CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva Abogados
Law No 21,592 Establishing a Statute of Protection for Whistle-Blowers Law No 21,592 (21 August 2023) establishes a statute of protection in favour of whistle-blowers who report acts of corruption or breaches of pro - bity in the public sector, providing a reporting channel, protection measures, and mechanisms to address possible retaliation. In addition, it expands its scope to certain non-profit enti - ties and companies with state participation and makes the complaint applicable, under certain conditions, to private individuals and institutions that receive tax funds through permanent laws, as a subsidy or contribution from the state. Law No 21,694 Improving the Persecution of Recidivism and Felonies of Greater Social Connotation Law 21,694 (4 September 2024) regulates effec - tive co-operation and co-operation agreements, between the defendant and the public pros - ecutor, closely following the US legal system. Effective co-operation consists of the provision of precise, true and verifiable data or informa - tion that contributes to the clarification of the facts investigated or allows the identification of those responsible, or serves to prevent or impede the perpetration, continuity or repeti - tion of other crimes, or facilitate the practice of any kind of confiscation. As a special mitigating circumstance, it can lower the penalty between one and three degrees, and in extreme cases, it can even justify the dismissal of the case against the co-operator, as explained in 6.5 Incentives Provided to Whistle-Blowers . 2. Bribery and Corruption Elements 2.1 Bribery The Chilean legal system contemplates a long list of crimes related to corruption and bribery,
for which the main and most relevant are embez - zlement of public funds, grant fraud, unlawful negotiation, bribery, commercial bribery and
influence-peddling. The Criminal Code
All these crimes are defined in the Criminal Code and follow the general rules of punishability. In this respect, for an act of this kind to be punish - able, it must have been carried out with intent (the Criminal Code only punishes acts that have been carried out recklessly in specific cases, almost none of which are related to corruption and bribery, although there is an exception in the case of embezzlement – see 2.4 Public Offi - cials ). In crimes related to corruption and brib - ery, the Chilean criminal system does not require any kind of motive to be ascribed to the offender in order to impose a sanction. There is no general legal definition of bribery (or at least not just one). Bribery is punished in dif - ferent provisions of the Criminal Code (Articles 248, 248 bis, 249 and 250). Criminal conduct is defined as giving, offering or consenting to give an economic benefit or a benefit of any other nature. From the public officer’s perspective, it is receiving, offering to receive, or accept - ing receipt of that benefit, be it in favour of the employee or a third person. All these types of conduct must be related, in the original concep - tion of the Criminal Code, to the performance or lack of performance by a public officer of an act according to their duties, against their duties, or a specific crime. However, Law No 21,121 includes as a new provision a basic form of bribery consisting of the act of giving, offering, or consenting to a benefit by reason of the posi - tion of the public employee, without requesting any conduct by the public officer as a counter- performance for the benefit. In other words, the
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