LEY NÚM. 21.577

STRENGTHENING THE PERSECUTION OF THE ORGANIZED DELIENTIFICATIONS, THE SPECIAL TECHNICAL ESTABLISHMENT FOR ITS INVESTIGATION AND ROBUSTECE COMISO DE GANANCIAS

Bearing in mind that the H. National Congress has approved the following

Bill:

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

1. Incorporate into the article 12 the following numeral 23:

"23a. Execute the act by forming part of a grouping or organization of two or more persons intended to commit crimes or mere crimes, provided that it does not constitute a criminal or criminal association that deals with Title VI, paragraph 10, of Book II, and this has facilitated the perpetration of the crime or increased the danger to the physical integrity of the victim, or has carried out the act with violence, intimidation or deception. ".

2. Get in the article 20 the following second subparagraph:

"Neither is the acquittal of proceeds from the crime, nor any form of contempt without conviction provided for by law."

3. Enter the following article 24, the following articles 24 bis and 24 ter:

"Article 24 bis.- Any conviction in criminal matters carries with it the confiscation of the proceeds from the offence where there are any. The confiscation of profits deprives a person of property assets whose value corresponds to the amount of proceeds obtained through the offence, or to or for perpetrating it, and is transferred to the Administrative Corporation of the Judiciary.

The gains obtained include the fruits and profits that have originated, regardless of their legal nature. They also include the equivalent of costs avoided through wrongful act.

Determining the value of profits will not discount the costs that have been necessary to perpetrate the offence and obtain them.

The action to obtain the confiscation of profits shall be subject to the statute of limitations of the respective criminal proceedings.

If the same property may be confiscated under this article and pursuant to articles 31, 31 bis and 31 ter, only the provisions of this article shall apply.

Article 24 ter.- The confiscation of profits will also be imposed on those who have not intervened in the perpetration of the fact, in any of the following circumstances:

1a. If he acquired the gain as a testamentary heir or assignee, to any free or invalid title, unless he has acquired it in the same way as a third party that will not be found in the same circumstances or in the following circumstances.

2a. If he obtained the gain through the wrongful act and those involved in the perpetration of the act acted in their interest.

3a. If he acquired the profit knowing or must know its illicit origin at the time of acquisition.

4a. If it is a legal person, it has received the gain as a contribution to its heritage. ".

4. Hold on. article 31 by the following:

"Article 31. The confiscation of anything that has been used as an instrument in the perpetration of a crime shall be imposed and is particularly suitable for criminal use. It will be understood that they are especially suited to be used criminally, in any case, those things whose possession or bearing is generally prohibited by law.

The court must decree the confiscation of things especially suitable for criminal use even if the accused is acquitted or dismissed. This will suffice to establish its use in a criminal act. In this case, the confiscation shall be imposed in accordance with the procedure established in Title III bis of Book IV of the Code of Criminal Procedure.

The confiscation of instruments especially suited to be used criminally shall proceed even with respect to third parties of good faith and have the title to own the thing, unless it is established that the owner had no responsibility in the use of the thing by the factor.

If the confiscation affects a third party of good faith and has no responsibility for the act, it may seek compensation from the factor. ".

5. Add following article 31 the following articles 31 bis and 31 ter:

"Article 31 bis.- The confiscation of a thing that is not particularly suited to be used criminally and which has served as an instrument in the perpetration of the fact will only be imposed in the conviction and provided that the thing has been used in the perpetration of a crime.

The provisions of the preceding subparagraph shall not apply to third parties in good faith. The court shall dispense with its imposition when the deprivation of its property causes a disproportionate injury to the affected person.

Article 31 ter.- The confiscation of anything obtained or produced through the perpetration of the fact shall be imposed.

The confiscation of the effects of the offence shall be decreed by the judge even if the accused is acquitted or dismissed, provided that the matter is established by an unlawful act. In this case, the confiscation shall be imposed in accordance with the procedure established in Title III bis of Book IV of the Code of Criminal Procedure.

The confiscation of the effects of the act shall not proceed with respect to the third in good faith.

In the case of illicit tenure effects, the confiscation shall proceed in all cases. ".

