The principle of minimal criminal intervention is one of the main pillars of modern criminal law. This principle refers to the fact that the use of all state criminal apparatus is legitimate provided that two conditions are met: first, that it is strictly necessary for the protection of individuals; and second, that extra-criminal mechanisms have not been sufficient to provide this protection.
Minimal criminal intervention is part of the Ecuadorian legal system, but its practical application is questionable.
The Comprehensive Organic Criminal Code expressly provides for this in Article 3, stating that “criminal intervention is legitimate as long as it is strictly necessary for the protection of persons. It is a last resort when non-criminal mechanisms are not sufficient.” In other words, this principle seeks to make criminal law the last resort and, if there is a possibility of resolving a conflict through less burdensome means, such as civil or administrative proceedings, these should be used before resorting to the punitive power of the State. This is precisely because the idea is to avoid abuse, but above all to avoid setting the entire criminal apparatus in motion for cases that could be resolved and protected by other means.
However, in practice in Ecuador, this principle faces problems in its application. Often, behaviors or acts that could be resolved in administrative or civil courts, through alternative dispute resolution mechanisms, or that even lack criminal relevance, end up entering the criminal justice system. It is common in Ecuador (and regrettable, above all) for the filing of complaints and the activation of the entire criminal justice system to be used as a means of intimidation, a means of reaching an agreement, or simply the result of malpractice by legal professionals, which ultimately amounts to an abuse of the law.
Failure to comply with this principle has clear and very serious consequences for the state criminal apparatus, generating procedural overload in the Public Prosecutor’s Office and the judicial bodies, and saturating cases that take away resources and time from the investigation and prosecution of truly serious crimes (which do have criminal relevance). This not only inevitably compromises the effectiveness of the criminal justice system (delaying cases indefinitely, which end up being shelved), but also results in violations of due process. It is for this reason that prosecutors have an important tool provided for in the Comprehensive Organic Criminal Code: the principle of opportunity. This mechanism allows the Prosecutor’s Office to refrain from initiating a criminal investigation or to withdraw from one already initiated, provided that the requirements established in the regulations are met. Its correct application is ultimately an ideal way to avoid unnecessary investigation and subsequent prosecution of conflicts that can be resolved by less burdensome mechanisms outside the criminal sphere.
En conclusión, la mínima intervención penal no solo es un principio previsto en la norma penal, sino un indispensable para un sistema penal equilibrado y legítimo. Para fortalecer su efectiva aplicación, es esencial que el Estado promueva mecanismos extrapenales eficaces y que los fiscales hagan uso adecuado de todas las herramientas contempladas en el ordenamiento jurídico. Solo así será posible evitar el uso desmedido del Derecho Penal y garantizar que este opere realmente como un recurso de última ratio.
In conclusion, minimal criminal intervention is not only a principle enshrined in criminal law, but also indispensable for a balanced and legitimate criminal justice system. To strengthen its effective application, it is essential that the State promote effective extra-criminal mechanisms and that prosecutors make appropriate use of all the tools available under the law. Only in this way will it be possible to avoid the excessive use of criminal law and ensure that it truly operates as a last resort.
