We invite you to read the article of Diario Financiero in which our partner, Antonio Rubilar, commented on the challenges for public entities with respect to the Economic Crimes Law.
Despite increasing the catalog of crimes, the Law on Economic Crimes generates discussions and uncertainty by focusing mainly on private ones. What about actions on public entities?
In August 2023, the Law on Economic Crimes was enacted, which systematizes crimes of this nature and those against the environment, and expands the criminal liability of legal entities, with a decisive focus on their leaders.
Among the possible responsible actors are legal entities under private law, state companies and corporations, legal entities under public law such as universities and religious organizations, and political parties, says Ximena Marcazzolo, professor and researcher at the Center for Regulatory Law and Business at the Universidad del Desarrollo, “Therefore, in terms of public organizations, all those with legal personality under public law are excluded, with the exception of those mentioned above,” she says.
In addition, the regulation, considered to be one of the most drastic with respect to legal entities and executives of private firms, expands the catalog of offenses for which a legal entity may be criminally liable, increasing from approximately 20 to more than 200 offenses. However, since it focuses mainly on private parties, its control and action on public entities has been under discussion.
Beyond internal mechanisms
The big difference between both sectors now is the obligation to implement a compliance program to prevent economic crimes, which does not exist in the public sector, “even though it must adhere to principles of probity and transparency,” says Albagli Zaliasnik’s leading partner for regulated markets and public law, Antonio Rubilar, who defines self-regulation and external regulation as key.
The legal entities to which the law will apply must have a crime prevention model effectively implemented to the extent required by their size, complexity, resources and the activities they carry out, explains García Parot’s lawyer, Nicolás García. The public world, even though it already has internal control and oversight mechanisms through the Comptroller General’s Office and the Administrative Probity Law, ‘could be complemented by best practices in governance and transparency, replicating some of the requirements that the Economic Crimes Law makes of the private sector’.
In this regard, it is important that the various public institutions take measures and adopt those protocols and procedures that are necessary to prevent and detect criminal conduct by their employees in the context of the activities and processes that such institutions carry out, says Barros & Errázuriz senior associate Francisco Vial. ‘Already since 2015, the Ministry General Secretariat of the Presidency published a document containing the basic elements for the crime prevention model in public companies in order to grant guidelines and directives for such entities’, he explains.
As necessary advances, what is fundamental is the strengthening of control systems and continuous training in ethics, crime, transparency and detection, says the Albagli Zaliasnik executive, together with ‘developing an obligation for the public sector to have preventive frameworks and regulations similar to those currently imposed on the private sector‘.