6. Hold on. article 48 by the following:

"Article 48. If the property of the convicted person is not sufficient to cover the pecuniary responsibilities, these shall be fulfilled in the following order:

1. Seizure of proceeds from crime or, where appropriate, the value equivalent to the effects or instruments of crime.

2. Fines.

3. Procedural costs and compensation for the costs incurred by the trial.

4. Compensation for damages and compensation for damages.

5. Personal costs.

If, by application of the provisions of the preceding subparagraph, it is not possible to satisfy the damages arising from the offence for the lack of achievable property, the injured party may exercise civil action on the confiscated property for the purposes of number 1, or the proceeds thereof, provided that there is a direct relationship between the improper injury and the gains obtained. The State may exempt itself from payment if it demonstrates the existence of realizable assets on which compensation can be made effective, or that it could not be satisfied by the negligence of the injured party.

In the event of the commencement of a concursal procedure, these receivables shall be regarded as an obligation to comply with the confiscation as a credit of the first class under article 2472, paragraph 1, of the Civil Code and the remaining as one of those that does not enjoy preference. In this case the provisions of the preceding subparagraph shall not apply. ".

7. In the article 60:

(a) To delete its third, fourth and fifth subparagraphs.

(b) Replace in its sixth paragraph the phrase "the crime that is punished" for the following: "they committed themselves."

8. Replace in the article 269 ter the expression "The Public Prosecutor's Office, or the prosecutor's assistant attorney" for "The police officer, the Public Prosecutor's Office, or the prosecutor's assistant attorney."

9. Replace the Paragraph 10 of Part VI of Second Book by the following:

"§ 10. Criminal and criminal associations

Article 292.- Whoever is a party to a criminal association shall be punished with lesser presiding to a minimum of half.

The penalty shall be less presiding to the maximum extent if the participation consists in the performance of the functions of the head office, commanding it, financing it or providing it with resources or means, or having founded it.

Any organization consisting of three or more persons, with sustained action over time, which has the purpose of perpetration of simple crimes, shall be understood by criminal association.

Article 293.- Whoever is a party to a criminal association shall be punished with minor presiding to the maximum extent.

The penalty shall be a higher penalty to the minimum extent if the participation is to perform the functions of the head office, to exercise command, to finance it or to provide it with resources or means, or to have founded it.

Any organization made up of three or more persons, with sustained action in time, which has the purpose of perpetration of acts constituting crimes, shall be understood as a criminal association.

If the association ' s purpose is to commit crimes and simple crimes, the penalties set out in paragraph 1 shall apply.

Article 293 bis.- It shall be punished with lesser presiding to the maximum extent than, in a criminal or criminal association process:

(a) Threatens another to provide a false statement or testimony.

(b) It threatens or contrives another to omit to testify or testify, to produce or present false background or evidence, or to omit to produce or present relevant background or evidence.

(c) Provide or deliver to another an economic or other benefit to provide a false statement or testimony or to omit to testify or testify.

(d) Provide or deliver to another an economic or other benefit in order to produce or present a false record or evidence or omit to produce or present relevant background or evidence.

Article 294.- The penalties of articles 292 and 293 shall be imposed without prejudice to those appropriate for crimes or mere crimes committed on the occasion or occasion of such activities.

When the association has been formed through a legal person, it will also be imposed as an accessory consequence of the penalty imposed on the individual responsible, the dissolution or cancellation of the legal personality.

In any event, the confiscation of proceeds shall be imposed in accordance with article 24 bis. All assets linked to the activity in which the offence has been committed shall also be confiscated unless their legal origin is proven.

Commodity shall be imposed in accordance with the procedures established by law.

Article 294 bis.- The confiscation of profits obtained by a criminal or criminal organization shall also be imposed, in the terms of the preceding article, if:

1. Temporary dismissal in accordance with the first subparagraph (b) and (c) and article 252 (2) of the Code of Criminal Procedure.

2. Absolute judgment based on the lack of conviction referred to in article 340 of the Code of Criminal Procedure or definitive dismissal based on article 250 (b) of the Code.

3. Final dismissal or acquittal judgement based on the concurrence of circumstances exempt from liability that do not exclude the wrongfulness of the act.

4. Final dismissal or acquittal judgement based on the termination of criminal liability or the existence of an act which, under the law, terminates that responsibility.

Seizure of proceeds without prior conviction shall also be imposed on persons who have not intervened in the conduct of the wrongful act found in any of the circumstances referred to in article 24 ter.

Seizure of earnings without prior conviction shall be imposed in accordance with the special procedure provided for in Title III bis of Book IV of the Code of Criminal Procedure.

The action to obtain the confiscation of profits under this article shall be prescribed within four years, which has been the time limit for the corresponding criminal proceedings.

Article 294 ter.- When the thing used as an instrument by a criminal or criminal organization or resulting from such crimes is money or has been alienated, lost or concealed, the judge must impose substitute contraction for an equivalent value.

