Chile has signed several anti-bribery and anti-corruption international conventions. Most relevant are the Inter-American Convention Against Corruption of the Organization of American States (OAS); the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions; and the United Nations Convention Against Corruption.

The main legislation against corruption and bribery in Chile is set forth in the Código Penal (Criminal Code), Law No 18,575 on Public Administration, and Law No 18,834 on the Statute Applicable to Public Officials. All offences are laid down in legal texts.

For example, bribery is considered a crime in the Criminal Code (Articles 248 to 251 sexies), but the same conduct is also prohibited under laws which regulate the activity of domestic public officials (especially Law No 18,575 and Law No 18,834) and is considered an infringement of the probity and impartiality principles expected of public officials, for which infringement they can be administratively sanctioned.

In addition, Law No 20,393, on the Criminal Liability of Legal Entities, is applicable to a specific group of offences including, among many others, the crimes of bribery, unlawful negotiation and commercial bribery.

It is also worth mentioning that the Law No 21,595 on Economic Crimes, includes commercial bribery within the first category of economic crimes, which under all circumstances will be considered economic crimes. Under the third category of economic crimes, this law contemplates crimes committed by public officials, such as bribery, when a member within a company has also intervened or a benefit has been reported for the company. The fact that these crimes are considered economic crimes is extremely relevant, as it entails the application of the special regime contemplated by this legislation.

Finally, the recently enacted Law No 21,694 seriously modified collaboration and whistle-blowing, through the regulation of co-operation agreements between the defendant and the prosecution.

There are no general guidelines for the interpretation and enforcement of national legislation in Chile. Judgments are a source of interpretation of the law, but do not constitute precedent. Judgments are only binding in the case in which they are issued and only for the parties involved in that case.

The National Public Prosecutor, which is the entity entrusted with the investigation and enforcement of criminal offences, recently issued new instructions to which public prosecutors are subject in the context of anti-corruption investigations (Oficio Fiscalía Nacional No 278-2022, 8 April 2022).

These instructions aim to achieve the effective, coherent and co-ordinated performance of the function of public prosecution. Therefore, they are binding for prosecutors only.

The new instructions refer to relevant matters regarding corruption crimes, such as the concept of public officer, mitigating and aggravating circumstances of criminal liability, whistle-blowing, and several procedural matters, for instance, the possibility of reaching an agreement in order to finish investigations without a trial (ie, through a monetary settlement or deferred prosecution agreement). It also modifies the previous instruction (Oficio Fiscalía Nacional No 472-2020, 29 July 2020), specifically with respect to corruption crimes related to other criminal phenomena, to the effects produced by the accusation with respect to certain public officials, and the application of some procedures, among others. However, it should be noted that recent changes in the legislation may lead to new instructions related to whistle-blowers.

Legislation on corruption-related crimes has been subject to important amendments over the past decade, such as the enactment of Law No 20,393 on the Criminal Liability of Legal Entities (2009) and Law No 21,121 on Prevention, Detection and Persecution of Corruption (2018). However, over the past 12 months, several key amendments have been brought.

Law No 21,595 Systematising Economic Crimes and Offences Against the Environment

Law No 21,595 (17 August 2023) systematises economic crimes and offences against the environment. Based on the diagnosis of the general inadequacy of the previous system for the economic crimes defined in Articles 1, 2, 3 and 4 of that law, the amendments to this law have created a differentiated set of rules for sentencing, by restricting the effect of mitigating and aggravating factors, mostly unrelated to business crime, and replacing them with a specific catalogue. In addition to this, it limits the applicability of alternatives to imprisonment, such as probation, and introduces the general confiscation of profits, reforms the system of fines and introduces relevant changes to the statute of liability of legal persons (fully in force since September 2024), eliminating the requirement of the benefit of the company, and extending both the catalogue of crimes and persons whose intervention generates the liability of the legal person. Finally, it also introduces new economic and environmental crimes and modifies the wording of several crimes currently in force in order to solve the difficulties of interpretation and application that have arisen in practice. As an example of these modifications, with this new law, the definition of recipients of commercial bribes has been expanded to include directors and administrators.

Law No 21,592 Establishing a Statute of Protection for Whistle-Blowers

Law No 21,592 (21 August 2023) establishes a statute of protection in favour of whistle-blowers who report acts of corruption or breaches of probity in the public sector, providing a reporting channel, protection measures, and mechanisms to address possible retaliation. In addition, it expands its scope to certain non-profit entities and companies with state participation and makes the complaint applicable, under certain conditions, to private individuals and institutions that receive tax funds through permanent laws, as a subsidy or contribution from the state.

Law No 21,694 Improving the Persecution of Recidivism and Felonies of Greater Social Connotation

Law 21,694 (4 September 2024) regulates effective co-operation and co-operation agreements, between the defendant and the public prosecutor, closely following the US legal system. Effective co-operation consists of the provision of precise, true and verifiable data or information that contributes to the clarification of the facts investigated or allows the identification of those responsible, or serves to prevent or impede the perpetration, continuity or repetition of other crimes, or facilitate the practice of any kind of confiscation. As a special mitigating circumstance, it can lower the penalty between one and three degrees, and in extreme cases, it can even justify the dismissal of the case against the co-operator, as explained in 6.5 Incentives Provided to Whistle-Blowers.

