Draft bill 26.

Summary.

The draft bill adds Article 64-A to the Criminal Code to prevent a prison sentence imposed for unjustified enrichment under Article 351 from being substituted, replaced or converted into home detention. As an exception, the Sentence Enforcement Judge could authorize home detention on extraordinary humanitarian grounds supported by an assessment from the Institute of Legal Medicine and Forensic Sciences (Instituto de Medicina Legal y Ciencias Forenses). In a reasoned decision, the judge would have to find that the convicted person’s physical or mental condition is incompatible with serving the sentence in a correctional facility.

The amendment to Article 65 of the Criminal Code allows the Trial Judge or Sentence Enforcement Judge to order community service for a person sentenced to, or serving, a prison term of no more than 5 years. If ordered by the Sentence Enforcement Judge, approval from the Penitentiary Technical Board (Junta Técnica Penitenciaria) would be required. Community service requires the beneficiary’s written consent and would take place only in public health or educational institutions, public benefit programs, public space restoration, supervised community services or disaster relief. Under the general rule, 1 day of imprisonment is credited for every 5 days of work performed.

For people convicted of unjustified enrichment, the proposed Article 65 credits 1 day of imprisonment for every 10 days of community service. That work would preferably be performed in public benefit programs, entities or activities related to transparency, civic education, institutional strengthening, community assistance, public space restoration or services of social interest, under the supervision of the Sentence Enforcement Judge. Community service would not release the sentenced person from fully restituting the unjustified increase in assets or from other civil, criminal or administrative liabilities. The article also excludes the application of these conditions to a person sanctioned for an offense against sexual freedom and integrity committed against a child under 14 years of age.

The new Article 351-A would require every person convicted of unjustified enrichment to restitute to the State the entire increase in assets for which they could not establish a lawful origin. Restitution would cover 100% of the property, money, securities, rights, returns, interest, proceeds or benefits obtained directly or indirectly through the offense. If liquid funds were insufficient, the competent judge could order enforcement, sale, adjudication or another lawful means of realizing the convicted person’s assets, while respecting due process and the rights of good-faith third parties.

The obligation would be enforceable from the conviction and would remain in effect while any balance was outstanding. Fulfillment would be required to access correctional and post-release benefits or mechanisms for reducing, modifying or alternatively serving the sentence, except for strictly humanitarian exceptions granted through a reasoned decision. Restitution would coexist with forfeiture, asset forfeiture proceedings, fines, disqualification from public office and other consequences provided for by the Political Constitution, the Criminal Code and special laws. The draft bill restates the additions and amendment to the Criminal Code and provides that it would take effect upon promulgation. Its provisions concern the competent judges, the forensic and correctional institutions mentioned, people convicted of the specified offenses, good-faith third parties and State assets.