a controlled
substance is with the purpose of trafficking it, resulting in not differentiating between
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consumers and micro-traffickers, violating the due process for detainees and creating
overcrowding in prisons.
MATERIALS AND METHODS
The research is a qualitative type that is based on an analytical method and uses the
collection of data obtained from different sources that provide specific information
needed to argue and analyze within this work. The information was obtained from the
National Service of Integral Attention to Persons Deprived of Liberty and Adolescent
Offenders, the Resolutions applied on the drug threshold and the legal bodies cited as
the Constitution and the Organic Integral Penal Code, these are the materials that are
going to be occupied and cited to argue in this work.
RESULTS
The issue of drugs and their possession or carrying has been of great relevance within
the Ecuadorian context, being necessary to create laws that regulate the possession and
for what purposes these substances will be used to avoid micro-trafficking. In context,
there are laws proposed since the 50's to deal with illicit trafficking, reforms to these
laws were developed, but we will analyze the latest Resolutions that have existed, thus
the Table of quantities of Narcotic and Psychotropic Substances is given to punish what
is illicit drug trafficking at different scales, cataloging them into four: minimum, medium,
high and large scale, established on July 14, 2014.
Drug table established in 2014.
This 2014 Resolution establishes a threshold for the possession of substances, giving a
maximum amount of drugs that a person can carry or have, either for their own
consumption and that will not be punishable, in case this amount exceeds the established
amount, it is understood that the purpose is the commercialization or trafficking of
drugs. With this type of Resolutions it was intended to establish a difference between
what is considered as a consumer and what is considered as a trafficker or micro
traffickers. Applying a penalty established in another regulatory body to the crime
committed and distinguishing four types of scales helps to have greater clarity in the
participation and that trafficking must be proven for a penalty to be given.
It is important to mention Art 220 of the (Código Orgánico Integral Penal, 2014)which
mentions the penalties for illicit trafficking of substances of Minimum scale of one to
three years, Medium scale of three to five years, High scale of five to seven years and
Large scale of ten to thirteen years. This clarification within a legal body prevents the
application of extreme penalties as existed in previous laws (Resolution 001-CONSEP-
CO-2013).
The Reform allowed for the correction of the existing Penal System, since the principle
of favorability was applied, resulting in the release of more than 2,000 people arrested
for minimum and medium scale trafficking, decongesting the prisons.
Now, problems began to be encountered with respect to the interpretation of the
tables, which led to the decision to change the table, especially when there was a large
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consumption of the substance known as "H", giving way to the Ecuadorian Government
to resume the high penalties and not to differentiate between consumers, drug addicts
and micro-traffickers, which had already been achieved. New thresholds for substances
and their possession were created.
As the 2013 thresholds for consumption are in force, the amount that a person can
possess or have for heroin use is 0.01 grams; however, the counter-reform establishes
that 0.01 grams of heroin will be the parameter from zero to consider the existence of
minimum scale trafficking. (Paladines Rodriguez, 2015).
This counter-reform has caused consumers to be considered micro-traffickers because
the table takes such low amounts for personal consumption to differentiate the
consumer from a possible crime, this is one of the benefits of establishing a table of drug
possession or carrying, but it is emphasized that within the country there is a table with
a low threshold in comparison with other countries. It is also necessary to establish that
these tables are made or established with the purpose of making it easier to establish
the people who are trafficking, this has been said, but in practice it has generated more
problems than solutions and has not achieved its objective, but has created confusion
within society and the authorities.
Thresholds for possession or carrying of substances for personal
consumption in other countries.
To approach this comparison, cannabis, which is one of the most consumed drugs, will
be taken and its possession or possession allowed in other countries will be analyzed to
show the existing difference in the threshold in Ecuador compared to other countries.
Starting with Colombia, the permitted dose for personal use is no more than 20 grams.
(Castañeda M, 2020, p. 20).In the case of Mexico, the percentage of possession or
carrying is 5 grams (Gómez, 2019, p. 43). (Gómez, 2019, p. 43).On the other hand,
Uruguay establishes a maximum of 40 grams for personal consumption for one month
and there are three ways to obtain cannabis, either by sale in pharmacies, by self-
cultivation (6 female plants are allowed) and by membership clubs, which are a new way
to commercialize cannabis (Corda & Filomena, 2019, p. 43). (Corda & Filomena, David.,
2019, p. 9)Finally, we take the example of the Netherlands, a very developed country in
the issue of consumption or possession of drugs such as cannabis and its
commercialization.
Another example is Holland has created a consumption policy that seeks to
decriminalize consumers and give them an ease when consuming and "safe" places to do
so, thus achieving that the State has control of the places that commercialize cannabis
through the well-known "coffeeshops" where 5 grams per person per day are sold, these
are places for consumers to have safe access to cannabis and prevent them from coming
into contact with other types of drugs that are prohibited in the country. (Gómez, 2019,
p. 45).. This country aims to avoid the criminalization of consumers by establishing high
thresholds for possession or carrying of drugs for the consumption of drug-dependent
people.
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Difference between drug addicts and consumers.
Within the work, it is necessary to establish the difference between these two types of
people involved in the issue at hand. First of all, we start by defining what drugs are, for
the World Health Organization they are
any therapeutic or non-therapeutic substance that, when introduced into the body by
any route of administration (inhalation, ingestion, friction, parenteral or intravenous
administration), produces an alteration, in some way, of the natural functioning of the
individual's central nervous system and is also susceptible to creating dependence,
whether psychological, physical or both, according to the type of substance, the
frequency of consumption and permanence over time. (Drug Dependency Prevention
Program, 2022).
Substance addiction (substance use disorder) is a disease that affects a person's brain
and behavior, and results in an inability to control the use of illicit drugs or medications.
(Medline Plus., 2021)
We understand that drug addiction is defined as the frequent consumption of narcotic
drugs or psychotropic substances that become addictive in a short time, also defined as
a chronic disease suffered by people dependent on substances despite the damage it
causes. (Medline Plus., 2021). Drug addiction is the compulsive use of a drug voluntarily
with knowledge of the health consequences.
On the other hand, we have substance users, defined here as people who consume
substances casually and in a controlled manner with a self-control of the substances,
often used recreationally using soft drugs such as marijuana or cannabis.
Criminalization of consumers.
It is understood why the States seek the necessary measures to fight against drug
trafficking, as it is a problem that remains over time, creating anti-drug policies and tables
of possession or carrying of these substances, taking as a reference what is established
by the International Organizations regarding this issue.
These agencies seek to eliminate narcotic and psychotropic substances, but among the
struggle to eradicate these substances, there is little interest in consumers and the
criminalization they suffer for being drug addicts and having the need to carry a substance
for personal consumption. This creates a fine line between regulating drug use and
people's freedom, taking into account that Ecuador's Constitution establishes that
addictions are a health problem and not a criminal issue.
Ecuador, as a measure to divide between consumers and traffickers, created the Drug
Table, but the thresholds for possession or carrying, as we have already seen, are very
low compared to others, giving rise to another problem and making it difficult for the
justice system to differentiate between consumers seeking to satisfy their dependence
on these substances and traffickers whose objective is to commercialize narcotics.
Constitution of the Republic of Ecuador.
Article 364 of the Constitution states that addictions are a problem that corresponds
to public health and therefore, it is the responsibility of the State to seek public policies,
develop information and prevention programs, offer treatment and rehabilitation to help