Jorge Boldt
Cariola Diez Perez-Cotapos, Santiago
jboldt@cariola.cl

In August 2023, a new law on economic crimes came into force in Chile (Law No 21.595 or the ‘Economic Crimes Law’), which entails the most significant change in terms of criminal regulation since the promulgation of the Criminal Code in 1874. Anti-corruption matters are no exception and are also covered under this new law.

Relevant anti-corruption changes in recent years

In terms of corporate criminal liability, it is worth recalling that it was through the enactment of Law No 20.393 in 2009 that Chile established, for the first time, a statute for the criminal liability of legal entities. At the beginning, this law contemplated only three crimes for which a company could be liable: financing of terrorist activity, money laundering and bribery.

For years, there were no relevant changes, until 2018, with the enactment of Law No 21.121 for the prevention, detection and prosecution of corruption. This law extended the criminal hypotheses of bribery to benefits of any kind, not only economic. In addition, a new type of bribery was introduced as a crime, known as bribery without consideration or quid pro quo. In other words, any undue advantage offered to or accepted by a public official may constitute a criminal offence, without the need to prove the intention or effect of a bribe. Incompatible negotiation, bribery between private individuals and unfair administration were also incorporated as criminal offences that, in addition, could generate criminal liability for legal entities.

Despite the changes that have been introduced since 2009 in criminal matters regarding anti-corruption, as mentioned, the new law on economic crimes sets out a change of paradigm, especially for those crimes committed in the context of corporate activity.

Changes introduced by the Economic Crimes Law

Law No 21.595 supplemented Chilean legislation related to economic and environmental crimes by: (1) creating the concept of 'economic crime' (essentially, crimes committed within the activities of a company); (2) establishing a special regime of penalties for individuals who commit these crimes, usually with more severe consequences; (3) expanding the list of criminal offences for which legal entities and individuals could be liable, including a whole new regulation on environmental crimes; and (4) amending and strengthening the regime of the criminal liability of legal entities.

In the field of anti-corruption, it should be noted that the new law incorporates a different regime of sanctions and penalties applicable when the offence, in this case, bribery, is committed in the framework of economic activity. Therefore, new aggravating and mitigating circumstances specially designed for this type of crime are considered, such as the economic benefit obtained or the position of the offender within the legal entity. Thus, those who occupy decision-making positions within a company may see their penalty aggravated in the event they commit a crime, while those who receive orders from superiors should see their penalty attenuated.

The new law also restricts the likelihood of serving penalties of imprisonment in freedom (through a substitution of penalties) with regard to crimes that are not ‘economic’. Considering the above, and although these amendments go beyond just corruption-related offences, it is expected that individuals who commit acts of bribery in the context of business activity will have more chances to effectively serve a prison sentence.

Another important change is the establishment of a new system of calculating fines for economic crimes. Typically, fines in the Chilean criminal system were relatively low, especially in the context of white-collar offences, but now, with the amendments made, economic crimes will have a fine that seeks to be proportional to the economic situation of the individual who committed the offence and the seriousness of the crime. Regarding serious offences, fines for individuals can reach up to 300 days of income, while for legal entities, the maximum is 400 days of the income of the company.

The forfeiture of profits generated as a consequence of the crime, and the inability to contract with the Republic of Chile and hold public office or managerial positions in some private companies are also sanctions improved by the Economic Crimes Law for every economic crime.

Regarding legal entities,^[1] the number of offences that can trigger their criminal liability has been expanded substantially. In effect, the new law makes companies, regardless of their size, potentially liable for more than 300 criminal offences. In relation to anti-corruption matters, crimes related to the irregular financing of political campaigns, embezzlement of public funds and violation of secrets, and other crimes where the active offender is a public officer who may act in complicity with the legal entity are incorporated as crimes that can be committed by companies.

Ultimately, the coming months will be crucial in setting the standard that both the courts and Public Prosecutor's Office will follow in the prosecution of corruption-related offences under the new standards set by the Economic Crimes Law.

In summary, this new law enhances the tools of authorities to prosecute corruption, especially when it comes to crimes that are committed within the burden of a company's activities.