CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva
Class actions are not contemplated in Chilean legisla - tion. The nearest equivalent is the common solicitor, by which it is ordered that within a short period of time the plaintiffs designate a common representative to act on behalf of all of them. However, it is not a widely used practice. 2. Enforcement 2.1 White-Collar Enforcement Authorities The Public Prosecutor’s Office is the agency exclu - sively in charge of investigation and prosecution before criminal courts. Other special agencies may investigate and enforce a range of non-criminal sanc - tions under different statutes and proceedings, such as the Financial Market Commission, the Internal Revenue Service, the National Economic Prosecutor (along with the Court for the Defence of Free Competi - tion in antitrust matters), and the Environment Agency and environmental courts. In recent years, different courts have dealt with the discussion on whether the same facts can be pros - ecuted at the same time under criminal and adminis - trative proceedings without affecting the double jeop - ardy principle. The judicial trend has been to permit prosecution in both venues, but there have been some exceptions. There are no specialised courts for white-collar offenc - es in Chile. However, the Public Prosecutor’s Office has attorneys specialised in the prosecution of certain types of crimes, including prosecutors dedicated to investigating economic crimes. In addition, the Pub - lic Prosecutor’s Office has units specialised in certain crimes, which advise the national prosecutor’s office, regional prosecutor’s offices, and collaborate with the specialised prosecutors who handle the investigation of crimes within their jurisdiction. One of these units is the Specialised Unit on Money Laundering, Economic Crime and Organised Crime (ULDDECO). Moreover, there are specialised police squads in charge of car - rying out the investigations requested by the Public Prosecutor’s Office, such as the Economic Crimes Brigade (BRIDEC) and the Money Laundering Investi - gative Brigade (BRILAC).
In cases with extended media coverage, public policy and political pressure may affect investigation and prosecution, but generally do not influence enforce - ment. However, in some cases the involvement of other public entities, such as the State Defence Coun - cil (CDE), can alter the decisions made by the Public Prosecutor’s Office – eg, extending the duration of investigations and requiring further studies. 2.2 Initiating an Investigation The Chilean Criminal Procedure Code establishes that investigations may be initiated by means of a com - plaint, the filing of criminal action by the victim and other legally authorised individuals and bodies or by the sua sponte decision of the Public Prosecutor’s Office. If the victim files a criminal action, the court conducts an admissibility assessment of the com - plaint, to verify that the facts constitute a criminal offence, prior to the initiation of the investigation. The law does not allow much discretion to the pros - ecutor. Therefore, in principle, all crimes that come to its knowledge should be investigated. Regarding corporate liability, Law No 21,595 intro - duces new ways to initiate the investigation for cases regulated by Law 20,393. Specifically, it no longer reduces it to a prosecutor’s decision after becoming aware of the crime, but rather adds the possibility of initiation by filing a criminal action by the victim or other legally authorised individuals and bodies. 2.3 Powers of Investigation There is practically no threshold that the prosecutor needs to meet to request the voluntary production of documents by a company under investigation, or even a third party. The same applies to subpoenas to individuals, related to either the company under investigation or a third party. If the documents are not produced or the individual does not appear before the prosecutor, the latter lacks powers to enforce its instructions and will file a request before the courts. Depending on the type of information requested, the legal threshold varies slightly. As a rule, courts rely on the good faith of the prosecutors and deny these requests only exceptionally.
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