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Proposal submitted to regulate the “progressive use of force” through a single organic law

Published on April 21, 2021

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Ecuador has penal reforms for police officers and prison guides on the subject and regulations for the military, the application of which is being analyzed by the CC.

The Government is seeking, through a single organic law, to regulate the progressive use of force in all security institutions: National Police, complementary security entities of the Executive Function, Customs Surveillance Corps, Traffic Commission Surveillance Corps Ecuador, Penitentiary Security and Surveillance Corps, complementary security entities of local governments (Control Corps, Corps of Civil Traffic Agents, Firefighters), and Armed Forces (in states of exception and complementary tasks to the Police).

According to the proposal, the Police will be able to make progressive or rational use of force privately in the face of violent crowds; the other entities outlined in this law will act as support if necessary, within the framework of their powers; the Armed Forces will act in states of exception and also in complementary support of the Police.

Two current regulations, but one may be illegal

At the moment there are two regulations in force on the progressive and rational use of force. Starting with the Police and the prison guards, via the penal reforms of December 2019, the Assembly added an article for the fulfillment of the legal duty of the members of the National Police and prison security.

It established that there is compliance with the legal duty when the officers in question, “under the protection of their constitutional mission, in protection of their own or other people’s right, cause injury, damage or death to another person,” meet three requirements: that they perform in acts of service, that they use progressive, proportional and rational use of force and that there is an imminent threat or risk to the life of third parties or to their own, or to protect a legal asset.

As for the military, there is the Ministerial Agreement 179 on Defense; however, there is a question of its legality and constitutionality, and its possible violation of human rights, so its validity has been suspended until the Constitutional Court rules on the lawsuits of unconstitutionality filed against it.

This regulation, which establishes five levels of the progressive and rational use of military force to be applied in states of exception, decreed by the Government, considers the use of lethal weapons at “level five.”

Those same five levels are established in the bill presented this week by the Minister of Government, Gabriel Martínez, and the general commander of the Police, Tannya Varela, but for all the security forces in question.

Level one is the presence of the officer to demonstrate authority and deter; the second level is verbalization; the third level is physical control to neutralize passive resistance; level four are non-lethal defensive techniques to neutralize violent resistance and non-aggression; and level five, is the potential lethal force to “neutralize the violent unlawful action or lethal aggression of one or more people, in order to safeguard the life of the server or a third party.”

The proposal says that “the National Police will apply the progressive or rational use of force to neutralize and, preferably, reduce or mitigate the level of threat, risk, resistance, aggression or attack, of one or more persons subject to the specific procedure, avoiding the increase of said actions, for which they will use as far as possible means of dissuasion and conciliation before resorting to the use of force.”

The Executive’s initiative includes, among the principles, respect for human rights and transparency, and among the principles of progressive or rational use of force, legality, necessity and proportionality. In addition, the criteria of opportunity and rationality.

October protests, prison riots raised question of “progressive force”

The protests of October 2019 and the murders in prisons set off alarms about the role of the military, police, prison guards and other security officials at the national and local level in times of crisis, and also in specific cases such as the murder of a woman on public roads and with the presence of policemen.

The progressive use of force by the military, police and prison guards is an issue whose discussion has accelerated in recent years in Ecuador, in political, military, police and human rights circles.

In addition, there was another bill presented by the Vice President of the Assembly, César Solórzano (SP), in February of this year, to include the Armed Forces (FF. AA.) in the control of citizen security and maintenance of peace.

The colonel of the Police General Staff in passive service and Assemblyman César Carrión, feel that the latest proposal presented by the Government and the Police is poorly planned and does not have the necessary consensus of the people involved. In addition, they say it should start with penal reforms.

“The penal reforms of 2019 explain that the police and penitentiaries do not commit a crime in the line of duty, those who injure, cause death or injury to third parties (…) the bill they present (Government and Police) seems to me a duplicity first, and second, there is a lawsuit of unconstitutionality that is pending for (the regulation of) the Armed Forces. AA. (…) and we would have to wait for a resolution in that part,” said the assemblyman.

For Carrión, the issue deserves a deep analysis and he does not understand how, at the end of the government and legislative period, they presented this bill, if even with the reforms approved in 2019, the police have not been trained or trained to apply them.

Ricardo Camacho, a security analyst, pointed out that the basic principles of the use of force arrived in Ecuador at the end of the 90s, and there should be only one law for this issue. He said it is interesting that they have presented it like this; however, socialization is needed with all the institutions in charge of managing the use of force in the country.

“There must be an agreement between all the State institutions that handle the use of force to present a single law (…) When that bill is discussed in the Assembly, it will surely have problems because it has not been discussed with all of them. In that law it must be completely clear, without a doubt, when the officer can shoot,” he said.

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