CHILE Trends and Developments Contributed by: Jorge Cabrera, Jaime Winter and Felipe Berríos, Winter Etcheberry
Winter Etcheberry Augusto Leguía Norte No 100 Las Condes Santiago Chile Tel: +56 9 3893 1499 Email: contacto@winteretcheberry.cl Web: www.winteretcheberry.cl
The Forfeiture of Gains in Chile With the entry into force of Laws 21,577 and 21,595 in 2023, the regulation of asset forfeiture in the Chil - ean legal order shifted from being a simple acces - sory penalty aimed at depriving offenders of the instruments and proceeds of crime to a system of enormous complexity and procedural heterogeneity. Forfeiture ceased to be exclusively a punitive sanction requiring a prior conviction as a necessary condition, admitting novel procedural mechanisms such as non- conviction-based forfeiture. This legislative development forms part of a process of implementing the guidelines contained in various instruments of international law, including the Vienna Convention against Drug Trafficking, the Palermo Convention against Transnational Organised Crime and the United Nations Convention against Corrup - tion (UNCAC), as well as the global standardisation promoted by the 40 Recommendations of the Finan - cial Action Task Force (FATF). As a result of these amendments, the landscape of forfeiture forms is heterogeneous and complex. An analysis of the various provisions regulating this institution permits, first and foremost, a distinction to be drawn between the forfeiture of instruments, the forfeiture of proceeds and now, the forfeiture of gains. The forfeiture of instruments applies to those things that served as a tool or means for the commission of the offence. The forfeiture of proceeds consists of the deprivation of ownership of material objects that result directly from the commission of the unlawful
act. The forfeiture of gains consists of the deprivation of ownership of assets up to the total value obtained as a consequence of the commission of the offence. The forfeiture of gains may be imposed on an equiva - lent basis where it is not possible to seize the direct material gain. Following the systematic amendment of forfeiture, it may be imposed as an accessory penalty to a criminal conviction or, alternatively, without a prior conviction. Regarding the forms of non-conviction-based forfei - ture in the legal order, the forfeiture of instruments and proceeds that are particularly suited to the com - mission of offences, and the forfeiture of gains (and equivalent forfeiture of gains), is configured as a gen - eral action of public law whose primary function is the correction of illicit enrichment. This latter form of forfeiture is the most significant innovation in the field of asset forfeiture in the Chilean legal system. It is regulated in general terms under Article 24 bis of the Chilean Criminal Code. This provi - sion establishes that every criminal conviction neces - sarily entails the forfeiture of gains derived from the offence. Regulation of the forfeiture of gains in the Chilean legal order The gains that may be forfeited pursuant to the new Article 24 bis of the Chilean Criminal Code are not restricted to direct financial income but encompass a broad spectrum of increases in value. The legal order defines the causal basis using broad prepositions, ordering the deprivation of assets obtained “through
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