The Chilean legal system contemplates a long list of crimes related to corruption and bribery, for which the main and most relevant are embezzlement of public funds, grant fraud, unlawful negotiation, bribery, commercial bribery and influence-peddling.

The Criminal Code

All these crimes are defined in the Criminal Code and follow the general rules of punishability. In this respect, for an act of this kind to be punishable, it must have been carried out with intent (the Criminal Code only punishes acts that have been carried out recklessly in specific cases, almost none of which are related to corruption and bribery, although there is an exception in the case of embezzlement – see 2.4 Public Officials). In crimes related to corruption and bribery, the Chilean criminal system does not require any kind of motive to be ascribed to the offender in order to impose a sanction.

There is no general legal definition of bribery (or at least not just one). Bribery is punished in different provisions of the Criminal Code (Articles 248, 248 bis, 249 and 250). Criminal conduct is defined as giving, offering or consenting to give an economic benefit or a benefit of any other nature. From the public officer’s perspective, it is receiving, offering to receive, or accepting receipt of that benefit, be it in favour of the employee or a third person. All these types of conduct must be related, in the original conception of the Criminal Code, to the performance or lack of performance by a public officer of an act according to their duties, against their duties, or a specific crime. However, Law No 21,121 includes as a new provision a basic form of bribery consisting of the act of giving, offering, or consenting to a benefit by reason of the position of the public employee, without requesting any conduct by the public officer as a counter-performance for the benefit. In other words, the mere fact of granting/consenting to a benefit is sanctioned as bribery.

With respect to the benefit, it can be an economic benefit or any other kind of benefit (ie, social or sexual).

An exception is stated in Article 251 sexies, according to which, some conduct – such as giving or offering protocol donations, or those of little economic value that are customarily given as manifestations of courtesy and good education – will not be considered as an offence.

Compliance Programmes

Chilean legislation does not include a specific obligation to prevent bribery, corruption or any other corporate crime, nor does it oblige companies to maintain compliance programmes. Nonetheless, Law No 20,393 acknowledges the importance of compliance programmes, and a suitable and effectively implemented crime-prevention model may be an exculpatory factor for the legal entity, as explained in 3.3 Corporate Liability.

Public Officials

Article 260 of the Criminal Code contains a broad definition of public officials, which applies to all offences committed by them. This concept extends to all those who exercise a “public function”, applying to all bodies created or dependent on the state. In this respect, it includes situations that clearly go beyond the restricted technical notion that administrative legislation confers to the term “public official”.

Bribery of foreign officials constitutes an exception to the principle of territoriality generally applicable in Chile. In that sense, Chilean courts may have jurisdiction regarding the bribery of a foreign official committed abroad, either by a Chilean national or a foreigner with residence in Chile. The offence consists of offering or promising a benefit, of economic or any other nature, to a foreign public official in return for the foreign public official’s performance or omission of an act, thereby providing an unfair advantage in an international transaction (or business deal) to the offeror of the bribe.

Commercial Bribery

One of the main novelties brought about by Law No 21,121 was the criminalisation of commercial bribery. It punishes an employee or mandatary who requests or accepts an economic or other benefit, for themselves or for a third party, in order to favour or be favoured in the contracting of one bidder over another.

Influence-peddling is punished in Article 240 bis of the Criminal Code. This rule sanctions the public employee who, being directly or indirectly interested in any kind of contract or operation in which another public employee must intervene, exercises influence over the other public employee to obtain a favourable decision for their own interests.

In Chilean legislation, it is not considered an offence for a private person to seek to influence the decisions of a foreign public official.

Criminal Sanctions

There is no specific criminal sanction related to financial record-keeping. However, there are many administrative rules that impose an obligation on corporations to maintain correct accounts and a duty to provide reliable financial information.

There are criminal sanctions, however, regarding partners of external auditing companies that maliciously issue an opinion or provide false information on a financial situation or other matters by issuing a certification or report. In addition, those who provide services in an external auditing firm and alter, conceal or destroy information about an audited entity in order to issue a false opinion about its financial situation are committing a criminal offence.

The Financial Market Commission (Comisión para el Mercado Financiero) is the public entity that supervises corporations in these matters.

The Securities Market Law

There are, nevertheless, specific criminal sanctions for acts that consist of providing false or misleading information to the market (including false information contained in financials delivered to the Financial Market Commission) in connection with publicly traded securities. The relevance of information in stock transactions is recognised in several provisions of the Securities Market Law (Law No 18,045). This law includes several offences that violate the protection of information in transactions of securities, including adulteration, misuse and concealment or improper disclosure of information to be considered in sales decisions, or in the terms of commercial acts involving publicly traded securities.

Stock market abuse

Articles 59 and 60 of Law No 18,045 contain a catalogue of crimes related to stock market abuse. Article 59 punishes the provision of false information to the market. Article 60 contains a series of offences involving the fraudulent acquisition of shares without making a tender offer in cases where it is mandatory to do so; the use or disclosure of privileged information to obtain benefits or to avoid a loss in transactions of public offer values (insider trading); the improper use of values in custody; and the deliberate concealment or elimination of accounting records or custody of securities.

