CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva
of the victim of kidnap, child abduction, human traf - ficking or murder. This kind of co-operation is avail - able in the same cases as non-qualified co-operation, but it can only be recognised through a co-operation agreement with the public prosecutor. Qualified effec - tive co-operation can severely reduce the penalty of a crime, or even stop the prosecution entirely, through a final dismissal of the criminal facts ( sobreseimiento definitivo ). A condemned person can also enter this type of agreement to significantly shorten their sen - tence. Regarding legal entities, Law No 20,393 establishes an incentive mechanism for self-denunciation for compa - nies. Thus, if the managers of a company report their own misconduct before the start of a criminal pros - ecution, they will have the right to a reduced sentence. In the case of collusion, Law Decree No 211 sets out another manifestation of this figure known as “com - pensated disclosure” ( delación compensada ), which can operate as a mitigating and/or an exonerating cir - cumstance when, having participated in a collusion cartel, the defendant provides information that leads to the verification of the facts or of those liable. In this context there are high incentives for rapid co-opera - tion, because it only allows the collaboration to act as an exonerating circumstance for the first defendant to disclose relevant information, and as a mitigating circumstance for the second one to disclose relevant information, that must be additional to that provided by the first. 4.4 Whistle-Blower Protection Until recently, due to the absence of legal regulation, whistle-blowing was not a widespread practice in the Chilean system. The Chilean criminal procedural sys - tem allowed the prosecutor to enter into agreements with individuals, generally approved by the judge or court, but this was more of a general rule than a direct regulation to protect whistle-blowers. The recently enacted Law 21,694 establishes effec - tive co-operation, qualified effective co-operation and co-operation agreements, as explained in 4.3 Plea Agreements, Co-operation, Self-Disclosure and Leniency . Co-operation agreements can involve protection measures such as the concealment of their
identity, advanced deposition, remote deposition, police protection, identity change or any other suitable protective measure. Whether this new legislation is effective at promoting and protecting whistle-blowers is yet to be determined. There is no regulation of the above in the private sec - tor, so the treatment of individuals who report suspi - cious or illegal conduct within a company will depend on that company’s internal policies. Due to the increased application of compliance programmes in recent years, it has become more common for compa - nies to have systems which protect whistle-blowers. Nevertheless, it should be noted that the Undersec - retary of Crime Prevention has a special programme, which functions every hour of every day, to anony - mously report any crime. Using the information pro - vided by citizens, if sufficient, the programme files a report with the Public Prosecutor’s Office to initiate the investigation and criminal prosecution. 4.5 Cross-Border Defence Strategies When a criminal case involves multiple jurisdictions, it is crucial that the defence strategies and arguments presented coincide or, at the very least, can coexist. Therefore, every application or document submitted must consider the general scope of the defence strat - egy defined beforehand. These types of cases are not acknowledged by Chil - ean legislation, therefore, there are no co-ordinated defence mechanisms or limits to cross-border co- operation defined by law. 5. Key Trends and Future Outlook 5.1 The Year Ahead There are important reforms currently being discussed by Congress that would change how white-collar crimes are usually investigated and prosecuted. • Bill No 16.457-05 That Creates a Register of Final Beneficiaries, could greatly aid the prosecution of white-collar crimes, often committed through legal entities.
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