LEY NÚM. 21.523

DIVERSAL MODIFICE FOR IMPROVING PROCESSIONAL GUARANTEES, PROTECTING THE RIGHTS OF THE VICTIMS OF SEXUAL DELITOS, AND EVICTIMIZATION

Bearing in mind that the H. National Congress has given its approval to the following bill initiated in motion by former deputy Gonzalo Fuenzalida Figueroa; of the deputies Maite Orsini Pascal and Gael Yeomans Araya; of former members Paulina Núñez Urrutia and Marcela Sabat Fernández, and of former deputy Marcelo Díaz,

Bill:

"Article 1.- Enter the following modifications in the Criminal Code:

1. Add in article 94 bis the following second subparagraph:

"In the event that the offence provided for in article 366, paragraph 1, is committed against the age of majority, the statute of limitations for criminal proceedings shall be ten years."

2. Add the next article 368 bis A:

"Article 368 bis A.- The mitigating circumstance referred to in article 11 (7) may not be applied in the case of offences provided for in articles 141, final subparagraph; 142, final subparagraph; 150 A, 150 D, 361, 362, 363, 365 bis; 366, first and second subparagraphs, 366 bis, 366 quater, 367 and 367 ter, 333 bis, 411 quater when committed for sexual exploitation, and 4 ".

3. Incorporate the following article 369 bis A:

"Article 369 bis A.- In the case of offences under articles 141, final paragraph; 142, final subparagraph; 150 A, 150 D, 361, 362, 363, 365 bis; 366, first and second subparagraphs, 366 bis, 366 quater, 367 and 367 ter, 372 bis, 411 quater when committed for the purpose of sexual exploitation, and 433, number 1, in relation to the violation ".

4. Hold on. article 372 ter by the following:

"Article 372 ter.- In the offences provided for in articles 141, final subparagraph; 142, final subparagraph; 150 A; 150 D; 361; 362; 363; 365 bis; 366 bis; 366 quater; 367; 367 ter; 372 bis; 411 quater; when committed for the purpose of sexual exploitation, and 433, number 1, in connection with the violation, the judge may, at any stage of the investigation, ".

5. Add the next article 390 sexies:

"Article 390 sexies.- Any person who, on the occasion of previous acts constituting gender-based violence committed by the latter against the victim, causes the suicide of a woman, shall be punished with the penalty of a minor presiding to the maximum degree of imprisonment to the minimum degree as the perpetrator of femicidal suicide.

Gender-based action or omission, which causes death, damage or physical, sexual or psychological suffering to women, will be understood by gender-based violence, wherever this occurs, especially those circumstances set forth in Article 390 ter."

6. Incorporate the following article 393 bis:

"Article 393 bis.- Whoever induces another person to commit suicide will be punished with the penalty of lesser imprisonment at a minimum of half. If death is caused by such circumstances, the penalty shall be less presiding in its mid to maximum grades.

If the induction to suicide and the subsequent death of the victim occurs on the occasion of the occurrence of any of the circumstances set out in article 390 ter, it shall be punished with the penalty of minor presiding to the maximum degree of imprisonment to the minimum degree. ".

7. Replace in paragraph 2 article 411 the phrase "in its middle grade" for "in its middle grades to maximum".

Article 2.- Enter the following modifications Code of Criminal Procedure:

1. Intercálase en el article 109 the following second and third subparagraphs, moving from the second subparagraph to the fourth subparagraph:

"In the case of offences under the Criminal Code, articles 141, final subparagraph; 142, final subparagraph; 150 A; 150 D; 361; 362; 363; 365 bis; 366, first and second subparagraphs; 366 bis; 366 quater; 367; 367 ter; 372 bis; 411 quater, when committed for the purpose of sexual exploitation; and 433, number 1, in relation to any violation,

(a) To have access to assistance and judicial representation.

(b) Do not be prosecuted, stigmatized, discriminated against or questioned by your story, behavior or lifestyle.

(c) To obtain a timely, effective and justified response.

(d) Properly conducted research from a cross-cutting approach, incorporating a gender and human rights perspective.

(e) To receive protection through the measures provided for in the legislation, when their life, physical integrity, sexual indemnity or personal liberty is threatened or violated.

(f) The protection of your personal data and those of your daughters and children, in respect of third parties, and of your privacy, honour and security, for which the court which is aware of the relevant procedure may order such measures as may be relevant.

(g) To participate in the procedure by receiving clear, timely and complete information of the case. In particular, they may obtain information from the case personally, without requiring such information through a lawyer.