Insider trading

The Chilean legal system defines privileged information (insider trading) as any information related to one or more issuers of shares, to their businesses or to one or more shares issued by them, that is not disclosed to the market, where this knowledge, by its nature, is capable of influencing the quotation of the issued shares, as well as information held on the acquisition or disposal operations to be carried out by an institutional investor in the stock market. Law No 18,045 assumes that the directors, managers, administrators, main executives and liquidators of an issuer of securities or an institutional investor are in possession of privileged information.

In addition to the different types of bribery, Chilean legislation contemplates a wide catalogue of crimes regarding public officials; the most relevant related to corruption are embezzlement of public funds, grant fraud and unlawful negotiation.

Embezzlement of Public Funds

This includes:

• embezzlement by subtraction, which is a crime committed by a public employee who subtracts, or consents to the subtraction by another, from the funds or effects for which they are responsible (Article 233 of the Criminal Code);
• reckless embezzlement, which is a crime committed by a public employee who, through inexcusable negligence or abandonment, provides an opportunity for another person to subtract from the public or private funds or effects under their charge (Article 234 of the Criminal Code); and
• embezzlement by distraction, which is a crime committed by a public employee who applies the proceeds or effects in their charge to their own use (Article 235 of the Criminal Code).

Grant Fraud

This a crime committed by a public employee who defrauds or consents to the defrauding of the state, municipalities or public educational or charitable institutions, whether by causing them loss or depriving them of legitimate profit, in operations in which they intervene by reason of their position (Article 239 of the Criminal Code).

Unlawful Negotiation

This offence punishes public employees who directly or indirectly take an interest in any negotiation, action, contract, operation or management in which they may intervene because of their position. According to the prevailing doctrine, this provision establishes a crime of abstract danger, which is consummated by the mere execution of the conduct, without requiring verification of a result or damage to the fiscal patrimony (Article 240 No 1 of the Criminal Code).

The Chilean Criminal Code distinguishes between two classes of co-operators: (i) the co-perpetrator, legally equated with the perpetrator, although they do not take part directly in the execution of the crime; and (ii) the accomplice in the strict legal sense.

The co-perpetrator is someone who conspires with another and provides the means for the commission of the crime. The accomplice, conversely, is someone who is not included in the definition of co-perpetrator, but who also assists in the execution of the act with previous or simultaneous actions. In the case of the co-perpetrator, they are punished with the same penalty as the perpetrator, while the accomplice is punished with a lesser penalty.

Lobbying activities have been regulated, since 2014, by Law No 20,730, which concerns all the steps taken to promote private interests before public servants and authorities. The basic principles of this regulation are to give publicity to and create the obligation for keeping a registry of the following:

• meetings and audiences requested by lobbyists and particular interest managers that seek to influence public decision-making processes;
• travel undertaken by the authorities and public servants in that capacity; and
• gifts received by the authorities and public servants by virtue of their position.

The Law prescribes administrative sanctions for public officials who violate the obligation of registry or publicity as the law requires, providing sanctions such as fines, making the offender’s identity known on the official website of the service in question, and giving account of the infraction in the public account rendered by the service, among others.

Lastly, the law explicitly indicates that its provisions do not preclude the eventual criminal liability that the conduct in question may lead to, that is, in cases of bribery and incompatible negotiation.

Limitation periods are established in consideration of the nature of the criminal offence:

• crimes (crímenes) have a limitation period of 15 years in cases where the law imposes a penalty of life imprisonment, or ten years in other cases;
• misdemeanours (simples delitos) have a limitation period of five years; and
• offences (faltas) have a limitation period of six months.

The limitation period is suspended once the defendant is charged with a crime.

Law No 21,212 introduced certain common rules for crimes committed by public officials, one of these being the suspension of the statute of limitations of the crime while the respective official is in office, in order to prevent impunity with the passage of time.

If the accused leaves the country at any time during the limitation period, the limitation period runs at half-speed, that is, two days abroad count as one day in Chile for the purposes of calculating the limitation period.

In principle, only crimes committed in Chile can be prosecuted before Chilean courts. There are only a few exceptions to this. The extra-territorial reach of Chilean criminal law is specifically regulated in the Code of Organisation of the Courts (Código Orgánico de Tribunales). This includes crimes committed abroad by Chileans against Chileans, if the offender returns to Chile without having been prosecuted abroad, in cases where bribes are accepted by Chilean public officials abroad, or the bribery of a foreign public official committed by a Chilean.

In addition, most of Chilean legal literature and jurisprudence understands that the Chilean state can prosecute crimes if the execution of a criminal act begins in Chile, even though its effects occur in another country, or if the execution of a crime begins abroad, but it has consequences in Chile.

Since the enactment of Law No 20,393 on Criminal Liability of Legal Entities (2009), the list of offences for which a company can be held criminally liable has been extended several times. Before the enactment of Law No 21,595, companies could only be criminally liable for bribery, money-laundering, financing of terrorism, receipt of stolen goods, disloyal administration, commercial bribery, unlawful negotiation, misappropriation, certain conduct related to water pollution and illegal fishing activities and, from December 2022 onwards, computer crimes.

