The New Criminal Policy for Asset Recovery in Corruption Cases: Legal Treatment of Forfeiture in Ecuador and Spain

Abstract

In order to prevent white collar criminals from enjoying the economic benefits that their behavior has generated, certain legal systems begin to give importance to confiscation, a doctrinal figure abandoned until the emergence of the new criminal asset recovery policy. The expansion of the criminal law, and with it the typification of new criminal types, as well as new modalities of accessory  onsequences, in a certain way respond to the compliance of policies of international organizations. In the European Union through Directive 2014/42 / EU, on the seizure and forfeiture of the instruments and proceeds of crime, it is intended to achieve harmonization in terms of recovery of property, which has led to the incorporation of confiscation without sentence, expanded confiscation and confiscation of third-party property. Thus, making confiscation the main objective of criminal intervention, a situation that has led other countries such as Ecuador to consider the implementation of confiscation without judgment and confiscation of third parties which is in debate within the Anti-Corruption Law Project. Currently, Art. 69.2 of the Ecuadorian Comprehensive Criminal Code, 
considers confiscation as a restrictive property penalty, being unable to recover property until there is a condemnatory sentence, which in certain cases guarantees the constitutional principles, but in other cases it is not more than a barrier to curb corruption.

Keywords: Confiscation, asset recovery, domain extinction, corruption, expansion.