CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva Abogados
6.4 Protections Afforded to Whistle- Blowers Until recently, due to the absence of legal regu - lation, whistle-blowing was not a widespread practice in the Chilean system. The Chilean criminal procedural system allowed the pros - ecutor to enter into agreements with individu - als, 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, regulates effective co-operation and co-operation agree - ments, as will be explained in 6.5 Incentives Provided to Whistle-Blowers . Co-operation agreements can involve protection measures such as the concealment of identity, advanced deposition, remote deposition, police protection, identity change or any other suitable protective measure. Whether this new legislation will be effective at promoting and protecting whistle- blowers is yet to be determined. There is no regulation of the above in the pri - vate sector, so 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 pro - grammes in recent years, it has become more common for companies to have systems which protect whistle-blowers. 6.5 Incentives Provided to Whistle- Blowers Before the enactment of Law No 21,694, incen - tives for whistle-blowers were limited to sub- stantial collaboration, which is a common miti - gating circumstance, and the former effective collaboration, which was a special mitigating circumstance available only to a few types of felonies, such as, corruption-related offences and drug trafficking.
However, the recently enacted Law No 21,694 significantly modified co-operation in crimi - nal procedures, establishing a new legislation regarding effective co-operation and co-opera - tion agreements. Effective co-operation is a reinforced substan - tial collaboration, requiring the administration of precise, truthful and verifiable information that allows clarification of the facts under investiga - tion, the identification of the perpetrators, the prevention or impediment of other crimes, or that facilitates any confiscation. This kind of co- operation is available in cases of illicit associa - tions, drug dealing, arms trafficking, terrorism, economic crimes (which include more than two hundred offences), money-laundering and other especially serious crimes. The court must recognise the effective co-oper - ation established in a co-operation agreement with the public prosecutor (reducing the pen - alty by one or two degrees) but can also rec - ognise it without one (reducing the penalty by one degree). If the co-operator was involved in the felony, they must provide information beyond their self-involvement in it. Qualified effective co-operation requires the administration of precise, truthful and verifiable information that makes it possible to: • identify the leaders, criminal bosses or finan - ciers of illicit associations and presuming their intervention in crimes; • identify products, money or the source of income of illicit associations and facilitate their confiscation; or • identify the place where someone was a victim of kidnapping, child abduction, human trafficking or murder.
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