We share the letter to the editor written by our partner Gabriel Zaliasnik, for Diario Financiero, where he explained some key elements of the design of the criminal prosecution model for some special crimes.
Mr. Director:
Regarding the interview with the National Prosecutor, published yesterday in your media, I think it is necessary to expose some key elements.
The prosecutor attacks once again against the design of the criminal prosecution model for some special crimes – in this case, tax crimes – that require, with a certain discretion, the prior complaint or complaint from some authority, such as the case of the SII. In his laudable purpose of combating organized crime, he believes it is pertinent to ignore the substantive and procedural reasons that justify the choice of this design.
However, the proposed solution is far from adequate. As is evident, on the one hand, this restricts the possibilities that the service has of satisfying its main task of collecting taxes, and on the other, it greatly burdens the performance of the Public Ministry (MP) itself, which often lacks the necessary specialization to pursue these sophisticated crimes.
However, the solution is not that every administrative tax investigation must be investigated criminally, but rather that there is due institutional collaboration in advance to resolve which cases warrant the exercise of criminal action.
The exercise of the punitive power of the State is so delicate that its use must necessarily be limited to extraordinary and exceptional cases and never be the general rule. Criminal law must protect citizens from the excesses of criminal prosecution and not be an insurmountable weapon for those who are exposed to it. The boundaries must be clear; and the MP must – for this reason – play a prudent role in the exercise of his powers.
Gabriel Zaliasnik | Partner az | Professor Criminal Law University of Chile
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