THE FIGHT AGAINST CORRUPTION IN CHILE
Claudia Alejandra Forner Ortega*

I. INTRODUCTION
This paper intends to show how corruption crimes and offences are investigated in Chile, identifying theprincipal agents involved in the investigations, the law governing them (including procedure), and also thetools and techniques available for prosecutors.
It will also try to approximate the problems faced by prosecutors in investigations, and the possible
solutions to those problems. Finally, some examples of corruption cases will be given.
To begin, it is necessary to give a brief background of the Chilean political and legal system, so as toprovide a context in which the following discussion can be understood.

A. Legal and Political Background of Chile
1. Political System
Chile is a democratic republic, and has a presidential system of government. The Constitution has been
in force since September 1980, and has undergone two large-scale reforms since then.1
The President,2 elected for a period of four years, is head of State and appoints the cabinet. The President
cannot be re-elected for a consecutive period. There is a bicameral legislature (congress) with a Senate(upper house) and a Chamber of Deputies (lower house). The Senate comprises 38 members elected foreight years and renewed partially every four years; the Chamber has 120 members who are all elected every
four years at the same time as the President. Congress meets in the city of Valparaíso.
2. Geographic and Administrative Division
Chile is a unitary state. It is divided into 15 administrative regions, each of which is headed by anintendente appointed by the President. Every region is further divided into provinces with a governor, also
appointed by the President. Each province is divided into municipalities, lead by a major (alcalde).
3. Criminal Procedure System
Chile thoroughly reformed its criminal procedure system from 2000 to 2005, with the gradual adoption ofa new Criminal Procedure Code (CPC) in all regions of the country. The reform changed the agencies
involved in the fight against crime and the conduct of investigations. Before the new code was adopted,
Chile’s criminal system was mainly inquisitorial; the new code introduced an adversarial system and thefigure of the public prosecutor.
4. Chile and the Fight against Corruption(i) Perception of Corruption
The fight against corruption is a very important issue in Chile, although there are not as many cases as inother Latin American countries.3 An explanation for the low level of corruption might be the high intolerance
that exists in all sectors of society to it. Nevertheless, as the media coverage and judicial proceedings have,* Legal Adviser, Specialized Anticorruption Unit, Public Prosecutor’s Office, Chile.
1 The first major reform occurred in 1989, and the most recent in 2005.
2 The current president of Chile is Ms. Michelle Bachelet.
3 In Transparency International’s 2006 Corruption Perception Index, Chile is ranked 20 out of 163 countries.

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in recent years, highlighted some noteworthy matters in the fight against corruption, serious corruption
allegations have surfaced in various public agencies, including the government sports agency, and a recent
public opinion poll indicated that the perception of domestic corruption is greater than that registered during
a major corruption scandal in 2002.4(ii) Government Actions to Fight Corruption
Although there is regulation related to corruption crimes and offences, since the poll indicated a highperception index of this kinds of conduct, in November 2006, President Michelle Bachelet announced ananti-corruption programme and created a commission co-ordinated by the Minister of Economy which
includes the head of Transparency International Chile, academics and other officials. This commission has
accomplished one of its purposes: drafting a Probity Code that should be mandatory for all public officers
while performing their duties. Other tasks, related to legal reform, are still pending, but they are working toachieve their goals as soon as possible.
(iii) International Conventions Approved by Chile
Chile signed the United Nations Convention against Corruption (UNCAC) on 11 December 2003 and it
was ratified on 13 September 2006, the date when the ratification instrument was deposited at the United
Nations.
Previously, Chile had signed and approved the Organization of American States (OAS) Convention
Against Corruption, which was enforced on 15 September 1998.
Chile has also signed and approved the Organization for Economic Co-operation and Development(OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

II. INVESTIGATION, PROSECUTION AND SANCTIONING OF CORRUPTIONCRIMES AND RELATED OFFENCES
A. Law governing Corruption Crimes, Offences and Misdemeanours
1. Penal CodeThis conduct is mainly addressed in the Chilean Penal Code (PC) which is the fundamental law incriminal matters.
There is a special chapter dedicated to corruption crimes and misdemeanours called “de los crimenes ysimples delitos cometidos por funcionarios publicos en el desempeño de sus cargos” (Crimes and Misdemeanours
Committed by Public Officials Within the Course of Their Duties).
The main crimes and offences contained in the referred chapter are:
•
•
•
•
•
•
•
•
•

Embezzlement/Misappropriation of Public Funds
Other diversion of property by a public official
Fraud affecting public property
Active and passive bribery of national public officials
Bribery of foreign public officials and officials of public international organizations
Trading in influence
Abuse of functions
Abuse of authority
Illicit enrichment.

