Column written by our partner and candidate of the list A “Nuestro Gremio” in the elections of counselors of the Colegio de Abogados, Gabriel Zaliasnik.
Congress passed the bill that “systematizes economic crimes and attacks against the environment”, approving the veto that sought to correct inaccuracies in the original text. However, it is noteworthy that it was repaired in formal aspects and not in its serious substantive defects.
Although the expansive effect of criminal law may sometimes have reasonable grounds, in view of new legal assets that need to be protected (e.g. in crimes against the environment), this cannot justify its hyper-expansion. The latter is precisely what happens with this law when it seeks to punish natural and legal persons according not only to the facts, but also to the quality of their perpetrators, establishing a true parallel punitive system.
“This selective and fragmented view of economic crimes seems to be an ideological response that instrumentalizes criminal law instead of contributing to an effective and rational reproach of these crimes”.
In order to contribute to this debate, it is necessary to keep in mind some figures of the criminal procedure system. To date, Gendarmería reports more than 53 thousand persons deprived of liberty. According to the report of the Public Prosecutor’s Office for the year 2022, 12% of the admissions corresponded to injuries, 14% to crimes against the freedom and privacy of persons, another 14% were for non-violent robberies and 15% are classified as robberies and thefts. In other words, more than half of the prosecution’s investigations were linked to crimes that do not correspond to the classification of economic crimes, which reveals a certain detachment of this new legislation from the reality of the criminal phenomenon in Chile. In addition, only 11.65% of the total number of cases resulted in convictions.
These figures reflect a criminological reality of the country that differs from the focus or interests of the criminal legislator.
Thus, under the new law, any person who serves as a general manager or director of a company, by the mere fact of holding the position, will be exposed to the new differentiated system of greater severity. Moreover, such capacity will be considered a qualified aggravating circumstance, depriving him/her of the possibility of accessing a substitute penalty. Regarding the criminal liability of legal entities, the new law increases the scope of active subjects, extends the catalog of crimes, deepens the group of persons over whom supervision must be maintained and extends liability to acts that are not committed for the benefit of the legal entity itself. Finally, from the pecuniary point of view, it establishes confiscation without conviction, which erodes fundamental guarantees such as due process.
The desire for modernization cannot be an excuse for paradigm shifts that in their radicalization imply establishing an extremely differentiated punitive system for economic crime. The legislator should opt for a model that favors a single system for determining penalties while respecting the principles of equality before the law and due proportionality of sanctions. This selective and fragmented view of economic crimes seems to be an ideological response that instrumentalizes criminal law instead of contributing to an effective and rational reproach of these crimes.