The sum of the equivalent amount shall only be the additional consequence of the penalty. In determining the equivalent value of the thing to be confiscated, the costs that have been necessary to perpetrate the fact cannot be discounted. The equivalent value shall also extend to the fruits or profits of the effects of the fact.

The Public Prosecutor ' s Office shall request the application of the commissary in the equivalent value at the procedural opportunity envisaged to request the confiscation of profits, and the discussion on the amount of the equivalent value will take place at the procedural opportunity envisaged for the determination of the magnitude of the confiscation of profits.

Article 295.- The court shall dispense with the penalties referred to in articles 292 and 293 or impose the lower penalty by one or two degrees to the member:

1. Before any of the facts whose perpetration constitutes the end or activity of the association, it reveals to the authority the existence of the association, its plans and purposes or the identity of its members.

2. It has or has not intervened in the perpetration of the crimes which constitute the end or activity of the association or which correspond to means of which it is used, reveals to the authority the existence of the association, its plans and purposes or the identity of its members so that in the opinion of the court the authority has been in a position to dissolve it before the perpetration of subsequent acts. ".

10. In the article 369 ter:

(a) In paragraph 1:

I. Delete the phrase "or a criminal organization."

ii. Replace the text "or of those who integrate it, the photograph, filming or other means of reproduction of images leading to the clarification of the facts and the recording of communications", by the following: ". The capture, recording and subreptial recording of images or sounds in closed places or that are not of free access to the public, may be authorized by the judge, at the request of the prosecutor when there are certain suspicions that are essential".

(b) Replace in the final paragraph the expression "of Law No. 20,000" by "Article I, paragraph 3, of Book II of the Code of Criminal Procedure".

11. In the article 411 octies:

(a) Replace the second subparagraph with the following:

"When there are substantial suspicions that a person has committed or prepared the commission of any of the offences specified in this paragraph and the investigation makes it essential, the court, at the request of the Public Prosecutor's Office, may authorize the interception or recording of the telecommunications of that person. The capture, recording and recording of images or sounds in closed places or other than free access to the public may be authorized by the judge, at the request of the prosecutor, where there are substantial suspicions based on certain and serious facts that make it essential for the clarification of the facts. Otherwise, the provisions of articles 222 to 225 of the Code of Criminal Procedure shall be in full. ".

(b) Replace the third paragraph with the following:

"Even if the investigation makes it necessary, the court, at the request of the Public Prosecutor's Office, may authorize the use of another or other of the special investigative procedures regulated in Title I, paragraph 3, of the Code of Criminal Procedure."

(c) Replace in the final paragraph the term "law No. 20,000" by "Article I, paragraph 3, of Book II of the Code of Criminal Procedure".

12. Replace in the final subparagraph article 448 the text "under the controlled or controlled delivery technique, in the terms regulated in Title II, Paragraph 1 of Law No. 20,000, which punishes the illicit traffic in narcotic drugs and psychotropic substances." by the following: "under the controlled delivery technique in the terms regulated in Title I, paragraph 3, of the Code of Criminal Procedure."

Article 2.- Insert the following amendments to the Code of Criminal Procedure:

1. Intercálanse en el segundo del artículo 149, entre las expresións "142," y "361", la siguiente: "292, 293", y entre las expresións "391," y "411 quáter", la siguiente: "411 bis, 411 ter,".

2. Insert into article 157 the following final subparagraph, new:

"The Public Prosecutor ' s Office shall apply for appropriate precautionary measures to ensure sufficient assets in order to ensure the confiscation of proceeds from the crime or, if any, confiscation of the equivalent value of instruments or effects of the crime. For this purpose, the judge may authorize the retention of money or furniture in the possession of the accused or third parties, or in bank accounts or in general funds administered by third parties. ".

3. Please enter the following article 157 bis:

"Article 157 bis.- Concession of measures without hearing of the affected person. The measures requested to ensure assets for which the confiscation of profits or equivalent value of goods or effects can be ordered without hearing from the affected person.

If this is the case, the judge must set a deadline not less than thirty days or more than one hundred and twenty days for the Public Prosecutor ' s Office to complete the respective investigation. Following this period without formalization, or without the Public Prosecutor ' s Office requesting the maintenance of the measure on the occasion of formalization, the measure will be invalid. ".

4. Incorporate the following article 218 ter:

"Article 218 ter.- Call records and other history of communication traffic. Where there are well-founded suspicions based on certain facts and this is useful for the investigation, the Public Prosecutor may require any service provider, upon judicial authorization, to deliver the information that is stored regarding the traffic of telephone calls, correspondence or data traffic on the internet of their subscribers, referring to the period of time determined in the court ruling.

