Sources and Effects of Chilean Criminal Law: A Comprehensive Guide

Posted on Sep 20, 2024 in Law & Jurisprudence

Sources of Criminal Law

Principle of Legality

This principle, also known as “reserve”, is enshrined in our country by the Constitution. Article 19 No. 3 CPR inc. 7 and 8 states that both crimes and penalties, as well as punishments, must be clearly defined in the law, unless a more favorable law exists for the accused or convicted.

The principle of legality is also sourced from international treaties signed and currently in force in Chile, including:

The Universal Declaration of Human Rights
The American Convention on Human Rights (San José de Costa Rica)
The Covenant of Civil and Political Rights

The principle of legality guarantees citizens legal certainty by clearly defining which acts constitute crimes.

Criminal Laws in White

We must make a threefold distinction:

Proper Criminal Laws in White: These laws refer to a lower standard, generally a regulation or administrative decision, to determine the matter of prohibition. This occurs, for example, in traffic law and Narcotics Law 20,000, which punishes behaviors related to illicit drugs.
Improper Criminal Laws in White: The determination is found within the same code or law containing the provision in white, or in another law. An example in Chile is the fraudulent issuance of checks, a crime described in DFL 707.
Backwards Criminal Laws in White: The determination of the penalty is left to a lower standard, while the behavior itself is included in the law. This occurs in our Criminal Code, Article 21 Final.

Analogy in Criminal Law

The analogy is prohibited as a source of criminal law. It is not permissible to punish or extend a behavior based on its similarity to another.

Secondary Sources of Criminal Law

These include international treaties, case law, custom, and the general spirit of the legislation.

Real or Legal Interpretation

This refers to cases where the law itself defines the concept. For example, Article 12 of the Criminal Code establishes aggravating circumstances that modify criminal responsibility.

Interpretation of Criminal Law

Interpretation is necessary when the meaning of the law is unclear. In such cases, the interpreter must clarify the content of the legal concept.

Case Law

Judges cannot create crimes or punishments; they can only enforce the law. However, many cases are decided by interpreting the meaning and scope of certain expressions. For example, Law 20,000 in Article 4 defines drug trafficking, but in inc. 2, it establishes a lower penalty for certain cases.

Legal Criteria for Interpretation (Hermeneutics)

These can be categorized into two orders: special rules of interpretation and general rules of interpretation.

Special Criteria of Interpretation

Judicial Interpretation: This is the true interpretation with legal effect, determining the law applicable to a specific case. In Chile, judgments have a relative effect.
Doctrinal Interpretation: This has less value than judicial interpretation and depends on the author’s prestige.

General Rules of Interpretation

Literal or Grammatical Interpretation: This involves a restrictive interpretation in relation to Articles 19 and 20 of the Civil Code.
Teleological Interpretation: This considers the intention or spirit of the law, as manifested in its text or legislative history. It requires examining the law’s formation.
Proportionality: This requires a balance between the imposed sentence and the grounds for justification, opting for the least burdensome option.
Pro Reo Principle: Included in Article 23 of the Civil Code, this principle states that any ambiguity in a criminal provision must be interpreted in favor of the accused. This is reinforced in the new criminal procedure code, Article 340.
Natural Equity: While not as prominent in civil law, this principle emphasizes substantive justice based on the specific circumstances of each case.

Aphorisms also serve as sources of interpretation, such as non bis in idem (no one can be punished twice for the same act).

Effects of Chilean Criminal Law in Time

The principle of non-retroactivity governs the application of criminal law. This means that criminal laws only apply to future situations and cannot be applied retroactively to events that occurred before their enactment. This principle is enshrined in both the Constitution (Article 19 No. 3) and the Criminal Code (Article 18).

Ultra-Active Principle of Criminal Law

This principle addresses a problem related to retroactivity. When a law is repealed, its effects may continue in certain situations. This occurs when elements of the repealed law are incorporated into a new law, resulting from poor legislative technique.

Effects of Criminal Law in Territory

Article 5 of the Chilean Criminal Code states that Chilean criminal law is mandatory for all individuals within its territory, which includes air, sea, and land according to international law. Crimes committed in territorial waters and adjacent areas are subject to Chilean legislation.

Determining the Location of a Crime

The Criminal Code does not explicitly define when an offense is committed within Chilean borders. This ambiguity raises questions about the applicability of Chilean law to crimes initiated in one jurisdiction but completed in another.

Crimes of Distance

These crimes are considered committed where they are completed, rather than where the conduct began. This distinction is crucial for determining jurisdiction in cases involving acts that cross borders.

