The update of this law constitutes an important change with respect to the risks faced by companies in the development of their commercial activity.
As is already public knowledge, Law No. 21,595 was published on August 17, 2023. This new regulation included the establishment of new environmental crimes in the Penal Code under the denomination of “attacks against the environment”.
This update responds to the recognition of the interconnection that must exist between economic activity and environmental sustainability and protection, a concern that has become essential at a national level.
In this way, this law constitutes an important change regarding the risks faced by companies in the development of their commercial activity, especially considering that next September 1st the regime applicable to legal entities will come into force.
As a result of the above, it is necessary to implement prevention models in environmental matters that allow to foresee, detect and anticipate the possibility of occurrence of risk situations, as will be explained below.
In the first place, the law categorizes environmental crimes as second category economic crimes, which means that one of the following connecting factors must be present for the attribution of criminal liability:
- That the act is perpetrated in the exercise of an office, function or position in a company.
- That it is committed for the economic or other benefit of a company.
Secondly, it is important to point out that they may be committed by both natural and legal persons.
In addition to the above, the new crimes incorporated by this law to the Criminal Code can be classified as follows:
- Crimes that affect the environment in a typically relevant way, but which require a condition of reinforced administrative illegality:
- Circumvention of the Environmental Impact and Pollution Assessment system (section 305).
- Repeated contravention of environmental regulations (art. 306).
- Illegal extraction of water in areas subject to limitations (art. 307).
- Crimes of serious affectation: In these cases the relevant typical conduct is related to a serious affectation to the environment, being art. 310 bis the one that defines what will be understood by serious affectation of one or more environmental components, considering the following circumstances:
- Spatial extent.
- Prolonged effects over time.
- Damage that is irreparable or difficult to repair.
- Reach a significant set of species.
- Impact species categorized as extinct, extinct in the wild, critically endangered, endangered or vulnerable.
- Placing the health of one or more persons at serious risk of serious harm.
- Significantly affect the ecosystem services or functions of the environmental element or component.
These conducts are regulated in the following articles:
- 308, which punishes the polluting action either by pouring, depositing or releasing polluting substances, or extracting water or components from the soil or subsoil, causing a serious affectation. The penalty will depend on whether the affectation is perpetrated concurring some of the conducts of articles 305, 306 and 307. In addition, it is considered the commission by recklessness, mere imprudence or negligence with violation of the regulations.
- 310 that regulates the serious affectation of the environmental components of specially protected sectors such as virgin region reserve; national park; natural monument; national reserve; wetland of international importance or glaciers. This criminal type also includes the commission of culpable conduct.
It is relevant to take into consideration that if, in the commission of some of these crimes, irreversible damage is caused to an ecosystem, the maximum of the penalties indicated in art. 308, no. 1 and in the first and second paragraphs of art. 310 will be imposed.
The above implies that with this new regulation, both the natural persons who participated in the commission of the act and the related legal person could be punished.
In this sense, the natural persons could be punished with prison sentences and fines. While the legal person could be sentenced according to the sanctions established in Law No. 20,393 on criminal liability of legal persons, which include the extinction of the company, supervision and fines.
In this sense, it is highly relevant that organizations have a crime prevention model that meets specific characteristics, depending on the business line, size and activities of the company, because the effective implementation of a model may exempt criminal liability.
For more information on these issues, please contact our Criminal Litigation team:
Gabriel Zaliasnik | Partner | gzaliasnik@az.cl
Loreto Hoyos | Criminal group director | lhoyos@az.cl
Daniela Castillo | Associate | dcastillo@az.cl
Catalina Valdés | Associate | cvaldes@az.cl
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