CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva Abogados
the possibility of serving the sentence without imprisonment. In addition, when the offence is considered an economic crime, additional consequences to the penalty include: • fines, according to the “day-fine” ( días-multa ) system of Article 27; • prohibition of holding public, managerial or executive positions and contracting with the state; and • confiscation of profits, including the possibil - ity of confiscation of everything obtained as a consequence of the crime and its imposi - tion, even when there is no conviction against those responsible. Finally, regarding legal entities, according to Law No 20,393 on the Criminal Liability of Legal Entities, the available penalties for corporate entities, in the case of acts of bribery, include the imposition of fines (of up to approximately USD20 million for the worst cases), temporary prohibition to enter into contracts with govern - ment bodies and/or temporary loss of the right to receive government benefits, and even in some cases dissolution of the company. Law No 21,595 introduces the supervision of the legal entity and the confiscation of assets as available penalties. 5.2 Guidelines Applicable to the Assessment of Penalties Penalty Assessment As previously stated, each crime has a specific penalty established by law. The Criminal Code contemplates general rules for penalty assess - ment, including mitigating and aggravating fac - tors, such as recidivism. In this respect, the pen - alty is determined applying the following factors:
• the penalty assigned by law to the crime; • the degree of completion of the crime (attempted crimes have a lower penalty); • the kind of criminal intervention (perpetrator, co-operator or accomplice); • mitigating and aggravating circumstances; and • the extent of the damage caused by the crime. Agreements The law contemplates the possibility of reach - ing an agreement in order to terminate the case without going to trial, either through a monetary settlement or deferred prosecution agreements. Plea agreements are available when the con - viction sought by the Prosecutor’s Office does not exceed five years of imprisonment. When defendants acknowledge the crime for which they are being prosecuted, they may apply for a reduced conviction, with the authorisation of the judge. There are no other guidelines that judges and/or prosecutors should follow in any of these situ - ations. Mitigating and Aggravating Circumstances in an Economic Crime It is worth mentioning, once again, that if the crime is considered an economic crime accord - ing to Law No 21,595, the mitigating and aggra - vating circumstances available will change. As mentioned in 1.4 Recent Key Amendments to National Legislation , this law introduced a dif - ferentiated system of aggravating and mitigat - ing factors more appropriate to business crime, which is based on two elements: • culpability, according to the position held by the person in the organisation (the higher up
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