This success story has been provided by the Chilean Anti-Corruption Authority and is posted on this site in its original form.
1. Overview of the criminal prosecution of corruption in Chile
In Chile, the criminal procedure system has been overhauled in a series of reforms starting in 1999. These reforms created an autonomous office of public prosecutions, established a legal aid service, and a new code of penal procedures, replacing an inquisitive system with an adversarial system. The Public Prosecutor’s Office (PPO) is the independent and autonomous agency in charge of investigating and prosecuting criminal activity, including corruption and money-laundering. Its head is the National Prosecutor, selected by the Chilean President, ratified by the Senate, from a list of five possible candidates proposed by the Supreme Court. Six specialized units in the PPO deal with policy issues, capacity building and providing technical and support to the regional prosecutors in their cases. One of them is the Anticorruption Specialized Unit. There are 18 regional prosecutors’ offices, each headed by a regional Chief, with 647 prosecutors, of which 63 are specialized in anticorruption and 64 in money laundering and organized crime. The National Prosecutor can issue general directives but cannot intervene in the investigation and trial of a particular case.
The Anti-Corruption Specialized Unit has professional and technical staff working in two areas: legal and accounting and financial analysis. Staff provides support to prosecutors, particularly in the most complex cases. The principal crimes regarding corruption are contained in the Criminal Code, such as embezzlement, misappropriation of public funds, fraud affecting public property, bribery of national or international public servants, trading influence, abuse of functions, and illicit enrichment. The penalties for corruption offenses include a combination of incarceration, special or absolute disqualification for public office or functions and a monetary fine. Furthermore, the effectiveness of the sanctions as deterrence is limited by mandatory reductions in sentencing where the accused collaborates in the investigation or if the case begins after more than half of the running of the statute of limitations. Additionally, if the accused has no prior convictions, he will usually serve his sentence under probation and will not be incarcerated.
Chile has shown a stable pattern of a relatively low number of crimes of this nature under investigation, accounting for 0.1 % of the total number of crimes reported. This figure has remained steady over the last nine years. Criminal procedure requires the PPO to formalize investigations and then provides a maximum period of two years that can be shortened by a Guarantee Judge depending on the complexity of the case. Before formalizing the investigation, a preliminary one can be performed by prosecutors, but does not interrupt the statue of limitation period. Once the investigation is formalized, tolls the statute of limitations. Therefore, it is important for the prosecutor to do as much investigation as possible prior to formalizing the investigation.
Basic investigative techniques available to anti-corruption prosecutors include the creation of a special investigative task force (prosecutors and investigative police officers) for a specific case. Investigations are greatly facilitated by the ready access to a wide range of property, tax and other registries on line, products of Chile investment in information technology over recent years. The law also provides for witness protection, search and seizure, taking witness testimony in Chile or through Chilean consulates abroad, and restrictions for closing an investigation. Prosecutors can also seek authorization of the Court of Appeals for access to restricted administrative information when it is denied by the requested authority, and must obtain authorization from the Guarantee Judge in order to lift bank secrecy and wiretapping in certain circumstances. Undercover agents and controlled deliveries are not authorized in corruption cases, however, these procedures are allowed and authorizations are more easily obtained in drug related crime and money-laundering cases.
2. An interesting case of corruption, the EGP case (Employment Generation Programme)
The EGP were created to diminish unemployment in Chile, trying to benefit unemployed people, head of families that had very basic educational instruction. Therefore, a certain budget was intended to hire unemployed people through the whole country, who should work as gardeners and street cleaning staff. In this particular sector, the regional government administrated this budget through private companies who hired directly the people, supervised their work and paid their salary. In this specific case, the contracts raised up to US$200.000. In the meantime, the presidential and parliamentary campaigns for elections to be held in December 2005 were on. Therefore, some public officials in charge of running the programme, in agreement with some candidates for the parliament used the money to pay salaries to people that performed as campaign agents, and did not develop the cleaning and gardening tasks, using the public funds in benefit of the candidates rather than the community.
The investigation was held for almost two years; hundreds of statements were taken, a lot of financial expert reports were made and analyzed to prove the responsibility of the public officials, the private companies and the candidates and their staff. Before the indictments were made, as the congressmen/women are constitutionally protected against indictments and prison, the Public Prosecutor’s Office had to address the Court of Appeal to take away this constitutional protection, in order to proceed against them. In this case, we had to prove a probable cause against one of them, and the Court of Appeal agreed to lift the constitutional protection. The defence appealed to the Supreme Court, but the decision was ratified. Therefore, it was clear that the evidence that had been gathered up to that stage was significant to prove the criminal responsibility. Nevertheless, in trial, jointly with the congresswoman’s daughter and son in law, 10 other persons were convicted, but not her. The court said that there was no evidence that she knew that the campaign agents were paid by public funds, and they declared her not guilty, asking the Public Prosecutor’s office to reach a high standard of proof, making it almost impossible to reach. In this case, many other problems appeared, as the defendants made up a lot of incidents, and different procedures had to be adopted for each one. Therefore the PPO had to take a lot of time in trial, having to prove the same facts every time, with the risk that different decisions could be made by different judges. Nevertheless, after all, convictions were made mainly for fraud.
Courts require a high standard of evidence to convict someone for a corruption crime; even more if it addresses a high ranked authority, such as a parliamentary.
Special investigating techniques, such as wiretaps are absolutely necessary to investigate corruption cases, since the courts in Chile are willing to convict this kind of crimes, over the basis of direct evidence, more than presumptions. Therefore, these kinds of techniques should always be available to allow the prosecutors to build a strong case that can beat the high standards required by the courts to convict. Legislative transformations should be made to provide these kind os techniques always in corruption cases. Notwithstanding the close internal collaboration, the PPO has difficulties in mounting large, complex investigations, particularly in high profile cases, particularly in terms of ensuring effective integration of multi-disciplinary teams, effective liaison and continuity in investigative staff from the police, and mechanisms for secure information sharing between units. Dealing with multiple defendants, and witnesses is really hard to manage, if there´s not an exclusive team working in the case. This is why the Public Prosecutor’s Office has proposed legislation establishing a specialized high profile crime unit. This would provide a framework for mounting high profile investigations and prosecutions which require collaboration from many institutions over an extended period of time, similar to the “task force” approach used in other countries. The proposed legislation establishing a specialized unit for high profile cases would greatly facilitate the pursuit of complex corruption, drugs, money laundering and organized crime cases, particularly if the specialized unit is able to ensure cooperation across the Public Prosecutor’s Office, the police and the institutions involved in investigations and continuity of staff involved in these cases.
For more information please contact the Office of the Public Prosecutor of Chile, www.fiscaliadechile.cl
Source: The World Bank Department of Institutional Integrity