Law No 21,595 on Economic and Environmental Crimes

Law No 21,595 on Economic and Environmental Crimes introduced profound changes into Law No 20,393, which began to take effect in August 2024. According to this new law, companies will be criminally liable for every “economic crime” listed in Law No 21,595, whether or not they are considered economic crimes by that law. This translates into more than 200 offences, exponentially expanding the list of imputable offences. Among these, it is worth highlighting fraud, collusion, corruption between individuals, crimes related to insolvency, and environmental crimes, which are all crimes created by the same law.

After the enactment of Law No 21,595, the legal requirements for corporate liability are the following:

• the illegal conduct consists of the specific crimes listed by the law, which has been relevantly expanded;
• the illegal act is carried out by a person who holds a charge, function or position in the legal entity; a person who provides services to the company managing their affairs before third parties, with or without representation; a person related in the previous terms with a different legal entity, that provides services to the company managing their affairs before third parties, with or without representation or that lacks operational autonomy with regard to it, when there are ownership or participation relationships between them;
• the act has not been exclusively committed against the legal entity; and
• the perpetration of the criminal act was favoured or facilitated by the lack of effective implementation of a suitable crime-prevention model by the legal entity.

Law No 20,393 on Compliance Programmes

According to Article 4° of Law No 20,393, compliance programmes will be considered appropriate for having the aforementioned exemption effect, provided that – taking into account the company’s corporate purpose, line of business, size, complexity, resources and activities – they seriously and reasonably consider the following aspects:

• identification of the activities or processes of the legal entity that involve the risk of criminal conduct;
• the establishment of protocols and procedures to prevent and detect criminal conduct in the context of the activities referred to in the previous point, which must necessarily consider safe reporting channels and internal sanctions in the event of non-compliance;
• assignment of one or more persons as responsible for the application of said protocols (provided with independence, effective management and supervision powers, direct access to the administration, and the material and immaterial resources and means necessary to adequately carry out their tasks); and
• the provision of periodic evaluations by independent third parties and mechanisms for improvement or updating.

Division of responsibility for criminal conduct

Regarding all the above-mentioned offences, the public prosecutor may seek both the individual responsibility of those who performed the conduct and the criminal responsibility of the company. However, the Public Prosecutor’s Office has no institutional guidelines that state that either individuals or companies must be preferentially prosecuted. Moreover, managers are not criminally responsible for the mere fact that the company is convicted of a crime.

There is no special provision dealing with the possibility of the same lawyers representing the legal entities and the natural persons involved, and joint representation is common, except where the defence strategies are incompatible (the Bar Code of Ethics and the Criminal Procedure Code are applicable).

In the case of a reorganisation, merger, acquisition, division or dissolution of a company where one of the sanctioned crimes was committed, Law No 20,393 provides that responsibility for such acts is transmitted to the successor.

Mitigating Factors for Individuals

There are no special defences available for individuals charged in connection with bribery or corruption offences. In this respect, offenders have the same defences available as for other crimes (ie, mitigating circumstances such as not having prior convictions, material collaboration with the investigation, self-indictment, etc). Defendants have ample rights of defence – they are granted access to the file from the beginning of the investigation and have broad access to an attorney, including the Public Criminal Defence.

Mitigating Factors for Legal Entities

Compliance programme

In connection with legal entities, they may be exempted from criminal liability, inter alia concerning bribery cases, if, before the criminal offence was executed, they effectively implemented a suitable compliance programme, as mentioned in 3.3 Corporate Liability.

Repair, avoidance, self-reporting

Law No 20,393 on the Criminal Liability of Legal Entities expressly makes certain mitigating circumstances available, such as the repair with extreme diligence of the damage caused by the offence, or the adoption of measures to avoid the reiteration of the offence after the offence has been committed, but before the beginning of the trial. In addition, self-reporting of the offence by the legal representatives of the company to the authorities before the latter become aware that a legal proceeding has been initiated against the company, may also be argued as a mitigating circumstance.

Mitigating Factors in Bribery Cases

Until the enactment of Law No 21,694, effective co-operation with the investigation was a special mitigating circumstance in bribery cases, however, said mitigating factor was comprehensively regulated and expanded to other types of cases, as will be explained in 6.5 Incentives Provided to Whistle-Blowers.

Mitigating Factors in Economic Crimes

In addition, even though effective co-operation will remain as a mitigating factor, other available defences will vary if the offence is considered an economic crime. According to Law 21,595, in those cases, the mitigating factors of diminished culpability (such as absence of seeking economic benefit for oneself or a third party or omission to prevent the crime while being in an intermediate or superior position), limited harm (more than 40 and less than 400 monthly tax units or UTM), greatly diminished culpability (such as acting in the interest of needy people, or due to pressing personal need, among others) and trifle (harm of less than 40 UTM) will apply.

In general, the Chilean criminal system does not contemplate exceptions of any kind regarding bribery or corruption offences. However, Article 251 sexies of the Criminal Code presents a special case (see 4.3 De Minimis Exceptions).

