Asimetria normativa y sus complicaciones en la determinacion sancionatoria pesquera conforme al principio de proporcionalidad

Abstract

Ecuador's fisheries sanctioning regime is structured around three levels of severity, applicable to all operators engaged in fishing activities. Article 218, however, introduces an internal sub-graduation mechanism that divides each level into minimum, medium, and maximum grades, operationalizing the proportionality criteria established in Article 192 for industrial fishing vessels. This structure is absent from Articles 217 and 220, which apply to artisanal fishers and fish processing establishments respectively. Through a dogmatic-normative approach, this study describes and contrasts the fishery sanctioning architecture, demonstrates that the absence of sub-graduation shifts sanctioning determinations toward spheres of unstructured administrative discretion and broader decision-making latitude, and assesses this finding under the proportionality test as a constitutional review standard. Based on this analysis, the study evaluates the legal feasibility of a normative intervention and concludes by formulating a lege ferenda proposal to extend sub-graduation to the excluded operators, incorporating business-scale criteria for processing establishments and attenuation/aggravation rules for artisanal operators, with an express requirement of reasoned justification.