Sanctions for the most serious offences:

4 The poll was conducted by the Centro de Estudios Públicos (CEP). (See part 6 of the December 2006 poll at
http://www.cepchile.cl/dms/lang_1/cat_443_inicio.html).

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2. Special Laws
There are other crimes and offences which may be committed by public officials within the course of
their duties and these are contained and provided for in special laws.
Money laundering is addressed by a special law (No. 19,913), as are procedures for asset recovery(generally related to economic issues).

B. Procedure and Intervenient AgentsThe law governing all the stages of the investigation and prosecution of corruption crimes and related
offences is principally found in the Chilean Criminal Procedure Code (CPC). As noted above, Chile went
through a complete reform of its criminal procedure system from 2000 to 2005, with the adoption of a new
CPC. This reform brought changes in the agencies involved in investigations and prosecution of crimes,
including corruption.
Before the new code was adopted, Chile’s criminal system was inquisitorial, with all powers concentrated
in the hands of the criminal court judge: the same judge conducted the pre-trial investigation (through thepolice), conducted the trial and ruled on the case in the first instance. This was a written procedure.
The reform and the new code introduced an adversarial system and the figure of the public prosecutor
and created new Courts, based on oral procedures.
1. The Guarantee Courts and the Criminal Trial Courts
As part of procedural reform, the Organic Code was also modified, in order to incorporate the newly
created Guarantee Courts and Criminal Trial Courts, which have replaced the previous criminal courts. The
Guarantee Courts are charged with deciding upon criminal procedure issues that involve the fundamental
rights of persons involved in criminal investigations. They can also rule in minor cases (those that haveassociated lower sanctions) such as most of the corruption offences.5 They are staffed by Guarantee Judges.
The Criminal Trial Courts hear cases of criminal offences of all kinds, including corruption. Appeals areheard by Courts of Appeal with further review possible by the Supreme Court.
2. The Public Prosecutor’s Office
The new criminal procedure reform has instituted the Public Prosecutor’s Office (PPO) as the publicagency in charge of investigating and prosecuting alleged criminal activities, including corruption. It has
been incorporated into the Constitution, as an independent organism, headed by the National Prosecutor.6
The selection process for the National Prosecutor involves the participation of the President, Senate andSupreme Court. A candidate for National Prosecutor is first selected by the President from a list of fivepossible candidates supplied by the Supreme Court. The President can only nominate the proposed
candidate as National Prosecutor providing he or she is approved by a two-thirds majority vote in the Senate.
As the three State Powers intervene in the designation, this ensures that political considerations do not
influence the investigation and the prosecution of any type of crime, especially corruption.

5 These judges may rule in cases where the punishment required by the prosecutor is five years or less.
6 Before the legal reform, there was no Public Prosecutor’s Office in Chile, and that role was performed by judges.

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The current National Prosecutor, Mr. Sabas Chahuan Sarras, was elected in October 2007, and assumed
the post on 1 December 2007. Former National Prosecutor, Mr. Guillermo Piedrabuena Richard, who had
been the National Prosecutor since 2000, finished his eight year period at the end of last November. He was
the first National Prosecutor in the history of Chile.
The Public Prosecutor’s Office is hierarchically organized. There are 18 regional prosecutor’s offices,
including four for the Metropolitan region of Santiago (the capital city), each with a regional prosecutor anddeputy prosecutors who work under him or her.
The National Prosecutor can issue general instructions on different kinds of offences. Of particularimportance regarding corruption criminal prosecution is the National Prosecutor's Instruction 29 of January
2007 (“Instruction 29”). However, the National Prosecutor is prohibited from sending instructions toprosecutors on particular cases (only regional prosecutors can intervene in individual cases, due to Article
17 of the Organic Constitutional Law on the Public Prosecutor’s Office).