For the purposes of this article, all those relating to a communication made through a computer or telecommunications system, generated by the latter as an element of the communication chain, and indicating the origin, destination, route, time, date, size and duration of the communication or the underlying type of service, will be understood by traffic data.

The Public Prosecutor ' s Office may require, within the framework of an ongoing criminal investigation and without judicial authorization, any service provider that provides services in Chilean territory, to provide the subscriber ' s data on their subscribers, as well as information concerning the IP addresses used by them to facilitate the identification of the relevant persons in the framework of the investigation. Service providers should keep the secret of this request.

The subscriber's data will mean that information possessing a service provider related to its subscribers, excluding the data on traffic and content, and that allows to determine its identity, such as the information on the name of the service owner, identification number, address, telephone number and e-mail. Public telecommunications services concessionaires and internet providers shall maintain, on a reserved basis and take appropriate security measures, at the disposal of the Public Prosecutor ' s Office for the purpose of a criminal investigation, for a period of one year, an updated payroll and registration of their authorized IP address ranks and IP numbers of the connections made by their clients or users, with their corresponding traffic data, as well as the addresses or residences of their clients.

Public officials, those involved in criminal investigation and employees of the companies mentioned in this article who intervene in this type of requirement must keep secret about them, unless they are told to testify.

The delivery of the antecedents shall take place within the time limit provided for in the court ruling. If the requested party considers that it cannot meet the time limit in the light of the volume and nature of the requested information or does not exist or does not possess it, it shall communicate this circumstance on the basis of the court, within the term specified in the respective court ruling.

If, despite the measures mentioned in this article, the information is not delivered, the legal representative of the institution or organization concerned may be required under arrest.

The violation of the maintenance of the payroll and updated record of the record referred to in paragraph 4 shall be punished according to the penalties and the procedure provided for in articles 36 and 36 A of Act No. 18,168, General de Telecomunicaciones. Failure to comply with the obligations to maintain a reserved nature and to take the corresponding security measures of the record set out in that subparagraph shall be punished by the penalty provided for in article 36 B (f) of Act No. 18.168. The records thus obtained shall be held by the Public Prosecutor ' s Office, who shall ensure that the data in question are not known by third parties.

The registers may only be used for the purposes of the investigation in which they were requested, or others followed for crimes that deserve a crime penalty or are characteristic of the criminal analysis system and research centres, in accordance with article 37 bis of Law No. 19.640, which establishes the constitutional organic law of the Public Prosecutor ' s Office, and may not be used for other purposes.

The exercise of this authority shall be regulated by general instructions issued by the National Prosecutor, in accordance with article 17 (a) of Act No. 19,640, in order to ensure its rational use. ".

5. Incorporate, between articles 221 and 222, one heading I, new, of the following tenor:

"I. Communication intercept."

6. Article 222:

(a) Replace its first subparagraph with the following:

"Article 222.- Scope of application. The guarantee judge, at the request of the Public Prosecutor ' s Office, may order the interception and recording of telephone communications or other forms of communication when there are substantial suspicions based on certain facts that a person has committed or participated in the preparation or commission, or that he is currently preparing the commission or participation in a crime to which the law assigns him a crime penalty, and the investigation of such crimes makes it essential. ".

(b) In its second subparagraph:

I. Replace the expression "founded suspicions, based on certain facts, that they", by the phrase "founded suspicions based on certain facts, that".

ii. Intercálase entre la expresión "al imputado o sus intermedias" y el punto y además que le follows, la sentencia " y la investigación de tales delitos lo haciere indispensable".

(c) Replace, in its third paragraph, the expression "before" with "specified facts".

(d) Replace its fourth paragraph with the following:

"The order provided by the interception and recording must state the circumstances necessary to identify or determine the person affected by the measure and, if possible, the data that will allow the media to be singled out or telecommunication to intervene and record, such as telephone numbers, IP addresses, post boxes, among others. It will also indicate the police authority or official who will be responsible for the interception and recording procedure, the form of interception, its scope and duration. ".

(e) Incorporate a fifth, new subparagraph, passing the current fifth subparagraph to be sixth and so on, from the following tenor:

"The interception shall not exceed sixty days. The judge may extend this period for periods of up to the same duration, for which he shall examine the concurrence of the requirements provided for in the preceding paragraphs. ".