(h) That measures be taken to prevent secondary victimization, i.e., avoid any negative consequences that they may suffer on the occasion of their interaction in criminal proceedings. To that end, the complaint must be received in conditions that guarantee respect for its safety, privacy and dignity. The refusal or reluctance to receive the complaint shall be considered a serious violation at the principle of administrative probity.

You will also have the right to have your statement received in the nearest time since the complaint, by trained personnel from Carabineros de Chile, the Chilean Police of Investigations or the Public Prosecutor ' s Office, and to have the necessary support to prevent it from happening again during the investigation stage, unless this is indispensable for the clarification of the facts or the victim himself requires it. The judicial declaration shall be received by trained judges, and respect for the safety, privacy and dignity of the victim shall be guaranteed in the cases concerned. ".

2. Enter the following article 109 bis:

"Article 109 bis.- Special protection measures for victims of sexual violence. In the offences covered by the Criminal Code, in articles 141, final subparagraph; 142, final subparagraph; 150 A; 150 D; 361; 362; 363; 365 bis; 366, first and second subparagraphs; 366 bis; 367; 367 ter; 372 bis; 411 quater, when committed for the purpose of sexual exploitation, and 433, number 1, in connection with the violation,

(a) To delete from the records of the hearings any name, address or other information that may serve to identify the victims, their relatives or witnesses, directly or indirectly.

(b) Prohibit those who engage in information or make statements to the social media concerning the identity of the or victims, unless they consent freely and informedly to disclose their identity.

(c) Preventing the access of individuals or the general public to the courtroom, and ordering their departure from it, if any of the victims so request.

(d) Prohibit social media access to the courtroom if any of the victims so request.

(e) Decrete any of the measures set out in article 308 to promote its judicial declaration.

The Public Prosecutor ' s Office and the Courts of Justice shall take all appropriate measures to prevent the identification of victims by third parties outside the criminal proceedings, unless they consent freely and informedly to disclose their identity. ".

3. Add the next article 109 ter:

"Article 109 ter. Prevention of secondary victimization. Persons and institutions involved in criminal proceedings, at their stages of complaint, investigation and prosecution have the duty to prevent secondary victimization, i.e. to avoid any negative consequences that victims may suffer on the occasion of their interaction in criminal proceedings.

Every year, the Carabineros de Chile, the Chilean Police of Investigations, the Legal Medical Service, the Ministry of Health, the Public Prosecutor ' s Office, the Public Criminal Defender ' s Office and the Judiciary will carry out training and development plans that address the prevention of secondary victimization and gender perspective in criminal proceedings and encourage special protection for victims of gender-based violence. ".

4. In paragraph 2 article 149:

(a) Replace the number "365 bis" with the following: "363, 365 bis, 366 first and second subparagraphs, 366 bis".

(b) Interclude, following the expression "391,", the following: "411 quater,". "

5. Incorporate, following article 191 bis, the following article 191 ter:

"Article 191 ter. Anticipation of evidence in order to avoid secondary victimization. The prosecutor may request the guarantee judge to receive the advance declaration of those victims of any of the offences covered by the Criminal Code, in articles 141 final subparagraph; 150 A; 150 D; 361; 365 bis; 366 first and second subparagraphs; 372 bis; 411 quater, when committed for the purpose of sexual exploitation; and 433, number 1, when rape is committed, in order to avoid secondary victimization.

In the cases provided for in the preceding paragraph, the judge shall cite all those who have the right to attend the oral trial, who shall have all the powers for their participation in the oral hearing.

Without prejudice to the foregoing, the insistence of the validly filed defendant will not prejudice the validity of the hearing in which the advance evidence is delivered. ".

6. Replace in paragraph 2 article 280 the phrase "the situation noted in article 191 bis" by the following: "the situations referred to in articles 191 bis and 191 ter".

7. In the article 308:

(a) Enter the first paragraph, following the term "and qualified," the following phrase: "or to avoid any negative consequences that witnesses may suffer on the occasion of their interaction in an oral trial."

(b) Replace in the third paragraph the phrase "that in which the request is based on the existence of" by the following: ", especially when they exist".

8. In the article 330:

(a) Add the following second subparagraph, new, moving the current second subparagraph to third, and so on:

"In relation to the victim, no questions or counter-interrogations may be made that humiliate, cause suffering, intimidate or injure their dignity."

(b) Interclude in the third paragraph, which becomes a fourth paragraph, after the word "coact", the expression "or harass".

9. Get in the article 331 the following letter (f):

"(f) Where there is a well-founded record of the victim ' s retraction, which will be valued by the court in accordance with article 297, taking into account in particular the accompanied psychological reports and the background on the risk assessment in which it is located. ".