C. The Investigation
1. Investigation Phases
Criminal investigations are divided into two broad phases in Chile: (1) the “preliminary investigation”
conducted by the prosecutor with the assistance of the police investigators; and (2) the “formalized
investigation” which commences once the prosecutor informs a person, in the presence of the Guarantee
Judge, that he or she is being investigated for one or more offences. Both procedures will be referred to fromthen on as an “investigation”, since the only difference between them is that when formalized, the suspect isformally notified of its existence, and it can last a maximum of two years.7
During their informal phase, investigations are generally known only to the intervenient parties (theprosecutor, the suspect and his or her attorney, and the victim), unless the prosecutor orders secrecy for a
maximum period of 40 days. A suspect who learns of an investigation, however, can seek an order from a
Guarantee Judge requiring the formalization of the investigation.
There is also the possibility, during the preliminary phase, that the suspect is not at all aware of theinvestigation, because the prosecutor needs it to be confidential. This preliminary investigation has no time
limits. The only limit will be the period during which prosecution might be brought (prescription of theoffence).
Once the investigation is formalized, it can last a maximum of two years, unless the Guarantee Judgeestablishes a shorter period. The investigative data can be made known to all the participants, as explained
above. Secrecy can also be ordered by the prosecutor during the formalized phase, in the same terms as
detailed before.
Regarding corruption cases, normally there is a long informal stage, so that when the investigation isformalized, there is little risk to the investigation by reason of the disclosure of the case file. In money
laundering cases secrecy can be maintained for a maximum period of six months, and one of the basic
offences of money laundering can be corruption crimes.
2. Starting an Investigation
Mandatory prosecution is the general rule in Chile, so prosecutors can open a preliminary investigation(i) upon receiving a report of a suspicion; (ii) on their own initiative; or (iii) upon a complaint filed by thevictim.

(i) Report of a Suspicion
Public officials are subject to reporting obligations contained in particular in the CPC and a law governing
public administration. Pursuant to Article 175 CPC, civil servants are required to report any crimes of which

7 There are some other differences between them, but they refer only to procedure, and do not change the nature of theinvestigation.

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they become aware in the course of their duties. Article 55 of Law No 18,834 on the Administrative StatuteEstablishing the Obligations of Public Officials (the “Administrative Statute”) provides for a similar obligation.
Obligations of secrecy or discretion are not an excuse for not reporting an offence.
Sanctions for non-reporting are provided for in the CPC. Pursuant to Article 177 CPC and Article 494 of
the PC, failure to report offences is punishable by a fine of between one and four monthly taxation units(unidades tributarias mensuales, UTM) [USD 64 to 256], which is low.8
A public official who fails to report a crime of which he or she becomes aware because of his or her
functions could be subject to administrative responsibility and disciplinary measures under Art. 119 of Law
No. 18,834. Public officials are generally aware of their obligation to report suspicions of crimes.
For the general public, the CPC expressly provides that any person with the right to disclose information
on suspicions of offences may go to the Public Prosecutor’s Office.9 The regional Prosecutor’s Offices havecall centres, where reports can be made and information can be obtained on criminal offences.
Reports of most corruption cases originate from agencies with oversight powers, and secondarily frompublic officials, due to their obligation. Reports from the general public are unusual.

(ii) Investigation at Prosecutor’s Initiative
If the prosecutor, while investigating other facts, or by chance, finds grounds to suspect that there is acorruption crime or offence occurring someplace, he or she can initiate an investigation by him or herself.
Media allegations might be useful to allow this circumstance.
As a prosecutor is also a public official, the obligation contained in Art. 175 CPC also applies to him orher, so he or she must initiate an investigation in those cases.