Theories on Applicable Law

Three main theories address the question of which law applies to crimes committed across borders:

Activity Theory: This theory applies the criminal law of the state where the conduct began.
Result Theory: This theory applies the criminal law of the state where the conduct is completed.
Ubiquity Theory: This theory allows for the application of Chilean criminal law regardless of where the behavior was initiated.

Bustamante Code

This code allows two states to enforce their laws in cases of concurrent jurisdiction, preventing double jeopardy, which occurs when an individual is punished twice for the same offense.

Principles of Extraterritoriality

Three principles govern extraterritoriality:

Personality Principle: This principle determines jurisdiction based on the nationality of the person, regardless of where the crime was committed. Article 6 No. 6 of the Chilean Constitution and Section 1 of Act 5542 illustrate this principle, applying Chilean law to Chilean military personnel serving hostile powers and crimes against national security, respectively.
Real Principle or Protective Principle: This principle allows a state to exercise jurisdiction over offenses that harm its essential interests, regardless of the offender’s nationality or the location of the crime. Article 6 No. 1 of the Chilean Constitution exemplifies this principle by granting jurisdiction over crimes committed by diplomats and misappropriation of public funds.
Universality Principle: This principle grants jurisdiction over crimes considered universally condemned by the international community, such as piracy (Article 6 No. 7 of the Chilean Constitution) and offenses established by international treaties (Article 6 No. 8).

Effects of Criminal Law in Relation to Persons

Article 19 No. 2 of the Chilean Constitution guarantees equality before the law. However, certain privileges and immunities exist for specific individuals.

Privileged Persons

Examples of individuals with legal privileges include foreign diplomats and parliamentarians.

Inviolability

Certain individuals enjoy inviolability under Chilean law:

Parliamentary Inviolability: Article 58 of the Chilean Constitution guarantees the inviolability of parliamentarians, protecting their freedom of vote.
Immunity of Heads of State: This principle grants immunity to foreign heads of state, but it typically does not apply during private visits.
Diplomatic Immunity: Foreign diplomatic officials enjoy immunity from criminal prosecution in the receiving state.
Immunity of International Organization Staff: Staff members of international organizations often have immunity related to their official duties.
Consular Immunity: Consular officials have limited immunity, generally restricted to their official consular functions.

Conduct: Active and Passive Behavior

Conduct is defined as any behavior guided by will. It excludes impulsive acts, actions resulting from irresistible physical force, and acts committed unconsciously or during seizures.

The Chilean Criminal Code recognizes both active and passive behavior, distinguishing between crimes of action and crimes of omission.

Crimes of Action

These crimes involve the perpetrator’s active behavior that leads to a harmful outcome. They are further categorized into:

Formal Crimes: The mere act of committing the crime is sufficient for liability, regardless of the outcome. Libel is an example of a formal crime, where the perpetrator’s verbal expression is enough to cause harm.
Material Crimes: These crimes require both the prohibited act and a specific result. Murder is a material crime because it involves the act of assault and the result of death.

Crimes of Omission

These crimes involve the failure to act when there is a legal duty to do so. They are categorized into:

Proper Crimes of Omission: The individual fails to perform a legally required action, as illustrated in Article 494 No. 14 of the Criminal Code, which addresses the omission of relief.
Improper Crimes of Omission: These crimes involve a failure to act when there is a specific duty to care, often referred to as a guarantor relationship, and a harmful result occurs.

Typical Characteristics of a Crime

The typical characteristics of a crime refer to the legal definition of the prohibited behavior. It’s important to distinguish between the”crim” and the”criminal” as they are distinct concepts.

The offense is the objective legal description of the prohibited behavior, while the criminal is the individual who engages in that behavior. The typical characteristics ensure that the perpetrator’s actions align with the legal definition of the crime.

Classifications of Elements of a Crime

The elements of a crime can be classified as follows:

Structural elements
Regulatory elements
Subjective elements
Negative elements
Objective conditions of criminality

Illegality and Grounds of Justification

A typical behavior is generally considered unlawful. However, if grounds of justification exist, the act may not be considered criminal. Grounds of justification involve situations where an individual’s actions, though typically criminal, are justified due to overriding interests, such as the need to protect life or property.

Article 10 of the Chilean Criminal Code outlines the grounds of justification:

Legitimate necessity
Self-defense
State of fulfillment of duty
Legitimate exercise of a right, authority, office, or position
Legitimate consent

Self-Defense

Self-defense as a justification requires:

Unlawful Aggression: This requirement raises several issues, including the use of security mechanisms (e.g., electric fences) and the possibility of delayed self-defense, where an individual reacts to an attack after a period of time.
Rational Necessity of the Means Employed: The means used in self-defense must be proportionate to the threat faced.

It’s important to note that self-defense is not a valid justification if the individual mistakenly believes they are under attack or if their actions are motivated by revenge or other illegitimate reasons.

