The notion of economic crime as a mere classificatory category: A critical analysis from a substantive and procedural perspective

Abstract

This paper questions the notion of economic crime introduced by Act No. 21.595, with regards to its use as a purely classifying category established to make possible the application of a special regime on punishment determination in the case of individuals considered guilty of offenses within the second, third and fourth categories. To this end, this paper challenges two theses as essentially problematic. On the one hand, that which sees the criterion of “corporate involvement” as a mere factor conditioning the characterization of a crime as economic, in order to make a special regime on sentencing applicable. And on the other hand, that which, assuming that the new rules have a sense of “sentencing”, argues that the debate over the characterization of a crime as economic must be held at the sentencing hearing foreseen in Article 343 of the Criminal Procedure Code. Accordingly, a critical assessment of both theses is carried out, both from a substantive and procedural viewpoint. Then, it is concluded that the criterion of corporate involvement must be understood as an element of the statutory definition of the offense that has been incorporated to the offenses involved at the base, a solution that should allow overcoming the above mentioned criticisms so that the new category can be legitimately applied.