With vast support from all sectors, the processing of the Draft Law that systematizes Economic Crimes and attacks against the Environment, amends various legal bodies that typify crimes against the socioeconomic order, and adapts the penalties applicable to all of them.
By Carlos Fiedler
The above, according to Bulletin No. 13.205 of the Commission of Constitution, Legislation, Justice and Regulations of the Chamber of Deputies. Without prejudice to the fact that, the project is still in discussion stage, it should be noted that its purpose is to better regulate the defrauding of social expectations regarding “neck and tie” crimes and, therefore, its processing has received a quite transversal support.
In this sense, we can say that the regulation of economic crimes is something recent in our legislation. And it is that in 1874, at the time of the enactment of the Penal Code that currently governs us, no one imagined the evolution that the economy would have or the new forms of crime that certain individuals could use to enrich themselves illicitly, such as, through the crimes of bribery or incompatible negotiation. Therefore, the penalties associated with these types of crimes have historically been low and, in the eyes of society, there is no proportionality of the sanction in relation to the damage committed by this type of illegal act.
Due to the foregoing, since 2009 regarding the promulgation of Law No. 29.393 that establishes the Criminal Responsibility of Legal Persons – motivated in the first instance so that Chile could enter as a full member of the Organization for Economic Cooperation and Development (OECD) – A legislative agenda is being developed in Chile regarding the sanction of crimes that affect probity and public and private assets. Thus, for example, Law No. 21.121 of 2018 has been enacted, which modifies the Penal Code and other legal regulations for the prevention, detection and prosecution of corruption, and Law No. 21.132 of 2019, which modernizes the National Fisheries Service (Sernapesca) and that incorporated new crimes into Law No. 20.393, such as the crime of water contamination and the crime of commercialization of prohibited products, among others.
Thus, the bill that amends the Law No. 20.393 incorporates, among other modifications, the following: /i/ new crimes that allow criminal liability to be attributed to legal persons; /ii/ creates a new mitigation for the adoption of effective measures to prevent the repetition of the same type of crime under investigation; /iii/ incorporates a new aggravating circumstance of instrumental use of the legal entity for the commission of crimes, and /iv/ expressly regulates the possibility of initiating the investigation of the crimes of said law by complaint or complaint and establishes the sanction of appointment of judicial controller.
Regarding the latter, the project considers a new article 12bis in Law No. 20.393 already mentioned and which was analyzed by the Ministers of the Supreme Court, according to Official Letter No. 69-2020. In this regard, they indicated from the Supreme Court various objections regarding the origin of the appointment of judicial controller, the appointment criteria and the violation of the principle of legality due to the fact that their functions are not properly determined.
Finally, and without prejudice to the fact that the project must still be adjusted and agreed in order to consider different perspectives and criteria of relevant actors, and it is still premature to foresee the positive and/or adverse effects that the project could involve, considering the support that has received its processing, everything suggests that it will be a matter of less time than the project becomes a reality and begins to govern in the not too distant future. This supposes that the standards of responsibility for economic and commercial acts, as well as, the penal implications, will increase, making their ex ante legal evaluation indispensable.