(iii) Complaint filed by the Victim
Although victims can thus file complaints, the notion of a “victim” in corruption cases is not the same asthat of a victim of a general crime, because the offence is not perpetrated directly against individuals, but
against society as a whole, causing abstract damage.
Regarding corruption crimes or offences, they mostly cause detriment to public property, so a specialorganism was created to defend and represent the state’s interest: The State Defense Council (SDC).
Before reform, the SDC was in charge of the public accusation in all corruption cases. The SDC is now
confined to the role of plaintiff in two types of cases: those that are liable to cause the State and any of its
agencies an impairment of resources, or those which involve criminal offences committed by government
officials in office. Pursuant to Article 41 of SDC law and Instruction 29, prosecutors are required to informthe SDC within 10 business days, if a preliminary investigation starts concerning these cases. If the SDC
wishes to file a lawsuit, it has the same rights and obligations as any other plaintiff and does not benefit fromany procedural privileges.
3. Investigative Tools and Techniques
Basic investigative techniques available to prosecutors in corruption cases include creation of special
investigating prosecutors and units; whistleblower protection; search and seizure; hearing of witnesses inChile, a Chilean consulate abroad or a foreign court (if foreign bribery is investigated); the protection of
witnesses; and restrictions on closing the investigations. Prosecutors can also ask the Court of Appeal foraccess to various “secret” administrative documents. Bank secrecy lifting and wiretaps are also available incertain circumstances.

8 As of December 2007, the value of the UTM was fixed at 34.222 pesos [USD 68.4].
9 Article 173 CPC. Reports of such actions may also be filed with the police, or with any criminal law court, all of whom should

immediately forward such reports to the prosecutor.

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Special enhanced investigative techniques (undercover agents, informants, watched deliveries) are notavailable unless the main offence investigated relates to money laundering, drugs or terrorism.

(i) The Specialized Anticorruption Unit
The National Prosecutor set up the Specialized Anticorruption Unit (the “Specialized Unit’), in May
2003. This national multi-disciplinary unit is currently composed of eight lawyers, accountants and financial
analysts. It assists, counsels and trains prosecutors investigating cases of corruption. The Specialized Unitalso liaises with other agencies such as the Comptroller General, the State Defense Council and the police.
Another specialized unit is in charge of economic crime, money laundering and organized crime.
The Specialized Anticorruption Unit is permanently organizing workshops on different corruption issues,
including the UNCAC, for prosecutors throughout the whole country.

(ii) Specialized Prosecutors
In addition to the Specialized Unit, 46 of the 669 new Chilean deputy prosecutors are specialized in casesof corruption, in the sense that such cases would generally be assigned to them, although they are notexclusively assigned to such cases.
(iii) Specialized Police and Investigators
The Policía de Investigaciones de Chile and Carabineros de Chile are the only police forces in Chile.
Before the criminal procedure reform, they had extensive powers because judges largely delegatedinvestigations to them. They now assist the Public Prosecutor’s Office, and carry out investigative measures
under the direction and responsibility of the prosecutor and provide him or her with their forensic expertisein investigations.
Both police forces have units specialized in economic and corruption crimes. Because legal persons assuch cannot be criminally liable, investigations do not focus on them. The Police would try to identify theindividual responsible for the offence.

(iv) Whistle-blowing and Whistleblower Protection
Chile has recently adopted a law that addresses the protection of government employees who report
irregularities or breaches of the principle of probity.10 This law focuses on the protection of people whoreport the lack of probity of Chilean officials. It does not apply to employees of state-owned and statecontrolled companies, as State-owned companies are subject to the same labor code as private companies.
It has been less than a year that the law came into force, so it’s not possible to make an evaluation of its
functioning.
A few Chilean private companies have introduced whistle-blowing safeguards in their codes of conduct,but that is not mandatory for them.

(v) Witness and Victim Protection
As noted above, in corruption crimes there is no physical victim to identify, so the protection of victims
does not exist in these type of cases. Nevertheless, witnesses may require some protection, so basic
witness protection is available in cases of corruption, whereas enhanced protection is available in cases
related to drugs, terrorism and money laundering.
The protection is organized by the Victims and Witness Support Division of the Public Prosecutor’s
Office and the corresponding regional units.
Protection can be granted from the preliminary investigation until six months after the trial. The level of

10 Law No 20,205 of 24 July 2007, named “Protection to the public official who denounces irregularities and faults to the

probity principle” (Protege al funcionario que denuncia irregularidades y faltas al principio de probidad).

