The Prosecutor’s Office has reached with its investigations of corruption cases of the previous Government, at the highest level of the Executive, which has allowed sentences against former President Rafael Correa and his vice-president Jorge Glas, as well as senior officials and businessmen.
But despite the penalties imposed, so far most companies involved in handing over bribes to officials have not been penalized.
For example, the multinational Odebrecht acknowledged that it paid around $ 50 million in bribes to get contracts with the State, according to the prosecutor Íñigo Salvador. Despite this, there are no legal actions to sanction the company.
This is despite the fact that article 49 of the Organic Comprehensive Criminal Code (COIP) defines that national or foreign legal persons under private law are criminally responsible for crimes committed for their own benefit or that of their associates.
Inquiries are currently in process – by contracts made during the health emergency, with alleged price premiums – to different sectional governments.
In those investigations is the Prefecture of Guayas, where irregular payments were evidenced.
The Prosecutor’s Office has identified 11 suspects, but there is also no fiscal impulse against the companies that were used to commit the alleged crimes.
The jurist Antonio López, an expert in economic criminal law, opined that in the judgment against the former president and former vice president of the Republic and 10 legal representatives of companies for the crime of bribery, it is striking that none of the construction firms were included in the process penal.
This is so that they are subject to the sanctions contemplated by COIP itself , with the antecedent that there is already a sentence for money laundering that was followed by the legal entities Diacelec and Conacero, used to receive money from Odebrecht.
The judges of the Pichincha Criminal Court, on February 12, decided to sentence businessman Édgar A., as direct author, to seven years in prison, and Juan B. and Gladys A., as co-authors of the crime of money laundering, for which should pay a fine of $ 29,204,476 and resolved the dissolution and liquidation of the listed companies.
However, López assured that there is no law in the national legal cadastre that ensures civil reparation to the country as a consequence of acts against the public administration or as a consequence of committing corruption crimes attributable to legal entities.
Likewise, there is no legislative evidence that enables the Attorney to hold conversations or acts in good faith with corrupt companies or that have publicly recognized criminal offenses against the State.
López remarked that the existence of a collaboration agreement between the Brazilian construction company Odebrecht and the State, signed by former prosecutor Carlos Baca Mancheno , should not limit the action of the Prosecutor’s Office to criminally prosecute said company.
The problem in the country is that there is no legal framework that allows, for example, the Attorney General’s Office, to negotiate reparations before there is a sentence, such as the case of Odebrecht, which accepted the commission of a fault.
The lawyer Ramiro García recalled that the criminal liability of legal persons entered into force in 2014, with the approval of the COIP, so it could not be used to sanction companies involved in the Bribery case.
He indicated that currently the Prosecutor’s Office can initiate parallel processes against companies that are used to commit some type of crime.
The COIP contemplates the sanctions that mainly seek to guarantee comprehensive reparations to the State, which includes definitive liquidation of legal status.
Analyst Gabriela Rosas commented that adjustments should be made in criminal matters with laws, such as the Extinction of Domain, that take into account the repatriation of capital that comes out of corruption.
“There are no sanctions for legal entities, which gives the feeling of concealment and we feel that the country always loses.” (I)
Law to recover assets
At the moment it is difficult to recover the resources that corrupt officials take away, since many times they take money from tax havens or acquire goods on behalf of third parties.
To avoid this, the Assembly’s Citizen Participation Commission advances with the Domain Extinction Law.
“It is a real tool to combat corruption and organized crime,” said independent Assemblyman Fabricio Villamar previously.
He explained that the unjustified origin or illicit destination of the assets must be directly or indirectly related to the following criminal types: crimes against the efficiency of the public administration and against the development regime.
Also those related to the illicit production or trafficking of controlled substances; economic crimes: against citizen responsibility; and terrorism and its financing.
For this to happen, a judicial system must be implemented with specialized judges and prosecutors.
The regulations clarify that the application of the declaration of ownership in favor of the State will be given by judicial decision on the assets, regardless of who owns them or has acquired them and it is shown that they have an illicit origin.
The project that the Commission is discussing includes that the extinction of domain is imprescriptible, autonomous and independent from the criminal action and from any declaration of responsibility.
Sara Salazar, a consultant at the International Republican Institute, pointed out that this legal tool will serve not only to combat administrative corruption, but also any illegal activity that allows the illegal accumulation of personal or real property, assets or liabilities.
He indicated that with the regulations it will be possible to repatriate illegal money that leaves the country, as a result of corruption.
He clarified that the extinction of domain investigates the patrimony, not the person; For this reason, he suggested that the illegal activities to be contemplated be clearly defined.
Regarding the delivery of rewards for those who report illicit enrichment, he expressed that he does not agree, because-in most cases- those who report are the same criminals. (I)