El principio de proporcionalidad como límite a las medidas cautelares en el procedimiento de ejecución coactiva de la Contraloría General del Estado

Abstract

Abstract

Coercive enforcement allows Ecuador’s Office of the Comptroller General (CGE) to collect debts arising from its own civil-liability rulings, restricting the debtor’s assets before any judicial ruling. The aim was to determine what the principle of proportionality requires of that power and how far Ecuadorian law gives it operative form after the 2026 regulatory reform. A qualitative doctrinal-legal design was used, applying hermeneutic, analytical, and comparative methods to the applicable normative framework, the Regulation on the Exercise of the Coercive Enforcement Power (Resolution 007-CG-2026), Constitutional Court judgment 1158-17-EP/21, and three Inter-American Court of Human Rights judgments. Results reveal five asymmetries: article 281 of the Administrative Organic Code (COA) exempts the officer from any prior procedure, whereas articles 181 and 190 of the same Code and article 125 of the General Organic Code of Procedure require proof of risk, an exemption that article 35 of the Regulation reproduces; the quantitative cap in article 283 only requires correcting excess already incurred; ex officio review is triggered by payment rather than by the disappearance of risk; the list of non-attachable assets in article 48 is not declared applicable to precautionary measures; and article 26 requires reasoned justification of the proportionality of the guarantee offered by the debtor, while article 35 omits it for the measure restricting them. The legal order operationalises the principle only in part, so that the proportionality of measures cannot be verified. A four-stage, thirteen-sub-question test anchored in existing provisions is proposed and applied to two scenarios.