40
procedure that was subject to judicial control. Following this control, the judge could
order the deposit of the property in a specific State agency, CONSEP, and, as this Act
established, the property was available to the judge to “verify the material evidence of
the crime.” The deposit was maintained until the judge ordered the respective return, if
admissible.132 As has been indicated (supra paras. 175 and 176), in the instant case, the
precautionary measures of seizure, deposit and prohibition to dispose of property were
applied.
186. The Court observes that these material precautionary measures are expressly
regulated by law. Given their precautionary nature, they are subordinate to the
requirements for personal precautionary measures, such as preventive detention (supra
para. 93) and thus are compatible with the presumption of innocence in the same way as
the latter (supra paras. 145 and 146). Bearing in mind the abovementioned Ecuadorean
normative, as regards the purpose of these measures, the Court understands that, they
seek: (i) to avoid the property continuing to be used in unlawful activities; (ii) to ensure
the success of the criminal investigation; (iii) to guarantee the pecuniary responsibilities
that could be declared as a result of the legal actions, and (iv) to avoid the loss or
deterioration of the evidence. It is evident that these measures are adequate and
effective to ensure the availability of the evidence that will allow drug-trafficking crimes
to be investigated.
Art. 171. […] The precautionary measures of a material nature are the prohibition to dispose of
property, and seizure, retention and embargo. These measures are in order only in Cases
indicated in this Code and in the special laws.
132
The NDPSA in force at that time stipulated:
Article 104. Seizure. The National Police, through their specialized technical agencies shall be
responsible for the control and investigation of the crimes defined in the Act, the detection and
arrest of the transgressors, the monitored handover of controlled substances or property and the
immediate seizure of:
[…]
c) Property and objects used for the storage and conservation of controlled substances, and of
the vehicles and other means used to transport them;
d) Money, assets, monetary instruments, banking, financial or commercial documents, and other
property that are considered to be the product of the perpetration of the acts defined in this Act.
[…]
Article 105. Those who carry out the seizure […] shall identify all the movable and immovable
property, substances, money, assets, monetary instruments, banking, financial or commercial
documents; and the alleged owner or owners, in separate official records, which they shall remit
to the criminal judge in the following 24 hours. When issuing the court order to investigate the
alleged crime, the judge shall order the deposit in CONSEP of everything that has been seized,
including narcotic and psychotropic substances, precursors and other specific chemical products.
This property and material shall be at the order of the competent judge for verification of the
material evidence of the offense. […]
[…]
Article 119. Precautionary measures. In the court order to investigate the alleged crime, the
applicable precautionary measures of a personal and material nature established in Article 171 of
the Code of Criminal Procedure shall be ordered and, in particular, the prohibition to dispose of
the property of the accused and the freezing of his bank and money accounts and company
stocks and shares.
Article 83 of the Regulations for the application of the NDPSA established that: “[T]he annulment of the
precautionary measures established in Article 105 of the Act shall be issued by the judge of the case, following
the favorable opinion emitted by the Attorney General’s Office Cf. Regulations No. 2145-A for the application of
the Narcotic Drugs and Psychotropic Substances Act, published in the official gazette of the Government of
Ecuador of March 7, 1991 (file of appendixes to the application, appendix 35, folio 1190).
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