CHILE Trends and Developments Contributed by: Jaime Winter, Jorge Cabrera and Felipe Berríos, Winter Etcheberry
company or for the benefit of a company. Thus, the same act of fraud may or may not qualify as an economic crime depending on its connection to a business context. This leads to a distinction between two sentenc - ing regimes. If the fraud is not classified as an economic crime – ie, it is not connected to a company – the possibility remains for sentence reductions: the existence of multiple mitigating factors may allow the sentence to be reduced by one, two or even three degrees. In practi - cal terms, for a serious offence carrying presidio mayor en su grado medio (ten years and one day to 15 years), a two-degree reduction could bring the sentence down to presidio menor en su grado máximo (three years and one day to five years), thereby making the offender eligible for supervised release. Multiple mitigating factors are common, as they include elements such as a previously unblemished record (interpreted as no prior convictions), substantial co-operation with the investigation, and diligent efforts to make amends (in fraud cases, returning a sig - nificant portion of the defrauded funds). This scenario changes entirely if the offence is deemed an economic crime – which is highly likely in cases involving serious financial harm (as it is difficult to commit a fraud involving over USD5 million without the appearance of cor - porate legitimacy). The Economic Crimes Law introduces three fundamental changes in this regard. First, it replaces the general catalogue of aggra - vating and mitigating circumstances in the Penal Code with a specific set tailored to economic crimes. These are categorised as either simple or qualified, and are based on two main criteria: the offender’s culpability and the harm caused.
Regarding culpability, the law considers: • altruistic motives; • the offender’s position within the company; and • their interactions with co-offenders. Mitigating factors include: • not seeking personal gain; • omission rather than commission; • acting out of necessity or on behalf of others in need; and • in qualified mitigating factors, having taken preventative or remedial action, acting under pressure or subordination, or having acted with incomplete information while in a subor - dinate role. Aggravating factors include: • active involvement in an intermediate man - agement position; • abusive exercise of authority; • prior convictions for economic crimes; and • as a highly qualified aggravating factor, hold - ing a senior hierarchical position within the organisation. As for circumstances related to the damage caused, these are primarily determined by the monetary value of the harm. If the amount is negligible (less than 40 UTM or approximately USD2,800), it qualifies as a highly mitigating fac - tor. If the damage does not exceed 400 UTM (around USD28,000), it is a simple mitigating fac - tor. If the harm exceeds 400 UTM but is less than 40,000 UTM (approximately USD2.8 million), it is a simple aggravating factor. If it exceeds 40,000 UTM, it becomes a highly qualified aggravat - ing factor. The same classification applies if the offence affects the supply of essential goods or
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