CHILE Trends and Developments Contributed by: Jaime Winter, Jorge Cabrera and Felipe Berríos, Winter Etcheberry
the forfeiture of proceeds under the new Articles 24 bis and 24 ter; it is a form of confiscation that is not deemed a penalty according to Article 20 of the Chilean Criminal Code, but as a regulatory reaction of public law with civil effects as a con - sequence of the finding of the unlawful act. This does not mean that the forfeiture of proceeds may not be imposed because of a conviction, but that it may be imposed regardless of a con - viction. According to Article 24 bis of the Chilean Crimi - nal Code, proceeds include all profits that have been originated in the unlawful act, whatever their legal nature, including the costs avoided through the unlawful act. Regarding criminally liable individuals (including corporations) the for - feiture of proceeds is regulated in Article 24 bis of the Chilean Criminal Code and may only be imposed if the misdemeanour, felony or crime has been proven, if there are proceeds and if there is causation between the unlawful action and said products. Regarding non-criminally liable individuals, the forfeiture of proceeds may only be imposed should the individual be in one of the cases listed in Article 24 ter of the Chilean Criminal Code, which lists individuals that acquired said profits in bad faith or, alternatively, that acquired said proceeds free of charge. This is the case for: • a person acquiring “as heir or testamentary assignee, at any gratuitous title or without valid title” ; • a person who acquires “through the unlawful act and those intervening in the perpetration of the act acted in his interest” ; • a person who acquired the proceeds knowing or being obligated to know its “unlawful origin at the time of acquisition” ; and
• legal entities that have received the proceeds of a misdemeanour, felony or crime as a con - tribution to their assets. Forfeiture of the object of the crime A second generally applicable form of non-con - viction-based forfeiture is the forfeiture of the object of the crime. This form of confiscation is normally a penalty and has existed as a pen - alty since the enactment of the Chilean Crimi - nal Code; however, it has been broadened to include cases where no criminal liability can be imposed but the crime is proven. The forfeiture of the object of the crime can be imposed as a non-conviction-based confiscation provided that, as per Article 31 ter of the Chilean Crimi - nal Code, “it can be proven that the goods stem from the unlawful act” . The forfeiture may not affect a third party acquiring in good faith. Forfeiture of especially dangerous instruments The third generally applicable form of non-con - viction-based confiscation is the forfeiture of especially dangerous instruments, regardless of a conviction, in accordance with Article 31 of the Chilean Criminal Code. Procedural amendments The reform of the regulation of non-convic - tion-based confiscations enacted by Laws No 21,575, 21,577 and 21,595 also included an amendment to the Chilean Code of Criminal Procedure, including special rules destined to ensure expedited enforcement of all forms of non-conviction-based forfeitures. This proce - dure is contained in the new “Title III bis Proce- dure for the imposition of confiscation without prior conviction” , in the Fourth Book of the Chil - ean Code of Criminal Procedure (Articles 415 bis et seq.).
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