Article 3.- Get in. article 20 of the Act No. 19,640, constitutional organ of the Public Prosecutor ' s Office, the following second and third subparagraphs, passing the current second and third paragraphs to the fourth and fifth subparagraphs:

"Any person may request information from the Victims and Witnesses Division of the Public Prosecutor ' s Office on the accompanying and advising procedures it provides to those who report to be victims of the offences provided for in articles 141, final paragraph; 142, final paragraph; 150 A, 150 D, 361, 362, 363, 365 bis; 366, first and second subparagraphs; 366 bis, 366 quater, 367 and 367 The Public Prosecutor ' s Office shall provide, upon request, full and sufficient information on the benefits available to victims and witnesses, and public services in the areas of information, guidance, representation, comprehensive care and reparation to victims and their families.

When the Public Prosecutor ' s Office learns of a fact that is of the nature of the offence of sexual violence mentioned in the preceding paragraph, it shall be contacted in any way with the victim within the next twenty-four hours, in order to give him advice and guidance for the exercise of his rights, and may if so requested, involve his family. If the Public Prosecutor ' s Office is unable to contact the victim in the above-mentioned terms, it shall notify the guarantee judge. ".

Article 4.- Enter the following modifications article 33 of the Law No. 19.733on freedoms of opinion and information and exercise of journalism:

1. Replace the second subparagraph with the following:

"This prohibition shall also apply to the victims of the offences provided for in articles 141, final paragraph; 142, final paragraph; 150 A, 150 D, of any of the offences covered by the Seventh Title of the Second Book, "Crimes and offences against the order of the families, against public morality and against sexual integrity" and of the offences covered by articles 411 quater, when committed for the purpose of sexual exploitation, ".

2. Please refer to the following third, new, paragraph 3 to fourth:

"To communicate the investigation or trial, the victim must be referred to either with its initials, a number or any other way that does not enable its individualization. In addition, the use of any editorial remedy that gives account of stereotypes or prejudices regarding the victim ' s status, any liability in the facts, conduct prior to or after the offence or any other element that normalizes, justifies or relativices the violence suffered. ".

Article 5.- Incorporate into the Law No. 19.346which creates the Judicial Academy, the following article 22:

"Article 22. The Judicial Academy, within its training and development programmes, will consider gender-related training in the criminal process, which prevents revictimization, stereotypes and promotes special protection for victims of gender-based violence. ".

Article 6.- Please refer to the second subparagraph of article 1 of Act No. 18,216, which establishes penalties that indicate as alternatives to custodial or restrictive sentences, following the phrase "362," as follows: "363, 365 bis, 366 first and second subparagraphs, 366 bis", and replace the expression "and 391" with ", 391 and 411 quater".

Article 7.- Please refer to article 3, paragraph 3, of Decree-Law No. 321, of 1925, which provides for the conditional release of persons sentenced to custodial sentences, following the phrase "of article 365 bis and articles", as follows: "363, 365 bis, 366 first and second subparagraphs,".

Having complied with the provisions of article 93, paragraph 1, of the Constitution of the Republic, and since I have had the right to adopt and punish it, therefore, to promute and take effect as the Law of the Republic.

Santiago, December 19, 2022.- GABRIEL BORIC FONT, President of the Republic.- Marcela Rios Tobar, Minister of Justice and Human Rights.- Antonia Orellana Guarello, Minister of Women and Gender Equity.

What I am transcribing to you for your knowledge. He presents his compliments to you, Jaime Gajardo Falcón, Assistant Secretary of Justice.

Constitutional Court

Bill amending various legal bodies to improve procedural guarantees, protect the rights of victims of sexual offences, and avoid their revictimization, under bulletin No. 13.688-25

The Secretary of the Constitutional Court, who subscribes, certifies that the Chamber of Deputies and Deputies sent the bill set out in the heading, approved by the National Congress, in order that this Court exercise the control of constitutionality with respect to the number 5 of article 2 and article 3 of the bill; and by judgement of 17 November 2022, in the Rol 13680-22-CPR.

It states:

That this Judiciary does not issue a ruling, in a preventive review of constitutionality, regarding the provisions contained in article 2.5 and article 3 of the bill amending various legal bodies to improve due process, to protect the rights of victims of sexual crimes, and to avoid their revictimization, corresponding to Bulletin No. 13.688-25, for not to deal with matters specific to the Constitutional Organic Law.

Santiago, November 22, 2022.- María Angélica Barriga Meza, Secretary.