Article 251 sexies of the Criminal Code incorporates the logic of de minimis exception into the Chilean system. The provision allows conduct that could constitute crimes of bribery or corruption where these are in respect of official or protocolary donations of little economic value that are customary as manifestations of courtesy and good manners.

Foreign officials or public servants are, however, explicitly left out of the scope of this provision.

The Chilean criminal system does not contemplate exemptions with respect to bribery or corruption offences within the scope of a specific sector or industry.

Companies are not subject to supervision by regulatory entities for compliance with anti-corruption laws. It is beyond the scope of the Prosecutor’s Office to issue regulations or measures to create incentives to self-report a known or suspected violation.

According to Law No 20,393 on the Criminal Liability of Legal Entities, self-reporting may constitute a mitigating circumstance if it is performed by the legal representatives of the company before the applicable proceeding is initiated.

For individuals, penalties for bribery, embezzlement, grant fraud and unlawful negotiation are as follows.

Bribery

The penalty for the briber will mainly depend on the kind of bribery and the amount of economic benefit:

• For “bribery without counter-performance”, ie, a crime that consists of the mere fact of giving, offering, or consenting to a benefit by reason of the position of the public employee, the penalty for the briber is 541 days to three years of imprisonment, where the benefit is offered or given; and 61 to 540 days, where the benefit is consented to. In addition, a fine equal to the benefit must be imposed (where the benefit is not an economic one, the fine is from 25 UTM to 250 UTM) and restriction from working as a public employee for a period of three years and one day up to five years.
• For bribery that consists of giving, offering or consenting to a benefit for a public official to perform or for having performed an act proper to their office, the briber will be punished with 541 days to five years of imprisonment, in the case where the benefit is offered or given; and 61 days to three years, in the case where the benefit is consented to. In addition, a fine from 100% to 200% of the benefit (where the benefit is not an economic one, the fine is from 50 UTM to 500 UTM) and restriction from working as a public employee for a period of five years and one day up to seven years will also be imposed.
• For bribery that consists of omitting or having omitted an act proper to the office of the public employee, or to performing or having performed an act in breach of the duties of their office, including exercising influence over another public employee in order to obtain a decision that may generate a profit for a third party, penalties range from three years and one day to ten years of imprisonment, if the benefit is offered or given; and 541 days to five years, if the benefit is consented to. In addition, a fine of between 200% and 400% of the benefit (where the benefit is not an economic one, the fine is from 100 UTM to 1,000 UTM) and restriction from working as a public employee for a period of seven years and one day up to ten years will be imposed.
• For bribery that consists of offering or consenting to a benefit for the public official to commit some specific offences (referred to in Article 249), penalties range from three years and one day to ten days, to five years, if the benefit is consented to. In addition, a fine must be imposed, equal to 400% of the benefit (where the benefit is not an economic one, the fine is from 150 UTM to 1,500 UTM) and restriction from working as a public employee for life.
• Bribery of foreign officials is sanctionable with imprisonment from three years and one day to ten years, restriction from working as a public employee for a period of seven years and one day to ten years, and a fine from 200% to 400% of the amount of the bribe. Where the benefit offered is not an economic one, the fine will range from 100 UTM to 1,000 UTM.
• According to Article 251 quater of the Criminal Code, any person convicted of the aforementioned crimes will be barred from working in companies that have entered into contracts with the state, or in companies where the state has a majority holding, or in companies that grant a service to the state or provide a public service.

Embezzlement of Public Funds

• Embezzlement by subtraction – the penalties depend on the amount of the subtraction. If it is less than USD270, the penalty of imprisonment ranges from 541 days to five years; if it exceeds USD270 but is less than USD2,700, the penalty is imprisonment for three years and one day to ten years; and if it exceeds USD27,000, the penalty is imprisonment for five years and one day to 15 years. In all cases, a fine of 200% of the amount subtracted and restriction from working as a public employee for a period of five years and one day up to seven years must be imposed.
• Reckless embezzlement – there is an obligation to return the amount or effects misappropriated, and restriction from working as a public employee for a period of 61 days up to three years.
• Embezzlement by distraction – this carries a fine of 50% to 100% of the amount of the damage caused and restriction from working as a public employee for a period of five years and one day up to seven years. If the refund has not been verified, the penalties indicated in “embezzlement by subtraction” will be applied.

Grant Fraud

The penalty will depend on the amount involved. The default penalty is from 541 days to five years of imprisonment, but if the damage exceeds USD2,700, the penalty is from three years and one day to ten years; and if the damage exceeds USD27,000, the penalty is from five years and one day to 15 years. In any event, it carries a fine of half of the total amount of the damage caused and restriction from working as a public employee for a period of five years and one day up to ten years.

Unlawful Negotiation

The penalty associated with this crime is imprisonment from 541 days to five years, a fine of half of the total amount of the damage caused and restriction from working as a public employee for a period of five years and one day up to ten years.

General Notes

It is worth saying that all sentences of more than five years and one day are effectively served in jail (no benefits or agreements with the prosecutor are allowed). However, when the offence is considered an economic crime, according to Law 21,595, a differentiated and stricter regime of substitutive penalties applies, which limits the possibility of serving the sentence without imprisonment.

