CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva
The prosecutor will be granted permission to perform raids and seizures if it shows the court that there is a reasonable case for them. In general terms, the reasonability or correctness of the police and/or prosecutor’s conduct will be dis - cussed ex post facto, upon a request by the defend - ant with regard to motions to exclude evidence. Digital assets are not specially regulated in Chilean Law; therefore, they may be subject to tracing, freez - ing and seizure in accordance with the general rules. However, if the assets are outside regulated institu - tions, such as banks and finance institutions, they may be difficult to find and enforce judicial orders in relation to them. During the investigation, the Public Prosecutor’s Office, or even the victim, may present a motion to the judge to order precautionary measures on the assets of the defendant, such as their seizure or the prohibition on entering into acts or contracts relating to specific assets. These measures may be requested to secure the results of civil actions, the confiscation of the proceeds or the repairment of the damages caused by the crime. 2.4 Use of Technology in Investigations Enforcement authorities regularly use new technolo - gies available to the public during their investigations. However, more sophisticated technological tools can - not be implemented until a public contract or agree - ment is signed. For example, the Public Prosecutor’s Office already has access to some AI models and big data review due to agreements signed with other public and private institutions, although they are more commonly used to investigate criminal organisations than in white-collar investigations. Nevertheless, enforcement authorities are willing to work with new technologies and are usually receptive to information and reports provided by the intervening parties with the aid of technological tools not available to the public institutions. 2.5 Internal Investigations The conduct of internal investigations has not become a widespread practice in Chile. As a consequence of
this, and of the lack of a legal culture that considers such investigations as protected by privilege, pros - ecutors have seized evidence produced in the context of internal investigations. Because of this, and until case law clarifies the extent of privilege in Chile, internal investigations should be conducted by external lawyers to help protect the confidentiality of the investigation and its findings. However, since the changes implemented by Law No 21,595, companies may be exempt from criminal liability if they have effectively implemented a suit - able crime-prevention model, and one of the minimum requirements is establishing protocols to prevent, detect and sanction infringements of the crime-pre - vention model. This could potentially extend the prac - tice of internal investigations in the future. To comply with data protection and labour laws, com - panies should clearly state in their employment con - tracts and internal policies the possibility to conduct internal investigations and the related procedure, as well as their ownership of the electronic systems and communications held through them. Companies are not obliged to grant prosecution agen - cies access to the results of their internal investiga - tions. However, under the Corporate Criminal Liability Act (Law No 20,393), the surrender of such documents could be considered a mitigating factor. 2.6 Prosecution White-collar prosecutions are frequently initiated upon the filing of a criminal complaint by the victim, who has the right to have an active role in the proceed - ings. Once the complaint is admitted by the judge, the prosecutor is obliged to investigate. But even if the case is opened by the prosecutor themselves, the law does not grant them discretion, other than the analy - sis of the merits. In other words, if there is enough evidence of the alleged crime, the prosecutor should file charges and pursue the case. Unfortunately, there are no guidelines issued by the higher authorities of the Public Prosecutor’s Office regarding white-collar crimes in general, and the handling of the case will often depend on the decisions made by each pros -
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