CHILE Trends and Developments Contributed by: Jaime Winter, Jorge Cabrera and Felipe Berríos, Winter Etcheberry
mass consumption, impacts vulnerable persons, or involves public officials in certain specified circumstances. As can be seen, there is no room for prior good character or co-operation with the investigation as mitigating factors – although provisions for co-operation or whistle-blowing exist elsewhere in the law – and only limited scope for reparation. The second change introduced by the Economic Crimes Law concerns how the impact of appli - cable mitigating or aggravating circumstances differs from the general regime. Rather than reducing or increasing the sentence by degrees, simple mitigating or aggravating factors must be considered alongside other elements to deter - mine the exact sentence within the statutory range. However, a highly qualified mitigating or aggravating factor obliges the court to impose the sentence in the lower or upper half of the applicable range, respectively. Only when mul - tiple qualified circumstances are present may the sentence be reduced or increased by one degree. In short, the general rule is that one can - not escape the sentencing range established by law. This approach is consistent with other areas of Chilean criminal law, such as driving under the influence causing death, firearms offences, collusion (now to be subject to this new regime), and robbery with violence or intimidation. Third, the alternative sentencing regime estab - lished by Law No 18.216 was replaced; the possibility of parole or supervised release has been eliminated. The rationale is that supervised release is intended to facilitate the reintegration of socially marginalised offenders – something not applicable, following Sutherland’s theory, to the typically well-integrated offenders of eco - nomic crime. Conditional suspension of the sentence remains available for sentences of up
to three years, where the offender has no prior convictions. However, for sentences of between three and five years, a regime of partial deten - tion – either daytime, night-time or weekends – is introduced. In severe cases, this may involve detention in a prison facility; in less serious cas - es, it may be served at home. However, a con - dition for eligibility is the absence of any highly qualified aggravating factor. Taken together, these provisions mean that, in practice, members of a company’s senior man - agement are almost certain to face actual impris - onment, with very limited scope for alternative outcomes. Consider an example: a CEO is involved in a fraud. If the defrauded amount is substantial, the applicable sentence will exceed five years and one day. As the sentence cannot be reduced by degrees, the individual will not be eligible for alternative sanctions. If, alternatively, the amount is low enough that the sentence falls between three years and one day and five years, the fact that the offender is a CEO – constituting a highly qualified aggravating factor – will exclude them from partial detention. The sentence will there - fore still be custodial. Only in the case of a minor fraud (less than 40 UTM) might conditional sus - pension be possible. Other Effects There are also additional consequences to the foregoing. First, only where the applicable sen - tence is less than three years and one day is conditional suspension of proceedings available (a resolution whereby charges are suspended subject to conditions, without the admission of criminal liability). Since the new system pre - vents sentence reductions by degrees, this type of resolution becomes more difficult to achieve. By contrast, the possibility of a reparatory agree -
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