In addition, when the offence is considered an economic crime, additional consequences to the penalty include:

• fines, according to the “day-fine” (días-multa) system of Article 27;
• prohibition of holding public, managerial or executive positions and contracting with the state; and
• confiscation of profits, including the possibility of confiscation of everything obtained as a consequence of the crime and its imposition, even when there is no conviction against those responsible.

Finally, regarding legal entities, according to Law No 20,393 on the Criminal Liability of Legal Entities, the available penalties for corporate entities, in the case of acts of bribery, include the imposition of fines (of up to approximately USD20 million for the worst cases), temporary prohibition to enter into contracts with government bodies and/or temporary loss of the right to receive government benefits, and even in some cases dissolution of the company. Law No 21,595 introduces the supervision of the legal entity and the confiscation of assets as available penalties.

Penalty Assessment

As previously stated, each crime has a specific penalty established by law. The Criminal Code contemplates general rules for penalty assessment, including mitigating and aggravating factors, such as recidivism. In this respect, the penalty is determined applying the following factors:

• the penalty assigned by law to the crime;
• the degree of completion of the crime (attempted crimes have a lower penalty);
• the kind of criminal intervention (perpetrator, co-operator or accomplice);
• mitigating and aggravating circumstances; and
• the extent of the damage caused by the crime.

Agreements

The law contemplates the possibility of reaching an agreement in order to terminate the case without going to trial, either through a monetary settlement or deferred prosecution agreements.

Plea agreements are available when the conviction sought by the Prosecutor’s Office does not exceed five years of imprisonment. When defendants acknowledge the crime for which they are being prosecuted, they may apply for a reduced conviction, with the authorisation of the judge.

There are no other guidelines that judges and/or prosecutors should follow in any of these situations.

Mitigating and Aggravating Circumstances in an Economic Crime

It is worth mentioning, once again, that if the crime is considered an economic crime according to Law No 21,595, the mitigating and aggravating circumstances available will change. As mentioned in 1.4 Recent Key Amendments to National Legislation, this law introduced a differentiated system of aggravating and mitigating factors more appropriate to business crime, which is based on two elements:

• culpability, according to the position held by the person in the organisation (the higher up the hierarchy, the greater the penalty; the lower down the hierarchy, the lower the penalty) and the way in which that position is enacted (the greater the intervention, the greater the penalty; the less the intervention, the lower the penalty); and
• magnitude of harm, specifically the generation of harm or damage and the efforts to mitigate them (additionally in this regard, Law No 21,595 establishes a special regime to determine the effect of the penalty).

Chilean legislation does not include a specific obligation to disclose bribery, corruption or any other corporate crime. However, there are incentives to do so.

Regarding individuals, self-reporting or substantial co-operation in the context of a criminal investigation may be considered as mitigating factors when considering the extent of criminal responsibility.

The recently enacted Law No 21,694 established new legislation regarding effective co-operation and co-operation agreements. However, because it requires providing information beyond self-involvement in the felony, it is explained in 6.5 Incentives Provided to Whistle-Blowers.

Law No 20,393 on the Criminal Liability of Legal Entities provides incentive mechanisms for companies to self-denounce. Thus, if the managers of a company report their own misconduct before the start of a criminal prosecution, they will have the right to a reduced sentence.

There is no special self-disclosure procedure, however, general legislation contemplates different chances for the defendant to provide information or documentation.

Filing a Self-Report

Article 179 of the Criminal Procedure Law allows anyone accused of a felony to demand that the Public Prosecutor’s Office start an investigation. Although it is a rule designed to be used by those who are informally and wrongfully accused of a criminal offence, there is no legal reason why it cannot be used to provide information of a potential offence as a form of self-disclosure.

Providing Information During the Investigation

The Public Prosecutor’s Office may ask for information from any individual or company through a written document. Although a defendant cannot be forced to provide said information due to the right to avoid self-incrimination, it can voluntarily deliver it. Even if the public prosecutor does not ask for any information from the defendant, they can handle it through the public prosecutor’s computer systems.

Testifying During the Investigation

In most cases, self-disclosure is made by the deposition of the defendant, or the legal representative of the company being investigated, in the offices of the public prosecutor, usually before the prosecution formally offers a deferred prosecution agreement or a plea agreement.

Collaborating During the Trial

The defendant has the right to testify and provide evidence during the criminal trial, and if the testimony and evidence are useful to clarify the facts, the criminal court should recognise this as a mitigating circumstance.

Until recently, due to the absence of legal regulation, whistle-blowing was not a widespread practice in the Chilean system. The Chilean criminal procedural system allowed the prosecutor to enter into agreements with individuals, generally approved by the judge or court, but this was more of a general rule than a direct regulation to protect whistle-blowers.

The recently enacted Law 21,694, regulates effective co-operation and co-operation agreements, as will be explained in 6.5 Incentives Provided to Whistle-Blowers. Co-operation agreements can involve protection measures such as the concealment of identity, advanced deposition, remote deposition, police protection, identity change or any other suitable protective measure. Whether this new legislation will be effective at promoting and protecting whistle-blowers is yet to be determined.

There is no regulation of the above in the private sector, so individuals who report suspicious or illegal conduct within a company will depend on that company’s internal policies. Due to the increased application of compliance programmes in recent years, it has become more common for companies to have systems which protect whistle-blowers.