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protection decreases as the criminal process advances: for example, the witness can obtain protection of hisor her identity at the beginning of the investigation, but only for 40 days. The identity of the witness cannot
be secret at the trial stage because the CPC requires all witnesses testifying in an oral hearing to state theirname (Article 307 CPC). The witness’s place of residence can be kept secret. At the trial stage, protection
must meet the additional criteria of the “seriousness” of the situation.11(vi) Wiretaps
Generally, wiretaps are available only for crimes and not for misdemeanors. Although most corruption
crimes have imprisonment sanctions, the provision also includes a disqualification from public office as amain sanction jointly with imprisonment sanctions.
The Public Prosecutor’s Office has said to the courts that because this is a “main sanction” related tocrimes, wiretaps should be available in these type of offences, and most of the Guarantee Judges haveauthorized them; but it’s still not quite common.
Investigative actions that might restrict or affect constitutional rights, such as wiretaps, must be authorized
by a Guarantee Judge (Article 9 CPC). It is easier to obtain an authorization from a Guarantee Judge in cases
involving alleged violent crimes than in economic crime cases. Because money laundering investigations are
subject to special rules, they appear to be generally exempt from this general trend, and where theauthorization of the Guarantee Judge has been necessary, it has been obtained in most money laundering cases.

(vii) Bank Secrecy Lifting
Bank secrecy is one of the main problems encountered in Chile when investigating alleged acts ofcorruption and economic crime.
Bank secrecy is subject to a series of apparently overlapping provisions. Restrictions apply to the powerof a Guarantee Judge to lift bank secrecy.
Article 154 of the General Banking Law distinguishes between bank secrecy and bank confidentiality.
Bank secrecy covers a broad segment of banking operations, such as deposits and placements of any kind
performed by the banks, and this protection extends to the movements and balance of current accounts,
savings accounts, time deposits and other forms of placement. The remaining banking operations are subject
to confidentiality.
Bank secrecy can be lifted by a Guarantee Judge in a corruption case, but the law imposes restrictions.
The General Banking Law authorizes the prosecutor, with the approval of the Guarantee Judge, to examineor request the background related to “specific” operations that have been performed by someone formallycharged and that have a “direct relationship” with the investigation. A second law, the Bank Current
Accounts and Checks Law, also authorizes only the disclosure of “determined financial items” of a current
account, at the request of a prosecutor and with approval of the Guarantee Judge.
For some types of offences and situations, Guarantee Judges have the power to fully lift bank secrecy andorder full disclosure of potentially relevant bank information. Bank secrecy can be fully lifted by the
Guarantee Judge in domestic corruption cases and other cases involving investigations against public
officials for offences committed in the discharge of their duties; there is no requirement that the requests
relate to specific operations or have a direct relationship with the investigation. Recent legislation has given
the Financial Analysis Unit (FAU)12 the power to obtain the complete lifting of bank secrecy from a judge
where money laundering is suspected.

11 A “serious” situation requires that a major threat or danger be proven. The court requires that the prosecutor provides

concrete evidence that the measure is necessary. The regional unit procures equipment to protect victims and witnesses in anoral hearing, such as folding screens which prevent visual contact between the victim and the accused, or closed television
circuits which allow the victim and/or witness to testify in an adjoining room.
12 The FAU is a constituent of the Ministry of Finance, although it is very independent. It is not related to the Public
Prosecutor’s Office.

