This opinion column was written by our partner and professor of criminal law at the University of Chile, Gabriel Zaliasnik, and Luis Varela is a lawyer and professor of criminal law at the University of Antofagasta.
The new Law on Economic Crimes omits any identification of the object of protection or any conceptual criterion that would give meaning to the incardination of the numerous criminal figures catalogued in it as economic crime. On the contrary, the legislator limited himself to offering four categories in which he then frames the figures to which the new system of determination and execution of penalties will be applied, “the most severe in comparison to the entire Chilean criminal regime”, according to its drafters.
The omission is clearly not accidental, since having to define or agree on a concept of economic crime would have revealed the ideological background underlying the new law.
Even though in the legislative discussion Sutherland and his classic work on white-collar crime (a criminological perspective on the matter) were cited, important warnings made by continental comparative dogmatics -the majority position- were overlooked, for example that of Tiedemann, on the fact that the characterization of economic crime must necessarily be based on the peculiarity of the act and the objective of the behavior, and not on the mere belonging of the perpetrator to a specific activity. That is to say, economic crime must be identified with behaviors that, due to their characteristics, along with harming supra-individual legal interests, threaten economic life or the concrete order to which it refers.
This is undoubtedly true for the first category of economic crimes, which will always be considered as such and for which the law operates by imposing only the aforementioned differentiated framework for determining penalties. This category is a selection of crimes that is largely in line with the disciplinary consensus on the issue, and in general does not merit further technical criticism, except for the disproportionality present throughout the law.
But the problem begins with the second and third categories, since both are constructed in the form of criminal types dependent on heterogeneous criminal figures in which the perpetrator is fixed by his role in the exercise of an office, function or position in a company, and also extends the notion of economic crime to matters that do not seem entirely clear that they are.
It is obvious that, by evading the proper conceptualization of economic crimes and their object of protection, a sanctioning mechanism that takes place in the course of breaches of duties in business activity was plainly and simply favored. Behind this, no punitive pragmatism is identifiable, and the subterfuge of “sentencing” is used to cover up with a technical disciplinary cloak what is nothing more than mere ideology and punitive voluntarism against a lawful activity such as the business activity.
The above shows the legislative nonsense of trying to legislate on economic crimes without a previously agreed dogmatic anchorage, the voluntarism of grafting legislative experiences that do not fit our reality, and the folly of regulating with a punitive framework typical of criminal organizations what is a lawful and necessary activity for the development of the country.