Categorization of industrial vessels to prevent constitutional vulnerability, pursuant to the application of the sanctions stipulated in the reform of the Organic Law for the Development of Aquaculture and Fisheries.
The current Fisheries Law was approved as part of the Ecuadorian government’s effort to protect tuna exports to Europe in the medium and long term. Furthermore, a direct investment of approximately $18 million was announced to improve the control and monitoring of fishing activities. Consequently, the reform of the Organic Law for the Development of Aquaculture and Fisheries, considered a national landmark, aims to establish a legal framework in harmony with the principles and rights established in the Constitution of the Republic for the development of the country’s aquaculture and fishing activities.
Therefore, and within the legal framework subject to constitutional principles and those outlined in the reform of this Law, it is evident that both the rights stipulated in our Constitution and those established in the Fisheries Law are being violated. Currently, the fishing sector in our country is severely affected by the disproportionate fines imposed since the reform of the Organic Law for the Development of Aquaculture and Fisheries. The governing body opens administrative proceedings with fines of approximately $80,000 for vessels considered industrial due to their fishing gear, even though these vessels are only about 17 meters long, have an engine power of 180 hp, and a gross tonnage of 52.36 kg, with a market value of around $60,000. These proceedings are based on the grounds of fishing activity in an unauthorized area, using as the sole evidence information provided by the Satellite Monitoring Center (CMS). This information indicates that the vessel is within 8 nautical miles and is not considered to be in transit, but there is no evidence that it is fishing within this area, which is prohibited for industrial vessels.
In this regard, this type of event violates our Constitution, given that it has not been proven that fishing activity took place within the 8 nautical mile zone. Furthermore, the National Navy is not being assisted in verifying the fact and improving the control and surveillance of fishing activities, thus preventing the provision of irrefutable evidence and proof of the species and quantity caught by the vessel within the prohibited 8 nautical miles for industrial vessels. Consequently, the disproportionate fines imposed on these types of vessels violate due process, which states: “The law shall establish due proportionality between infractions and criminal, administrative, or other sanctions.” This also contradicts the Organic Law for the Development of Aquaculture and Fisheries, which states:
Art. 192.- Criteria of Proportionality. Sanctions will be imposed with due justification, taking into account the following criteria: the severity of the infraction, the nature and extent of the damage, whether fragile, protected, or endangered ecosystems or species are involved, the size and power of the vessel, the possibility of restoring the damage, the economic benefit obtained or expected to be obtained by the alleged offender as a result of their action or omission, and any existing mitigating or aggravating circumstances.
The principle of proportionality, as established by the Organic Law for the Development of Aquaculture and Fisheries, which imposes such fines, and which has not properly categorized these types of small industrial vessels, must be considered in relation to the proportionality of the vessel’s size and power. This ensures that the corresponding fine in administrative decisions is appropriate to the purpose intended by the legal system and is adopted within a framework of fair balance among the different interests, as also established by the Organic Administrative Code.
Consequently, our fishing sector needs to be able to work and its right to do so must not be violated, since the reform of the Organic Law for the Development of Aquaculture and Fisheries offers us greater guarantees for exporting our products to the European Union and the international market. However, in our country, certain small industrial vessels, due to their size and commercial value, are subject to arbitrary and unpayable fines, stipulated in administrative resolutions pursuant to the reformed Law. Even if those sanctioned sell their vessels, it would be impossible to cover these fines, consequently leaving many families who depend on fishing, their primary source of income, without work.