CHILE Trends and Developments Contributed by: Jaime Winter, Jorge Cabrera and Felipe Berríos, Winter Etcheberry
ment between victim and accused – where the payment of compensation or some other repara - tory act extinguishes criminal liability – remains unaffected. It is likely, however, that only those with the means to pay will be able to avoid imprisonment. Moreover, successive amendments to the rules on pretrial detention and their interpretation by the courts have elevated the relevance of a potential custodial sentence when assessing whether the accused poses a threat to public safety. As a result, the risk of pretrial detention during the investigation phase increases sig - nificantly, even when the accused offers strong guarantees against re-offending or non-coop - eration. Importantly, where pretrial detention is imposed on the grounds of danger to society, it cannot be replaced by bail (which is only avail - able where the concern is risk of flight). Corporate Criminal Liability In Chile, corporate criminal liability has existed since 2009 under Law No 20.393, initially for a handful of offences. However, it was only in 2018 that fraud-related offences were included – spe - cifically, misappropriation and disloyal admin - istration. With the enactment of the Economic Crimes Law, all economic offences, including deceptive fraud (such as estafa in its various forms, including cyberfraud), are now predicate offences for corporate liability. While the general attribution rules have not changed, the scope of individuals whose actions can trigger corporate liability has been expanded. Previously, only individuals in mana - gerial roles or directly subordinate to them could expose the company. Now, liability may also arise from the conduct of any individual within the company, and even from that of third-party
suppliers, in so far as they handle company mat - ters vis-à-vis third parties. Finally, the law introduces the figure of the compliance supervisor, who may be appointed either as a penalty or a precautionary measure. Although their formal role is limited to overseeing the operation of the company’s compliance pro - gramme, the breadth of their powers in practice may impact key aspects of the business. The new regulation of non-conviction-based forfeiture under the Chilean Criminal Code Until very recently, non-conviction-based for - feiture was not generally admissible under Chil - ean law. Confiscations were traditionally only allowed as a form of criminal punishment, thus requiring a criminal conviction. The enactment of Laws No 21,575, 21,577 and 21,595 in 2023 radically changed this approach by generally allowing forms of non-conviction-based for - feiture according to the conditions set forth in the new Articles 20, 24 bis, 24 ter, 31, 31 bis and 31 ter of the Chilean Criminal Code. These provisions implement Chile’s obligations under the United Nations Convention Against Transna - tional Organized Crime, and help materialise the internationally recognised principle that “crime should not pay” . It is important to bear in mind that all the amend - ments to the provisions on confiscations in the Chilean Criminal Code are generally applicable to all misdemeanours, felonies and crimes in Chile, including all forms of fraud. The following paragraphs outline the forms of non-conviction- based forfeiture generally applicable under Chil - ean law. Forfeiture of proceeds The first form of non-conviction-based forfeiture incorporated into the Chilean Criminal Code is
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