(f) Insert the following modifications to the current fifth subparagraph, which has become sixth:

I. Replace the expression "telefics and communications" with the phrase "concessionaries of public telecommunication services and internet service providers".

ii. Add, then, the phrase "and under the corresponding security measures" in "reserved character".

iii. Intercálase entre las expresións "sus abonados." y "La refusal" la siguiente sentence: "After the maximum period of maintenance of the data mentioned above, companies and service providers must safely destroy such information."

7. Article 223:

(a) Delete in its first paragraph the word "telefónica".

(b) Replace your fourth and fifth subparagraphs with the following:

"Communications that are impertinent or irrelevant to the investigation of the facts concerned shall, at the same time, be delivered to the persons affected with the measure. The Public Prosecutor ' s Office will destroy any transcription or copy thereof.

What is prescribed in the preceding paragraph shall not apply to recordings that contain relevant information for other procedures followed by acts that may constitute a crime to which the law assigns a crime penalty, of which it may be used in accordance with the preceding rules. ".

8. Please enter into articles 225 and 226 the following articles 225 bis, 225 ter, 225 quater and 225 quinquies:

"Article 225 bis.- Remote registration of computer equipment and scope of application. On a substantiated request from the Public Prosecutor ' s Office, the guarantee judge may authorize the use of computer programs that allow remote access and apprehend the content of a device, computer or computer system, without knowledge of its user, where there are substantial suspicions based on certain facts, that a person has committed or participated in the preparation or commission, or that the offence is currently being committed, or that the commission or participation in a criminal or criminal association is being prepared.

The measure shall be authorized for a maximum period of 30 days. The warranty judge may extend this period for periods of up to the same duration, with a maximum of 60 days, for which the concurrence of the requirements set out in the preceding paragraph shall be examined.

Article 225 ter.- Requirements of the resolution authorizing the measure. The court ruling authorizing remote access should specify, at the request of the prosecutor:

(a) The specific devices, computers or computer systems subject to the measure and the circumstances necessary to identify or determine the person affected by the measure.

(b) The scope of the measure, the way in which access and apprehension of contents relevant to the cause and computer program software will be made through which remote access will be made.

(c) Agents authorized for the enforcement of the measure.

(d) Authorization, if any, for the realization and preservation of copies of the contents for the case.

(e) The specific technical measures necessary to preserve the integrity of the contents, as well as to prevent the access and deletion of such data from the computer system subject to the measure.

(f) The precise duration of the measure.

Article 225 quater.- Registration expansion. When the remote access is executed there are reasons to believe that the intended contents are stored in another computer system or in a part thereof, the guarantee judge, on the basis of the Public Prosecutor's Office, may authorize the extension of the terms of remote access.

The judicial resolution authorizing the expansion of the registry should specify the backgrounds set out in the previous article, which are relevant to the development of the enlargement.

Article 225 quinquies.- Collaborative duty. Telecommunications service providers, access to a telecommunications network or services of the information society and the holders or controllers of the computer system or content subject to remote access, are required to collaborate with police officers responsible for implementing the measure. They are also obliged to facilitate the necessary assistance so that the content learned can be examined and displayed.

The subjects required to provide collaboration in this type of requirement must keep secret about them, unless they are called to declare. The execution of the investigation technique, in the terms of the judicial resolution authorizing it, may not be subject to criminal or civil sanction. ".

9. Replace article 226 with the following:

"Article 226.- Other technical means of research. When the procedure is aimed at investigating a punishable act to which the law assigns a crime penalty, the guarantee judge may order, at the request of the Public Prosecutor ' s Office, the use of technological means to capture, record and record subretly images or sounds in closed places or which are not of free access to the public, where there are substantial suspicions based on certain and serious facts that make it essential for the clarification of the facts. They shall govern, as appropriate, the provisions of articles 222 to 225."

10. Please refer to the following article 226 and before article 226 bis:

"Párrafo 3° bis Special investigative diligences applicable for organized crime cases.

I. Intrusive measures related to communications, images and sounds, and the recording of computer equipment."

11. Replace article 226 bis with the following article 226 A:

"Article 226 A.- Scope of application. The special investigative techniques provided for in this paragraph shall be applicable in the investigation of facts involving participation in a criminal or criminal association, as provided for in the following articles.

Retaining and seizure of correspondence and obtaining copies of communications or transmissions shall apply to the investigation as provided for in article 218.

The measures of intercepting and recording communications, conversations or images obtained in closed places or not of free access to the public shall apply, after judicial authorization, when there are substantial suspicions, based on certain facts, of intervention in a criminal or criminal association and its use is essential for the success of the investigation.

The use and authorization of intrusive measures set out in the preceding subparagraphs shall be governed by the general rules set out in article 222. ".

