CHILE Law and Practice Contributed by: Jorge Bofill and César Ramos, Bofill Escobar Silva Abogados
the public prosecutor’s indictment. In this way, the law ensures that the claims that sustain the measure are, at least, serious enough to justify its imposition. In the case of third parties, since these are meas - ures that have in rem effects, they apply to any individual that may wish to act upon the goods affected by the measures. It is worth noting that in criminal proceedings, in most cases, it is only possible to request these measures once the prosecutor has pressed for - mal charges against the defendant, which could be too late. However, since the enactment in September 2024 of Law No 21,694, the measures requested to secure assets on which to enforce the con - fiscation of profits or equivalent value of goods or effects may be ordered without a hearing of the affected party, though the judge will set a deadline for the public prosecutor to press for - mal charges. This exception can benefit the victim, because, if it is not possible to satisfy the damages arising from the offence for lack of goods, the injured party may bring a civil action on the property confiscated, or the proceeds of its realisation, provided that there is a direct rela - tionship between the damage caused and the profits obtained. 2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets Chilean law does not contain a special procedure requiring a defendant to disclose their assets. However, in the context of a criminal procedure, typically during the investigation there could be proceedings aimed at finding the assets of the defendant – for example:
• asking the competent institutions to inform the public prosecutor’s office of the existence of certain goods, usually under a registration regime (whether movable goods such as cars, real estate, banking products, etc); or • asking institutions that keep a registry of transactions to disclose them, depending on their nature (for instance, the internal tax system could report the existence of assets based on taxes paid). This disclosure does not distinguish between assets held in the name of the defendant and those held by nominees on the defendant’s behalf. There are no sanctions if the defendant does not provide the information about their assets. The claimant does not need to give a cross-under - taking in damages. 2.2 Preserving Evidence In addition to the precautionary measures men - tioned in 2.1 Disclosure of Defendants’ Assets , which could indirectly serve to preserve evi - dence, the prosecutor always has the option of mandating the police to ask the defendant to permit the entry and search of their property, or, if not given, to ask the judge for authorisation to do so forcefully. The prosecutor could also request the judge to authorise the seizure of objects and documents related to the investigated facts – ie, those that could potentially be affected by a confiscation penalty and those that could be used as evi - dence. The claimant is not permitted to search docu - ments at the defendant’s residence or place of business. However, as previously mentioned, the prosecutor may always request the needed
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