An Antinomy Concerning Commissive And Omissive Torture In The Coip: A Dogmatic And Legal Theory Examination

Abstract

This research studies the legal configuration of the crime of torture as it is typified in the Ecuadorian Comprehensive Organic Criminal Code (COIP). Its content and form of execution focus attention on a significant normative tension: the one existing between the general clause of commission by omission (Art. 23) and the specific type of omissive torture (Art. 151, final paragraph). The legal issue arising from this criminal contraposition lies in the punitive disparity, because the precept of Art. 23 establishes that the omission of the guarantor that proves its commission is equivalent to producing the result (which, translated to the corresponding penalty, would be 10 to 13 years), while the article on torture in its last paragraph concludes the inaction of the public servant with a much lower penalty of 5 to 7 years. Likewise, this thesis concludes that the inaction of the official with the competence to avoid the suffering through the handling of the torture type should not be considered merely as one more criminal type of breach of institutional duty. Finally, a jurisprudential interpretation of great relevance is proposed to implement the precedence of international human rights standards and avoid automatic outcomes of the application of the favorability principle, which translate into a relative impunity for those acts of torture and humiliation that assault human dignity.