12. Enter the following article 226 bis, which has become article 226 A, the following heading II, new, and articles 226 B, 226 C, 226 D and 226 E:

"II. Undercover agents, revealing agents and informants

Article 226 B.- Scope of application. The competent Regional Prosecutor may authorize specific police officers to act as covert agents or revealing agents where necessary to ensure the clarification of facts involving participation in a criminal or criminal association, establish the identity and intervention of its perpetrators, know the plans of the association, and prevent the commission of their crimes or verify those they have committed.

The Regional Prosecutor shall resolve the request made by the prosecutor within 72 hours. In the event of a refusal, the prosecutor may again request authorization for police officers to act as undercover agents or revealing agents, providing new backgrounds.

The authorisation established in paragraph 1 shall not be necessary, in cases where the National Prosecutor or the Regional Prosecutor is personally conducting the investigation, in accordance with articles 18 and 19 of Act No. 19,640.

By authorizing the measure, the Regional Prosecutor shall ensure that it is limited to the actions strictly necessary for the purposes of the investigation, that the revealing or infiltrating agents do not induce the perpetration of crimes, and that the security of the revealing or infiltrating agents is properly safeguarded.

The act authorizing the measure shall be kept in the possession of the Public Prosecutor ' s Office in two separate records. However, information regarding the true identity of the agent will be kept only in a register.

The authorization must also indicate the supposed identity with which it will act in the specific case, if it has. The act authorizing it shall also:

(a) Circumscribe the scope of action of such agents in accordance with the background and the offence or the offences referred to in the request.

(b) Express the duration of the authorization, which may not exceed sixty days. She will be extended for equal periods, and must meet the same requirements established for her granting.

(c) Establish measures to ensure the objectives set out in the preceding paragraph, including those provided for in article 226 C, paragraph 4.

If the same circumstances are met in paragraph 1 above, the Regional Prosecutor may authorize any person to act as an informant.

The authorizations set forth in this article shall be confidential and may only be known to third parties in the cases specified in the law.

When the law authorizes the knowledge by third parties, the Public Prosecutor ' s Office shall make available the record that does not contain the true information about the identity of the agents and informants. Access to full registration shall be authorized by the competent security judge with a hearing from the Public Prosecutor ' s Office and authorization shall be granted only if it is strictly necessary, if it does not jeopardize the personal security of the agent or informant and if there are all necessary measures to ensure that the information does not reach third parties. Taking into account the specific background, the judge may authorize access to the registry in full or in part.

Article 226 C.- Undercover agent. Undercover agent is the police officer who conceals his official identity and engages or introduces himself into criminal or criminal associations or groups or organizations referred to in the previous article, with the objective of identifying participants, collecting information and collecting backgrounds necessary for the investigation.

The undercover agent may have a fictitious identity and history. The National Directorate of the Civil Registry and Identification Service shall provide the necessary means for its timely and appropriate materialization. Police officers who have acted in a false identity investigation may maintain such identity when they testify in the proceedings that may arise from the facts in which they have intervened and provided that such identity is provided by a well-founded court ruling.

In addition, the Regional Prosecutor may authorize the opening of a bank account, the acquisition of other relevant identity pieces such as a driver ' s license and the hiring of basic services using the fictitious identity. The use of this faculty will focus exclusively on strengthening the credibility of fictitious identity and history. A regulation issued jointly by the Ministry of Justice and Human Rights and the Ministry of the Interior and Public Security shall establish the procedures and conditions for the exercise of this authority.

Without prejudice to the penalties applicable for the perpetration of other offences, the manifestly misuse of powers associated with fictitious history shall be punishable by the penalty of minor presiding to the minimum degree.

The information obtained by the undercover agent must be disclosed as soon as possible to the person who requested the authorization of the measure.

Article 226 D.- Revealing agent. Revealing agent is the police officer who pretends to require another to carry out criminal conduct in order to achieve the realization of the criminal purposes of the criminal conduct.

The revealing agent may have a fictitious identity and history. The National Directorate of the Civil Registry and Identification Service shall provide the necessary means for the timely and appropriate materialization of those. Police officers who had acted in a false identity investigation may maintain that identity when they testify in the process that might arise from the facts in which they had intervened and provided that this is done through a well-founded court ruling.

The information obtained by the revealing agent must be disclosed as soon as possible to the person who requested the authorization of the measure.

Article 226 E.- Informantes. The informant is the one who provides substantial background to police agencies regarding the preparation or commission of a crime of criminal or criminal association and requires protection.