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In addition to or as a result of the legal limits on the lifting of bank secrecy in corruption cases, there
appear to be significant practical hurdles relating to obtaining bank information. Bank secrecy constitutes, inpractice, a major hurdle in economic crime investigations because of the evidentiary burden that must be
met in order for a judge to lift bank secrecy (even partially). It can take several days or weeks for the
Guarantee Judge to authorize the request of information because he or she requires a great deal of
information before authorizing the request and defining the scope of the “specific” information permitted tobe disclosed. It can similarly take a significant period to obtain the information from the bank.
(a) Distinction between bank secrecy and bank confidentiality
Banks may disclose the information associated with confidential transactions if a person establishes alegitimate interest provided that the bank considers that such disclosure has no negative impact on thecustomer’s net worth. If the bank hesitates, as it may be likely to do in light of the potential liability and theuncertainty about the status of particular information as secret or confidential, the information can only beobtained with a judicial decision.
Responses to information requests to banks can take one or two months, especially when the bank isconcerned about its customer relationship. On the contrary, the request is sometimes answered within acouple of days when a bank fully co-operates and does not require the intervention of the Guarantee Judge.
A bill currently before Congress, the Revised Bill on the Authorization of the Lifting of Bank Secrecy inMoney Laundering Investigations, Bulletin No. 4426-07 (the “Revised Bill”), addresses bank secrecy, but
only with regard to money laundering. For money laundering cases, the Revised Bill (Art. 4) would add aprovision to Art. 154 of the General Banking Law allowing prosecutors, with the approval of a Guarantee
Judge, to obtain access to “any information available or copies of any deposits or other investments or credit
transactions made by any person, community, entity or de facto partnership under investigation, to theextent that such transactions, at the discretion of the Public Prosecutor’s Office, may be connected with, or
contribute to ascertain, the perpetration of such offences”. A similar provision would relax bank secrecy, but
again only for money laundering, under the Bank Current Accounts and Checks Law. These provisions
appear to give Guarantee Judges the same power to fully lift bank secrecy in criminal money laundering
investigations that they currently have for administrative money laundering investigations by the FAU andother corruption cases.
The access to financial information is of paramount importance for the effective investigation of corruption
offences. Bank secrecy constitutes a significant barrier to effective investigation of these cases. The RevisedBill addressing bank secrecy is currently before Congress, but that at present only addresses the complete
lifting of bank secrecy in criminal money laundering investigations, so corruption cases should maintain the
restrictions named above.
The power of the Guarantee Judge to order access to bank information is significantly more restricted inforeign bribery cases, for example, than in domestic bribery cases and administrative money laundering
investigations by the UAF. That’s because of the punishment associated with that offence, which does notreach the legal requirements to allow the lifting of bank secrecy.

(viii) Restrictions on Closing Investigations in Corruption Cases
As written above, mandatory prosecution is the general rule in Chile so a prosecutor can decide not toinitiate or to close an investigation only for reasons specified in the law. These include reasons such as theabsence of evidence or a lapse of the limitation period (at the preliminary investigation stage), or theapplication of a general defence or the non bis in idem principle (at the formal investigation stage).
However, although mandatory prosecution is the general rule, there are a number of exceptions.
Under Art. 170 CPC, discretionary decisions to close an investigation (or not to open an investigation)
are possible for certain crimes. (The same rules apply under Art. 170 to discretionary decisions to close or
not to open a case in the first place.) Art. 170 is applicable to particular for crimes that do not seriously
injure the public interest and carry a minimum penalty of less than 540 days. Most corruption crimes andoffences are subject to a low level of sanctions, and accordingly, some of the offences potentially fall within
the domain of Art. 170.

