La omisión normativa en el artículo 42 del COIP y su repercusión en la responsabilidad penal del autor mediato en delitos de corrupción y crimen organizado

Abstract

This paper examines the implications of the omission of Article 42 of the Ecuadorian Comprehensive Organic Criminal Code (COIP, by its Spanish acronym) regarding the indirect perpetrator, and the impact this generates on criminal liability in cases of corruption and organized crime as complex offenses. The absence of this regulation creates gaps that hinder criminal prosecution, particularly in relation to those at the top of the hierarchical structure of crime. This situation has led to an imbalance in the application of the principle of legality, affecting both the function of Criminal Law and the function of judicial predictability. This study, based on a qualitative and doctrinal analysis, focuses on the examination of legislation in countries within the region, as well as the doctrine of control over the act developed by Claus Roxin. The lack of regulatory measures concerning indirect perpetration results in the inability to attribute criminal responsibility to individuals who exercise authoritarian control as leaders of a crime. This issue creates a breakdown that undermines trust in the justice system. In order to address the gap regarding indirect perpetration in the COIP, this paper proposes a training in judicial leadership and the development of other additional strengthening measures. This work highlights that the concept of indirect perpetration must be clearly defined, so that the Ecuadorian criminal justice system is perceived as effective in addressing crimes of power and in combating organized crime.