The authorisation granted the quality of the informant shall be granted by the Regional Prosecutor.

With the authorization of the Regional Prosecutor, the Public Prosecutor may also provide that the person who, with his knowledge and control, participates in a covert operation or a controlled delivery is treated as an informant. ".

13. Enter the following new article 226 E, the following heading III and articles 226 F and 226 G:

"III. Secured delivery

Article 226 F.- Scope of application. The Regional Prosecutor may authorize the controlled delivery of objects whose manufacture, processing, distribution, transport, marketing, importation, exportation, possession, or possession is prohibited or restricted, or objects for which the above-mentioned have been replaced in whole or in part, of the instruments that have served for the commission of the offences concerned, and of the effects and profits of such offences, provided that this is useful for the investigation of the involvement in a criminal association or other.

The technique of allowing the objects referred to in the preceding subparagraph to be transferred, kept, intercepted or circulated within the national territory shall be understood by controlled delivery, whether they leave or enter it, without the interference of the police or the Public Prosecutor ' s Office, but under their knowledge and supervision or control.

In authorizing the measure, the Regional Prosecutor shall ensure that it is limited to actions strictly necessary for the purposes of the investigation, that State agents do not induce the perpetration of crimes, that the procedure does not endanger the personal integrity of third parties and that the assets whose controlled delivery is authorized may, in short, be subject to confiscation.

The decision authorizing the measure shall:

(a) Delimit the object of controlled delivery, as well as the type and quantity of the species concerned.

(b) Express the duration of the authorization, which may not exceed sixty days, and shall be extended for equal periods.

(c) Establish measures to be taken to ensure the objectives set out in the preceding subparagraph.

When objects are in areas subject to customs authority, the National Customs Service shall observe the instructions given by the Public Prosecutor ' s Office for the purpose of applying this investigation technique.

When the controlled or controlled delivery must be fully or partially implemented in foreign territory, it shall conform to the provisions of international agreements or treaties ratified by Chile and which are in force, if any.

Article 226 G.- Suspension of controlled delivery. If the proceedings endanger the life or physical integrity of police officers or undercover or revealing agents involved in the operation, the collection of relevant backgrounds for the investigation or assurance of the participants, the Public Prosecutor ' s Office may arrange for the suspension of the supervised delivery and request the guarantee judge to authorize the arrest of the participants and the seizure of the instruments, objects or effects of the crime. ".

14. Please enter the following section 226 G, heading IV and the following articles 226 H, 226 I, 226 J, 226 K, 226 L and 226 M:

"IV. Common provisions

Article 226 H.- Exemption of criminal responsibility. The undercover agent, the revealing agent, the informant, as well as the officials who participate in a controlled delivery or other measure pursuant to this Paragraph, shall be exempt from criminal liability provided that such offences are to be committed or that they have not been able to prevent in compliance with the decision authorizing the measure.

Article 226 I.- Prohibition of induction to the perpetration of crimes. The undercover agent, the revealing agent and the officials involved in a controlled delivery or otherwise disposed of in accordance with this Paragraph, may not induce the perpetration of offences which, otherwise, would not have been committed by the latter.

Article 226 J.- Secret and access to defense information. The Public Prosecutor ' s Office may order the secret of certain proceedings, records or documents in respect of one or more intervening, where it considers that there is a risk for the success of the investigation or for the safety of undercover agents, revealing agents, informants, witnesses, experts and, in general, of those who have cooperated effectively in the proceedings.

The provisions of article 182 shall apply. However, the Public Prosecutor ' s Office may provide for the keeping of the secret until the closure of the investigation. It should also take measures to ensure that the term of secrecy does not jeopardize the security of the persons mentioned in the preceding subparagraph.

Following the closure of the investigation, the guarantee judge shall seek access to all relevant means of evidence, and shall only restrict it in cases set out in article 226 B, final paragraph.

Any person who reports, disseminates or discloses information relating to an investigation protected by the secret, shall incur the penalty of minor presiding to the maximum of the average degree.

Article 226 K.- Exclusion in the use of special techniques. Police officers, undercover and revealing agents who carry out the measures or actions referred to in articles 226 B, 226 D and 226 F without observing the object or limits imposed by the respective authorization shall be punished, in addition to the penalties appropriate for the crimes committed, with the penalty of suspension of employment to the maximum extent and fine of fifteen to twenty monthly tax units.

The same penalty shall be applied to the prosecutor who, in carrying out special techniques, orders involving abuse in his or her exercise, in accordance with the authority of the Regional Prosecutor or in the court ruling.