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Instruction 29 provides some guidance with regard to the rules governing the early closure of cases,
including under Art. 170 CPC. The Instruction (at 5) contains a general statement which indicates that thecriteria for opening and closing cases apply to “offences committed by public officials when exercising theirduties and those that affect public property and companies and entities in which the State participates orcontributes” and includes a general list of offences of that nature. The Instruction states that prosecutorial
discretion is generally excluded for cases of corruption, but the application of the law on issues such asprosecutorial discretion under Art. 170 CPC may depend on a factual and legal analysis of the nature of theparticipation of the public official.13
Under Art. 170, a prosecutor seeking a discretionary closure of a case is required to provide a reasoned
decision to the judge who will notify any victims or intervening parties. The judge can overrule the decision
to terminate, but only on narrow technical grounds or if the victim objects. Victims and intervening parties
can appeal discretionary decisions to close the investigation to higher authorities in the PPO who verify
whether the decision is consistent with general policies and applicable norms.
Investigations can also be suspended, such as when a prosecutor is lacking evidence or cannot investigate
further unless new evidence appears. Instruction 29 requires that the regional prosecutor approves any
suspensions, and that minimal investigative steps -- such as witness hearings or an expert’s appraisal of theaccounting situation -- are performed before a decision to suspend is made.14
As noted above, the formalized investigation commences once the prosecutor informs a person in thepresence of the Guarantee Judge that he or she is being investigated for one or more offences. When theformalized investigation is complete, the prosecutor can formally accuse the suspect and ask for a hearing infront of the Guarantee Judge in order to prepare the trial. Additional alternatives to prosecution are generally
available during or at the conclusion of the formalized investigation. First, prosecutors can propose theconditional discontinuance of the investigation to the Guarantee Judge (if the suspect investigated does notrespect the conditions, the procedure restarts). Second, the suspect and the victim can agree on compensationof the victim unless the prosecutor considers that continuing the criminal procedure is in the public interest.
Instruction 29 recommends that conditional discontinuance be used rarely and excludes compensationagreements for offences perpetrated by public officials or against probity. Nevertheless, as this last agreement
is made between the victim and the defendant, it might occur even if the Public Prosecutor is against it, but
always with the Guarantee Judge’s authorization.
4. Mutual Legal Assistance (MLA) and Extradition(i) Mutual Legal AssistanceThe general CPC reform discussed above has had a significant impact on the MLA system. In addition,
Art. 20 bis of the new CPC provides that foreign requests for MLA shall be handled by the PPO, which shallseek the intervention of a Guarantee Judge as necessary in the same manner as in domestic investigations.
This provision allows prosecutors to supply MLA directly in many cases; judicial intervention is only
required in order to provide MLA where it would be required under domestic law, i.e. principally where
fundamental liberties are at stake. The ability of prosecutors to provide MLA directly has greatly simplified
and accelerated MLA procedures in many cases.
A new MLA unit was created in the PPO in 2004 in order to carry out the new MLA role. It bothconducts relations with foreign countries and provides advice to domestic prosecutors on MLA matters.
13 Instruction 29 specifically prohibits the application of the principle of opportunity in the case of acts in which a public official
has had any level of participation while exercising his or her duties. In this way, although the law does not exclude theapplication of the principle of opportunity for criminal acts in which public officials have participated, if their action takes place
while not exercising their duties, it may be that the fact that they are public officials gives the act a connotation that seriously
affects the public interest, or that by the mere penalty, the use of the authority conferred on the prosecutors in Article 170[CPC] will not be in order. The Instruction does not attempt to apply these principles to the specific nature of foreign bribery
or to foreign officials.
14 Prosecutors can also ask for dismissal without prejudice to the Guarantee Judge, who can authorize it if the suspect is afugitive, if a related civil action is pending, or because of the mental illness of the suspect.

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The new unit is also now the central office for foreign countries seeking MLA. The general changes in
the new CPC and the law of evidence have expanded the scope for co-operation including facilitating
informal co-operation. Available statistics show a steep rise in instances of MLA in the last two years (from a
low number previously).
The new role for prosecutors appears also to have lessened the importance of treaty-based MLA (and its
attendant limitations given Chile’s treaties). In fact, the absence of a treaty is not an impediment in manycases because MLA can be granted on the basis of reciprocity. The current system has been working
effectively and further statutory intervention is not needed at this stage.
There has not been any relevant case law to date.
As discussed above, bank secrecy is a major barrier to effective investigation of economic crime in Chile.
It is also a serious problem for MLA. There would not be any barrier to seizure and confiscation in responseto an MLA request, but there have not been any actual cases to date. Prosecutors have responded to anumber of requests for information about assets held in Chile. In addition, in one case, the Chilean
authorities seized the assets of a foreign national in Chile.

