CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva Abogados
4. Defences and Exceptions 4.1 Defences Mitigating Factors for Individuals
Mitigating Factors in Bribery Cases Until the enactment of Law No 21,694, effective co-operation with the investigation was a special mitigating circumstance in bribery cases, how - ever, said mitigating factor was comprehensively regulated and expanded to other types of cases, as will be explained in 6.5 Incentives Provided to Whistle-Blowers . Mitigating Factors in Economic Crimes In addition, even though effective co-operation will remain as a mitigating factor, other available defences will vary if the offence is considered an economic crime. According to Law 21,595, in those cases, the mitigating factors of diminished culpability (such as absence of seeking econom - ic benefit for oneself or a third party or omission to prevent the crime while being in an intermedi - ate or superior position), limited harm (more than 40 and less than 400 monthly tax units or UTM), greatly diminished culpability (such as acting in the interest of needy people, or due to pressing personal need, among others) and trifle (harm of less than 40 UTM) will apply. 4.2 Exceptions In general, the Chilean criminal system does not contemplate exceptions of any kind regarding bribery or corruption offences. However, Article 251 sexies of the Criminal Code presents a spe - cial case (see 4.3 De Minimis Exceptions ). 4.3 De Minimis Exceptions Article 251 sexies of the Criminal Code incorpo - rates the logic of de minimis exception into the Chilean system. The provision allows conduct that could constitute crimes of bribery or cor - ruption where these are in respect of official or protocolary donations of little economic value that are customary as manifestations of courtesy and good manners.
There are no special defences available for indi - viduals charged in connection with bribery or corruption offences. In this respect, offenders have the same defences available as for other crimes (ie, mitigating circumstances such as not having prior convictions, material collabora - tion with the investigation, self-indictment, etc). Defendants have ample rights of defence – they are granted access to the file from the beginning of the investigation and have broad access to an attorney, including the Public Criminal Defence. Mitigating Factors for Legal Entities Compliance programme In connection with legal entities, they may be exempted from criminal liability, inter alia con - cerning bribery cases, if, before the criminal offence was executed, they effectively imple - mented a suitable compliance programme, as mentioned in 3.3 Corporate Liability . Repair, avoidance, self-reporting Law No 20,393 on the Criminal Liability of Legal Entities expressly makes certain mitigating cir - cumstances available, such as the repair with extreme diligence of the damage caused by the offence, or the adoption of measures to avoid the reiteration of the offence after the offence has been committed, but before the beginning of the trial. In addition, self-reporting of the offence by the legal representatives of the company to the authorities before the latter become aware that a legal proceeding has been initiated against the company, may also be argued as a mitigating circumstance.
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