“The effect produced by the treatment given to companies and those who run them is a sign of stigmatization of entrepreneurship”, emphasized Gabriel Zaliasnik.
There is no doubt that just as the law that systematizes economic crimes, which is about to be enacted, has many supporters, it also has fierce detractors. Among the latter is the criminal lawyer and academic, Gabriel Zaliasnik, who together with the constitutional expert, Constanza Hube, filed on behalf of the Confederation of Production and Commerce (CPC) a ‘téngase presente’ before the Constitutional Court, exposing the problems that its implementation would have.
In an interview with DF, the jurist detailed the motivations and arguments contained in his presentation to the court and also – in writing – added a commentary on the statements of one of the authors of the bill “I am surprised that those who defend the law on economic crimes do not quote truthfully their own bill. They affirm that there is no attribution of criminal responsibility to directors and executives for only exercising the position, but they omit that the aggravating circumstance of article 16 does not only operate in case of active abuse of a position of power to perpetrate the crime, but also according to letter a) if there is active participation in a hierarchical position in the organization, which is proper and of the essence of managerial and directive positions in a company… Half-truths do not help and on the contrary, they confirm our concern”, he sentences.
-Why make a “keep in mind” in the control of constitutionality with respect to this bill?
-Everyone has the right to make presentations and formulate petitions. It is not a challenge per se of the law but only to alert the TC of the severe vices that are appreciated at first sight and, that probably will correspond to review in inapplicability in the future.
-What is your expectation that the TC will consider your arguments?
– As we have indicated, our objective is to put on record somewhere in the processing of this project the serious transgressions to constitutional rights such as equality before the law and due process.
-If these arguments are not considered, what other way is left for the regulation to be revised?
-A law can always be modified, repealed, its entry into force can be postponed, etc. The paths have to be evaluated at the right time. For now, I am confident that we have given the due warning so that the competent authorities can define whether they want to persist in a path of punitive populism or prefer to legislate responsibly.
-How do you take the criticisms of the parliamentarians and the government regarding the presentation made by the CPC before the TC?
-I understand that they prefer to silence criticism, but that is cheating themselves. Let’s not forget that it is a law with such obvious errors that they forced the government to veto it beforehand to rectify at least the gross errors of form. For the same reason, it does not bother me that they do not like the substantive objections we have raised. I believe that they are a contribution for Chile not to legislate hastily and to avoid the embarrassment and subsequent problems of a bad law.
The arguments
-What is, in your opinion, in general terms, the good and the bad of this law?
-What happens with the new law on economic and environmental crimes is that it will always be positive to modernize the legislation, in terms of general principles, in general terms. Although it is a modernization that comes late or at the wrong time, because all this is born of problems that could have arisen in concrete cases in the past and for that reason it has some degree of populism.
For one thing, it is still bad that Chile continues to legislate on the basis of patches, in an inorganic way, we believe that with the law we solve everything… instead of taking charge of the fact that the country requires a new Penal Code, which systematizes all the criminal figures, where it is easy to identify them and there is a treatment that is coherent between the different types of crimes and legal goods that are affected. In this respect, this law is a paradigmatic example.
-Why?
-Because the effect produced by the treatment given to companies and to those who run them, is a sign of stigmatization of entrepreneurship by treating it as a criminal category in this way and it violates essential principles of equality before the law. Why are you going to treat some crimes with a much more severe statute just because they occur within a company? Or because a decision is made by the person who holds a high executive position in that company. Then, some people start to be treated selectively in a more severe way, with a very instrumental and ideological view, to the detriment of others. This is a very serious flaw in this regulation as a whole. This completely distorts the harmony that should exist in the legislation.
-Would you say that it was legislated in the heat of the moment?