(ii) Extradition
Article 431 CPC sets forth the criteria for active extradition and requires, inter alia, that the offence mustcarry a minimum prison sentence of at least one year. Regarding the Chilean foreign bribery offence, it does
not meet this standard and active extradition is thus currently impossible under the Code provision.
For passive extradition, Arts. 449 CPC and 449 CPC require that:•••

The crime or offence is one for which extradition is authorized under applicable treaties or according
to international principles;
The suspect should have been charged or condemned regarding a crime or offence sanctioned with aminimum of one year’s imprisonment;
The offence should be one for which extradition is authorized under applicable treaties.

(a) Case law
In early 2006, Peru formally requested that Chile extradite former Peruvian president Alberto Fujimori toface, inter alia, corruption charges in Peru. The Chilean authorities detained Mr. Fujimori and extradition
proceedings have been underway. Because of the date of the relevant events, the proceedings are subject tothe old criminal procedure code. In July 2007, the first instance judge denied the extradition of Mr. Fujimori,finding that the evidence submitted by Peruvian government was not sufficient to prove the facts argued in
the extradition request. The Peruvian government filed an appeal on 13 July. The Supreme Court finallyauthorized extradition in September 2007, and at the time of writing, Mr. Fujimori is being tried in Peru. He
has recently been convicted of human rights and corruption crimes.

III. CASE LAW AND STATISTICS
A. Statistics
There have been 4,885 investigations opened since the implementation of the new Criminal Procedure
Code, (from December 2000 to November 2007) regarding domestic corruption cases, and 3,755 of them
have been completed.
Not all the initiated investigations are concluded by judicial ruling, because there are many other kinds ofcompletions. Nevertheless, last year’s statistics show that almost 30% of the initiated investigations ended
with conviction, although none of them were a high level corruption case.

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1. Types of Crimes And Misdemeanors Investigated 2000 – 2007: TOTAL 4885

2. Crime and Misdemeanor Investigations Initiated from 2000 to 2007: TOTAL 4.885

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3. Current State of the Investigations

B. Case Law
1. Domestic Cases
There is no case law regarding high level corruption cases within the new Criminal Procedure Code;nevertheless, there are many investigations in progress, but which have not yet been concluded.15
Current investigations affecting high level corruption are being held by prosecutors, regarding:(i) Empresa de Ferrocarriles del Estado (The State Railway Company), related with bribery,embezzlement and fraud; and(ii) Programas de Generacion de Empleo (Labour Generation Program). This is a large-scale, complex
investigation related to misappropriation of public funds which were apparently used to finance thepolitical campaign of the current president of the republic and some congressmen, but none of them
have yet been concluded. There will likely be a ruling in 2008. It has been formalized, and the oral
trial is expected to start by the end of March 2008.

2. Foreign Cases
Regarding foreign bribery, no cases have been initiated since 2000.

IV. CONCLUSIONSAs a conclusion summary, it can be said that the criminal procedure reform in 2000 changed radically thecourse of investigations. Currently investigations run faster, and other agents, such as the Public
Prosecutor’s Office, have appeared.
The Public Prosecutor’s Office is an independent organism, so deputy prosecutors can freely investigate
without problems.
There is a high corruption perception index among the people; nevertheless, Chile is one of the lesscorrupt countries in the world, and the first in Latin America.

15 In the old procedural system, there are a few important cases to mention:• Former President Pinochet was suspected of committing embezzlement, public fraud and money laundering, but he died
before being accused, so the case was closed. In this investigation, the judge had to travel to the United States to locate
assets that should have been recovered;• A civil servant who worked in the Copper State Company was convicted almost ten years after the beginning of aninvestigation into committing public fraud;• Several investigations are currently held by court judges regarding the “Caso Mop”, that affected the Ministry of Public
Works, whose head was convicted of fraud. He appealed, and the case is still not concluded.

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Sanctions for corruption crimes and offences are not very high, so some of them do not fulfill what’s
needed for extradition; legislative efforts should be made to raise the sanctions.
There are various tools and techniques focused on the specialized investigation of corruption crimes andoffences. Mutual Legal Assistance can be requested directly from the prosecutors, even if there’s no treaty
between the countries, due to reciprocity.
There is no case law regarding high level corruption cases yet, since the new criminal reform started.
Nevertheless, almost 3,755 domestic cases have been completed since then.

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