Before the enactment of Law No 21,694, incentives for whistle-blowers were limited to substantial collaboration, which is a common mitigating circumstance, and the former effective collaboration, which was a special mitigating circumstance available only to a few types of felonies, such as, corruption-related offences and drug trafficking.

However, the recently enacted Law No 21,694 significantly modified co-operation in criminal procedures, establishing a new legislation regarding effective co-operation and co-operation agreements.

Effective co-operation is a reinforced substantial collaboration, requiring the administration of precise, truthful and verifiable information that allows clarification of the facts under investigation, the identification of the perpetrators, the prevention or impediment of other crimes, or that facilitates any confiscation. This kind of co-operation is available in cases of illicit associations, drug dealing, arms trafficking, terrorism, economic crimes (which include more than two hundred offences), money-laundering and other especially serious crimes.

The court must recognise the effective co-operation established in a co-operation agreement with the public prosecutor (reducing the penalty by one or two degrees) but can also recognise it without one (reducing the penalty by one degree). If the co-operator was involved in the felony, they must provide information beyond their self-involvement in it.

Qualified effective co-operation requires the administration of precise, truthful and verifiable information that makes it possible to:

• identify the leaders, criminal bosses or financiers of illicit associations and presuming their intervention in crimes;
• identify products, money or the source of income of illicit associations and facilitate their confiscation; or
• identify the place where someone was a victim of kidnapping, child abduction, human trafficking or murder.

This kind of co-operation is available in the same cases as the non-qualified co-operation, but it can only be recognised through a co-operation agreement with the public prosecutor.

This kind of co-operation can severely reduce the penalty of a crime (by up to three full degrees), or even stop the prosecution entirely, through a final dismissal of the criminal facts (sobreseimiento definitivo). A condemned individual can also enter this type of agreement to significantly shorten their sentence.

If the public prosecutor does not fulfil its obligations from the co-operation agreement, the co-operator can demand that the criminal courts decree them, unless the co-operator did not fulfil theirs.

In general, Chilean law does not provide for administrative sanctions for corporate entities in the case of violation of anti-corruption laws. However, they may face administrative penalties in cases of violation of specific administrative provisions which indirectly aim to avoid potential corruption or conflicts of interest. This is the case, for example, with violations of the recently introduced provision that prohibits corporate entities from financing political campaigns or parties, which may be punished with monetary fines.

Individuals may also face criminal prosecution, risking penalties that include fines, prohibition from exercising a public office, and imprisonment.

Administrative liability in the case of individuals is in general only applicable for anti-corruption violations committed by public servants and is enforced by the General Comptroller’s Office. However, as is the case for corporate entities, there are certain special administrative penalties that may be applicable to individuals in general in the context of violations of limits applicable to the financing of political campaigns.

The law does not contemplate civil enforcement by government agencies. However, anyone who suffers damage by an act – whether committed by entities or individuals – that contravenes anti-corruption laws may file a civil action against that entity, pursuant to general tort law.

The public bodies in charge of the prosecution of the crimes and administrative infractions previously mentioned are the Public Prosecutor’s Office and the Comptroller General of the Republic, respectively. The interaction between these two public bodies is not expressly regulated, but each of them falls within its exclusive sphere of competence: the public prosecutor investigates and pursues the punishment of conduct that constitutes a crime, and the comptroller general investigates and sanctions conduct that constitutes an administrative fault.

As previously mentioned, the area of jurisdiction of each public agency depends on whether the acts of corruption constitute only administrative offences (in which case only the Comptroller General of the Republic is involved) or also constitute criminal offences (in which case, the Public Prosecutor’s Office is involved and litigates before the courts with criminal jurisdiction).

The administrative body – the Comptroller General of the Republic – has little discretion to mitigate the fulfilment of its powers; that is, it must investigate and punish any cases of corruption that may arise, in accordance with the law. However, as has been described in previous sections, the Public Prosecutor’s Office is entitled to mitigate the enforcement of criminal law through different mechanisms (see 1.3 Guidelines for the Interpretation and Enforcement of National Legislation, 5.2 Guidelines Applicable to the Assessment of Penalties and 6.5 Incentives Provided to Whistle-Blowers).

The Itelecom Case

Regarding landmark investigations, the Itelecom case has generated interest regarding investigation of the bribery of several public servants by the executives of a legal entity, involving various municipalities. In this case, the former mitigating circumstance of Article 260 quater of the Criminal Code (substantial collaboration with the clarification of the facts) was recognised for the first time since the enactment of the anti-corruption law. This circumstance was a qualified version of the general mitigating circumstance, the predecessor of the effective collaboration, therefore Itelecom could become a model for the recognition of new effective co-operation in future cases.

The Municipalities Cases

In recent years, a considerable number of municipalities have been involved in corruption investigations, usually involving embezzlement of public funds and other offences. Such are the cases of former Mayor Raúl Torrealba, who is being investigated for state fraud, unlawful association, tax crimes and money laundering; former Mayor Cathy Barriga, who is being investigated for embezzlement and forgery of public documents; and Mayor Daniel Jadue, who is being investigated for embezzlement, bribery, fraud, insolvency crimes, and disloyal management. Although these are the most notable cases, quite a few municipalities are currently undergoing investigation, which is of great concern to the authorities and the general public.

