El dolo eventual y su aplicación en el sistema jurídico ecuatoriano

Abstract

This research analyzes the theories of eventual malice in criminal law, with an emphasis on their application in the Ecuadorian legal system. The study begins with a central issue: the lack of express regulation of eventual malice in the Comprehensive Organic Criminal Code (COIP, by its Spanish acronym) of Ecuador, which leads to legal gaps and inconsistencies in jurisprudence—mainly in cases where the perpetrators assume serious risks to protected legal interest such as life, health, or the environment, and are not adequately punished due the absence of direct intent. Through a comparative analysis of doctrinal theories, it will be identified that the combination of Claus Roxin (normative decision against the protected legal interest) and Günter Stratenweth (taking the risk seriously) proposals offers the most appropriate framework for Ecuador. This hybrid theory overcomes the limitations of classical approaches based on subjective will by prioritizing awareness of the risk (e.g., ignored technical reports) and conscious acceptance of the outcome (e.g., prioritizing profits over safety measures). The study demonstrates through landmark cases in Ecuador that the courts often classify behaviors as recklessness that, under the Roxin-Stratenweth theory, should be considered eventual malice. This leads to impunity and fails to protect constitutionally protected legal interests (Article 66 of the Constitution). As a central proposal, a reform to the COIP is proposed to incorporate eventual malice under the definition “A person acts with eventual malice when, in spite of foreseeing the high risk of harming a protected legal interest, decides to carry out the action or omission, accepting such outcome as a probable consequence.”