Chile - Global bribery offenses guide

What is the legal framework governing bribery in Chile?

In Chile, the legal framework that regulates and sanctions bribery acts is the Chilean Criminal Code and Law 20,393 that establishes the criminal responsibility of legal entities. The latter holds companies or corporations liable for acts of bribery committed by any individual within the legal entity, when they have failed to implement compliance programs aimed at preventing such offenses.

What constitutes a bribe?

Bribery constitutes requesting, accepting, offering or consenting to give a national or foreign public official an economic or non-economic benefit, to gain a personal advantage for the person offering the bribe or for a third party.

What are the principal offenses under this legal framework?

• Offering or consenting to give an economic or non-economic benefit to a national public official, for the benefit of the person giving the bribe or for a third part.
• Request by a national public official of an economic or non-economic benefit to give an improper advantage.
• Offering, promising, giving or consenting to give an economic or non-economic benefit to a foreign public official.

What is the jurisdictional reach of the legal framework?

The Chilean Criminal Code and Law 20,393 only apply in Chile. Our criminal legislation is governed by the principle of territoriality of criminal law.

Who may be liable for bribery? (public officials, private individuals, legal entities etc.)

Private individuals, public officials and legal entities can be prosecuted for bribery offenses under Chilean Criminal Code and Law 20,393.

A legal entity may be held criminally liable if bribery is committed in the course of its activities by, or with the involvement of, an individual who holds a position, function, or role within the entity, or who manages its affairs before third parties, with or without representation – provided that the offense was facilitated by the lack of an effective and adequate crime prevention program.

Can a parent company be liable for its subsidiary’s involvement in bribery?

It is theoretically possible, though highly exceptional, for a parent company to be held criminally liable for crimes committed by its subsidiary. This may occur when the subsidiary lacks operational autonomy, and the offense is facilitated by the parent company’s failure to implement an effective crime prevention program, in accordance with Law 20,393.

In any case, this is a complex and rarely observed scenario. Criminal liability would require proof that the subsidiary was effectively under the parent company’s control and that the offense was made possible or easier by the parent company’s own organizational failures. Ultimately, such liability must be established in court.

Are facilitation payments (i.e. small payments to speed up routine governmental action) considered bribes?

Yes, provided they meet the criteria, facilitation payments are considered bribery, no matter how small the amount.

However, under Chilean law, official or protocol-related donations or gifts do not constitute bribery, nor do those of low economic value that are considered customary expressions of courtesy or good manners, in accordance with the Administrative Statute applicable to public officials.

Does the legal framework restrict political and charitable contributions?

Yes. In Chile there are special laws that regulate such matters (Law on the Financing of Political Parties and Donations Law), therefore, outside of that framework, they can be considered bribery.

Official or protocol donations are not constitutive of bribery, also those of low economic value that the custom considers as a manifestation of courtesy or good education.

A political or charitable contribution could be considered a bribe if it is given or received with the intention of inducing a person to act improperly, or as a reward for having done so.

Does the legal framework place restrictions on corporate hospitality?

Not in general. Corporate hospitality should be oriented towards official or protocolary donations (being a courtesy gift given to an authority as a gesture of gratitude for an invitation) or gifts of little economic value, usually understood as a manifestation of courtesy and good education. Anything outside this framework is prohibited.

However, our criminal law always prohibits protocolary donations to foreign public officials.

Are there any defenses for bribery offenses?

There are no specific statutory defenses to charges of bribery.

However, it may be a defense for a legal entity to demonstrate that it had adequate procedures in place to prevent bribery and that it did not facilitate the commission of the offense, having implemented an effective crime prevention program.

Although Law 20,393 does not explicitly define what constitutes adequate procedures to prevent bribery, it does establish the basic elements of a crimen prevention program. These include: (i) risk assessments, (ii) the adoption of policies and procedures setting out obligations and prohibitions for individuals within the company, (iii) whistleblowing channels and investigation protocols, (iv) the designation of responsible individuals (e.g., a Chief Compliance Officer), and (v) continuous monitoring and improvement mechanisms.

What are the key regulatory or enforcement bodies with regard to bribery?

The Public Prosecutor's Office is the primary agent in Chile for investigating and prosecuting cases of bribery.

What are the legal consequences of being found guilty of bribery offenses?

Individuals face up to ten years’ imprisonment and/or a limited fine on conviction and temporary absolute disqualifications for the exercise of public office during the duration of the sentence.

Legal entities may be sanctioned with dissolution or cancellation of their legal status. However, more commonly applied sanctions include: (i) fines of up to USD 140 million, (ii) partial or total loss of rights, (iii) temporary or permanent bans on contracting with the government, (iv) the court appointment of a supervisor or monitor, (v) confiscation of illicit profits, and (vi) the publication of the conviction on a public media outlet as a form of social reproach.

Are deferred prosecution agreements (DPAs) or other similar settlement mechanisms available?

Bribery offenses may be resolved through settlement.

Settlements may be offered by the Public Prosecutor's Office to companies, partnerships, unincorporated associations, and individuals.

If a DPA is offered and accepted, and all its conditions are fulfilled, the Public Prosecutor's Office may agree not to pursue criminal prosecution against the entity or individual involved.

Both legal entities and individuals may engage in plea negotiations with the Public Prosecutor's Office, agreeing to plead guilty in exchange for potentially reduced penalties.