The “Caso Convenios”

Another landmark investigation, the “Caso Convenios”, has recently sparked an arduous debate in the public arena, as it involves the transfer of public money to 30 private foundations throughout the country. The Public Prosecutor’s Office is now investigating different aspects of the case, which exploded on 16 June 2023 in Antofagasta, in the north of Chile, with the transfer of resources from the Ministry of Housing to the Democracia Viva foundation, linked to the Revolución Democrática party of President Gabriel Boric’s coalition. This case has generated a strong reaction from the authorities, who have condemned the events and are committed to promoting improvements to safeguard transparency and probity in the administration, as well as to impose the appropriate sanctions.

Many of the recent cases of bribery or corruption have ended with plea agreements and those convicted were not sentenced to jail, but severe penalties of fines and restrictions were imposed.

However, it is uncertain how the recent amendments will alter future cases. Law No 21,595 on Economic Crimes modified sentencing rules, restricting the penalties other than imprisonment in these types of cases. Law No 21,694 regulated effective co-operation and co-operation agreements, but nobody can ascertain what guidelines the public prosecutor will follow on the matter. Therefore, the level of sanctions imposed in the past is not likely to be representative of the future.

Chilean legislation does not include a specific obligation to maintain compliance programmes. Nonetheless, Law No 20,393 acknowledges the importance of compliance programmes, and a suitable and effectively implemented crime-prevention model may be an exculpatory factor for a legal entity, as mentioned in 3.3 Corporate Liability.

As explained in 3.3 Corporate Liability, Article 4° of Law No 20,393 specifies the minimum requirement of a compliance programme to have an exemption effect. However, recent changes in the legislation have only been fully in force since September 2024, and therefore, the prosecution bodies still do not have further guidelines on this matter.

Nevertheless, the best practices for compliance programmes in Chile are similar to the best practices applied in the US and EU, such as, identifying risks in the specific activities that the corporation carries out; establishing cross-checks between different areas of the company and anonymous reporting channels, investigations and sanction procedures; periodic revisions made by third parties; and continuous improvements to the programme.

Chilean legislation does not contemplate compliance monitors as part of a corporate resolution, but Law No 20,393 considers the penalty of supervision of the legal entity, in which the criminal court appoints a supervisor responsible for ensuring that the legal entity effectively develops, implements or improves an adequate crime-prevention system and controls said preparation, implementation or improvement for a minimum period of six months and a maximum of two years. Therefore, the institution exists, but as a penalty imposed by the court, not by the enforcement bodies.

Nevertheless, the Public Prosecutor’s Office could propose such measure to the legal entity as part of a deferred prosecution agreement, but it would need the acceptance of the corporation and the approval of a guarantee judge (Juez de Garantía).

Many of the modifications enacted by Law No 21,121 were adopted with the purpose of fulfilling international commitments in the matter of corruption, and as a reaction to certain cases of corruption that have occurred in recent times in Chile.

The current legislation deals severely with corruption and bribery and is expected to be more effective in the future, but it is still too early to determine its efficacy.

As previously noted, changes in corruption and bribery legislation have been made in Chile only recently. In addition, there are three relevant projects in progress, which seek to improve the prosecution of corruption.

Bill No 15975-25 on Economic Intelligence Against Crime

The first one is Bill No 15975-25 on Economic Intelligence Against Crime, which aims to strengthen the investigation of illicit money by, among other measures, creating intelligence units within the National Customs Service and the SII and regulating their co-ordination with the financial analysis unit and the state intelligence system. Although the project focuses on crimes such as money-laundering, terrorist financing and other offences linked to organised crime, the authorities have argued that “controlling the money is also controlling corruption”, because it entails supervision of the way in which organised crime gangs, due to their great economic power, manage to get into and corrupt decision networks, thereby restricting the state’s capacity to react.

Bills No 14594 and 15523 on Issues Linked to Municipal Probity and Transparency

The second one is Bills No 14594 and 15523, on issues linked to municipal probity and transparency. This legal initiative seeks to establish transparency and accountability requirements for all private institutions (both for profit and non-profit), specifically, all those that receive contributions, subsidies, direct transfers, tenders or public funds of any type – from municipalities and regional governments to powers of the state. This is so that the Comptroller General of the Republic can supervise all public funds delivered to these entities. In addition, it has been proposed to incorporate regulations for the prevention of corruption and to expand citizen participation mechanisms. Likewise, the project seeks to raise the levels of probity and transparency in municipal management and municipal participation corporations and foundations, which have been involved in public corruption scandals.

Bill No 14795-07 Seeking to Establish a New Criminal Code

Finally, Bill No 14795-07 seeks to establish a new criminal code. The current Criminal Code was enacted in 1875 and, although it has undergone constant modification and is complemented by multiple laws that deal with new crimes, there is consensus among all actors in Chile on the need for a modern criminal code. Consequently, since 2013, three drafts of a new criminal code have been presented as part of an initiative driven by the Ministry of Justice, the latest of which was submitted in October 2018.