-I think so, although at the wrong time. It is as if, due to a problem of legislation in a country, certain criminal acts occur, in this case of an economic nature; therefore, the legislator reacts in the heat of the moment, contributing with this type of projects, which are not consistent with the rest of the legal system. And it has a defect that is the greatest of all and that goes unnoticed by many, this law is a real missile to the waterline of a model of development and economic growth that is based, in no small part, on people willing to invest. What is the sense of a pro-growth agenda, when there is now talk, for example, of tax reform, if the signal being given to businessmen is that the risk of investing in Chile and developing business is to go to jail, if certain situations occur that may even escape their spheres of control.
-In that sense, is it going to be more difficult to do business in Chile?
-I don’t know if it will be more difficult or more dangerous. This law is a disincentive to hold positions of high relevance or, at least, it is going to slow down the decision making process of companies, it is going to hinder it. Every decision in a board of directors will require the opinion of a criminal lawyer, to be sure that we are not incurring in any of the respective criminal hypotheses. This is curious because now the secretaries of the boards of directors of the companies will have to be professors of Criminal Law. And many times business decisions are quick decisions, mistakes can be made, but they are quick decisions.
-Is there any specific situation that is that complicated?
-There is a criminal type that talks about a situation in which there could be a case of abusive dilution of minority shareholders, which is very ambiguous, which leaves much to the final interpretation, but it is about a minority shareholder with few shares having the real control of the companies. It empowers the minority in such a way that, at the end of the day, the development of that company is hindered. This legislation is very tinged, it has the smell of criminal law, that is to say, that for being a company, for being a senior executive of a company, one has a much more unfavorable treatment. Even the distinction with SMEs shows that there ends up being a parallel punitive system, one for businessmen and another for the rest of the citizens in the face of the same conduct.
-How so?
-In other words, a swindle between two people has a treatment and a swindle, because it is part of the company, is going to have this treatment that makes it not imprisonable, for example. It seems to me that it is essential to reflect on this.
“Huge constitutional controversies”
-Why did the project move forward, did the businessmen not realize what was coming?
-I don’t know how it went under the radar. I have the impression, and here the businessmen’s unions have to make a mea culpa, that either they did not see it coming or they were afraid to raise their voices. Because after the explosion it sounds unpopular to come out to defend the companies. Chile fell into a logic of political correctness and at that time political correctness led you to remain silent in many situations. And either they did not decode well or the internal legal teams of the unions and the study institutes of the parties were caught off guard. Because when certain aggravating factors are applied in this law, it seems that the way to harden the punitive system imposes effective imprisonment, then consider twice the same fact.
-It is strange that these things went unnoticed, because many experts were heard.
-Look, it is a project in which a part of the academy was listened to a lot, but it probably did not listen to the final addressees of the norm nor to the lawyers who practice in the square. There is a lack of knowledge of the practical reality of the application of these rules. It may be that academically they will stand up to scrutiny in many respects, but I fear that in practice they will not.
-Does that mean that this law or some of its articles could be taken to the Constitutional Court?
– I would think that this is going to be a law that will generate enormous constitutional controversies. Probably, there will be a debate article by article afterwards, as a way of correcting. I believe that we lawyers will tend to correct many criminal types and many situations by this means. And it is unusual that one is thinking ex ante that a law that is going to come into force is going to be subject to daily questioning before the Constitutional Court. That alone tells you something.
-Don’t you think that perhaps this law could inhibit the repetition of cases like Polar or collusion?
-Taking it to the absurd, if there were a death penalty, perhaps many crimes would be inhibited. When we introduce stricter statutes we try to give these signals. What happens is that it has to be reconciled and I do not see dogmatic and deep reasons to give such a differentiated treatment. This law is harsh, let us also try to make it even.
-There have been cases that have generated a lot of indignation among the people, as for example in the Penta case, those responsible have been sentenced to ethics classes, that is not going to happen with this law.
-The ethics classes were not provided as an additional sanction to benefit Délano and Lavín, but to humiliate them and it was communicatively installed that this was a benefit. That is a mistake and whoever wants to take refuge in that makes a very deep diagnostic mistake, because we build parallel realities. This law is going to cause many headaches, because it has such an overabundance of criminal types that it will lead to questions of unconstitutionality.
