La delincuencia organizada y los mecanismos de extorsión

This research analyzes the criminal justice response to the rise in extortion linked to organized crime in Ecuador, with an emphasis on the legal difficulties in distinguishing between intimidation, attempted extortion, and completed extortion when no actual transfer of assets occurs. The objective was to examine the legal structure of these behaviors, determine the application of the concept of attempted extortion, and establish the consequences of different legal classifications with respect to legal certainty, proportionality, and due process. A qualitative approach was used, employing a documentary design and legal-dogmatic, interpretive, and systematic methods, through the study of the Constitution, the Comprehensive Organic Criminal Code, legal doctrine, institutional data, and jurisprudence from the National Court of Justice and the Constitutional Court. There is a clear and sustained increase in extortion reports filed with the State Attorney General's Office, rising from 2,080 in 2020 to 23,087 in 2024, according to the statistical series used in this research. These figures represent only reported cases and not actual court proceedings or convictions, and therefore cannot, on their own, determine the effectiveness or ineffectiveness of criminal reforms. The study also identifies that harsher penalties do not replace the institutional capacity to investigate the crimes, protect victims, track the proceeds, and identify the structures that direct extortion operations. The main finding relates to the structure of Article 185 of the Comprehensive Organic Criminal Code, whose verbs "demand or compel" can create difficulties in determining when the crime is consummated, even if the threat affects freedom but the financial loss does not actually occur. This situation favors reclassifying the conduct as intimidation, despite the demonstrated economic purpose, or attributing a completed extortion without proving the elements corresponding to the imputed modality. It is concluded that Article 39 of the Comprehensive Organic Criminal Code (COIP) allows for the application of attempted extortion when there are suitable and unequivocal acts directed toward the commission of the crime, and the consummation is thwarted by causes beyond the perpetrator's control, provided that the classification considers the operative verb, the acts carried out, and the elements actually proven.