Defense of Relatives

Similar to self-defense, defending a relative requires unlawful aggression and a rational necessity of the means employed. However, the relative defending the victim should not have participated in provoking the attack.

Defense of Others

Defending others requires unlawful aggression, rational necessity of the means used, and the absence of prior provocation by the defender. The defender’s motivation should be solely to protect the victim, not to seek revenge or act out of personal animosity.

Privileged Self-Defense

Article 10 No. 6 of the Chilean Criminal Code describes privileged self-defense, which allows for greater latitude in using force to repel an attack. In these cases, the law presumes that the requirements for self-defense are met, although this presumption does not extend to the requirement of unlawful aggression.

Privileged self-defense applies in situations such as:

Rejecting an intruder at night in a dwelling or office, whether or not it is inhabited.
Rejecting an intruder in commercial or industrial premises, whether or not they are inhabited.
Preventing the commission of serious crimes, including abduction, rape, parricide, murder, robbery, and others.

Exclusion of Liability

Article 73 of the Chilean Criminal Code allows for a mandatory sentence reduction when the requirements for a ground of justification are mostly met but one essential element is missing. This provision recognizes that even in the absence of a complete justification, mitigating circumstances can warrant a less severe punishment.

State of Necessity

Article 10 No. 7 of the Chilean Criminal Code addresses the state of necessity as a ground of justification. It requires three elements:

Actual or Imminent Evil: The danger must be real or about to happen, posing a threat to legally protected interests.
Rational Necessity of the Means Employed: The actions taken to avoid the evil must be proportionate and necessary.
Absence of Greater Harm: The harm caused by avoiding the evil must not be greater than the harm that would have resulted from the evil itself.

Guilt: The Subjective Element of Crime

Guilt, the fourth element of a crime, focuses on the perpetrator’s mental state and their understanding of the wrongfulness of their actions. It involves assessing whether the individual can be held morally responsible for their conduct.

Positive and Negative Elements of Guilt

The positive elements of guilt are intent and negligence, which relate to the perpetrator’s psychological state. The negative elements of guilt are factors that negate culpability, such as:

Lack of Imputability: This applies to individuals who lack the capacity to understand the wrongfulness of their actions, such as minors and those with mental illnesses.
Mistake of Law: This occurs when the perpetrator is unaware of the illegality of their actions.
Irresistible Force or Insurmountable Fear: This defense applies when an individual is forced to commit a crime under duress or extreme fear, negating their free will.

Intent

Intent, also known as dolus, is the most common mental element in criminal law. It involves the perpetrator’s knowledge and desire to commit the prohibited act. Chilean law presumes intent in most cases, except for specific offenses that require negligence.

Iter Criminis: Stages of a Crime

Understanding the stages of a crime is crucial for determining the appropriate punishment. The iter criminis can be divided into three phases:

Internal Phase: This phase includes ideation, deliberation, and decision. While ideation alone is not punishable, deliberation and decision demonstrate the perpetrator’s intent to commit the crime.
Intermediate Phase: This phase involves preparatory acts, such as proposition (offering to commit a crime) and conspiracy (planning a crime with others). These acts are generally not punishable unless explicitly stated in the law.
External Phase: This phase includes the actual execution of the crime and is divided into three stages:
- Attempt: The perpetrator takes steps to commit the crime but fails to complete it. Attempt is punished less severely than the completed crime.
- Frustration: The perpetrator completes all the acts necessary for the crime but the intended result does not occur due to external factors. Frustration is punished less severely than the completed crime.
- Consummation: The crime is completed, and the perpetrator achieves the intended result. This stage carries the full penalty associated with the crime.

Authorship and Participation

Articles 7, 8, 15, 16, and 17 of the Chilean Criminal Code address authorship and participation in crimes. These articles distinguish between the main perpetrator and those who assist or contribute to the crime.

Perpetrator

The perpetrator is the individual who directly commits the crime. This includes those who act through another person whose will is not free, those who are unaware of the objective meaning of their actions, and those who act as a substitute for another’s will.

Co-Authorship

Article 15 No. 1 of the Chilean Criminal Code defines co-authorship as a situation where two or more individuals jointly commit a crime. Each co-author is equally responsible for the crime and subject to the same penalty as if they had acted alone.

Accomplices

Articles 15 No. 3 and 16 of the Chilean Criminal Code address accomplices, who are individuals who assist or facilitate the commission of a crime without directly participating in the act itself. Accomplices are subject to a lesser penalty than the main perpetrator.

In conclusion, understanding the sources, effects, and elements of Chilean criminal law is crucial for ensuring justice and upholding the rule of law. This comprehensive guide provides a foundation for navigating the complexities of this area of law, emphasizing the importance of legal principles, definitions, and procedures in the Chilean context.