The guarantee judge shall declare null and void the proceedings which manifestly exceed the object of the special techniques and shall exclude them, in accordance with article 276.

The police or prosecutor of the Public Prosecutor ' s Office who commits the offence of article 269 ter of the Criminal Code on the occasion of the use of the special techniques referred to in paragraph 1 above, shall be punished with the penalty of minor imprisonment to the maximum degree of imprisonment to the minimum degree and special permanent disqualification to the position.

Article 226 L.- Use of evidence. The background or evidence obtained through the application of the powers provided for in this paragraph and which are irrelevant to the procedure shall be handed over or returned at the time to the persons for whom the measure was requested and any registration, transcription or copy thereof shall be destroyed by the Public Prosecutor ' s Office.

What is prescribed in the preceding paragraph shall not be in respect of any background or evidence that may be useful or relevant to other proceedings followed by acts in which the provisions of this paragraph are also applicable, offences that deserve a crime penalty or are characteristic of the criminal analysis system and investigative focus, in accordance with article 37 bis of Act No. 19,640.

Article 226 M.- Accountability. The National Prosecutor shall report annually on the number of special measures used in accordance with this paragraph, by law No. 20,000 and by law No. 19,913 and on their effects, both to the Public Security Commission of the Senate and to the Citizen Security Commission of the Chamber of Deputies, in sessions that shall be reserved. ".

15. Fill in the following new article 226 M the following heading V and articles 226 N, 226 O, 226 P, 226 Q, 226 R, 226 S, 226 T, 226 U and 226 V:

"V. Protective measures for undercover, revealing and reporting agents

Article 226 N.- Special protection measures. Without prejudice to the general rules on the protection of witnesses provided for in this Code, at any stage of the proceedings the Public Prosecutor ' s Office shall, on its own motion or at the request of a party, have the special measures of protection that are appropriate when it deems, by the circumstances of the case, that there is a serious risk or danger to the life or physical integrity of an informant, undercover agent, revealing agent or of a protected witness, as well as well as to his spouse, descendants, ascendants,

In order to protect the identity, domicile, profession and workplace of the subjects indicated in the preceding paragraph, the prosecutor may apply measures such as:

(a) That in the registers of the proceedings carried out they do not contain their name, surnames, profession or office, domicile, place of work, or any other data that may serve for identification. You may use a key or other verification mechanism for that purpose.

(b) That your domicile, for the purposes of notifications and citations, be set at the office of the prosecutor or the court. The intervening body must make them available to its recipient.

(c) That the proceedings taking place during the course of the investigation to which it is to appear as a witness are carried out in a place other than that where the prosecution operates and whose location shall not be recorded in the respective registry.

Article 226 O.- Prohibition of disclosure of information. The provision of the measure of protection of identity referred to in the preceding article, the court, without hearing from the intervening parties, shall decree the prohibition of revealing, in any way, the identity of the protected persons or the background leading to their identification. You must also decree the ban to be photographed, or your image is captured through any other means.

The infringement of these prohibitions shall be punishable by a lesser term of imprisonment to a maximum extent, in the case of the person providing the information. In the event that the information is disseminated by some means of social communication, its director will also be fined from ten to fifty tax units per month.

In no case may the court found the sentence solely in statements made by undercover agents, revealing agents and informants, for which the prohibition of disclosure of their identity has been decreed.

Article 226 P.- Declaration in Judgment. Statements by undercover agents, revealing agents or witnesses and experts to whom the quality of informants is granted may be received in advance in accordance with article 191 when deemed necessary for their personal safety. In this case, the guarantee judge may provide that the testimony of these persons is provided by any appropriate means that prevents their normal physical identification. The same system of protected declaration may be disposed of by the court of oral proceedings in the criminal case.

Whether the declaration is provided in advance or in the development of the oral trial itself, the court must verify in advance the identity of the protected witness, concealed or revealing agent or the informant, in particular the background concerning their names and surnames, age, place of birth, marital status, profession, industry or employment and residence or domicile. Assigned in the register such a check, the court may decide that any reference to the identity that may endanger its protection is excluded from the debate.

In no case shall the statements of protected witnesses, undercover or revealing agents or of the informants be received and brought into the trial without the defence being able to exercise its right to cross-examine him personally, with the safeguards provided for in the preceding paragraphs. If the statement is made in advance, the guarantee judge may provide for the lifting of the secrecy set out in article 226 J and shall seek access to all relevant evidence. It shall only be restricted in cases established in article 226 B, final paragraph.

Provided by the prosecutor the protection of the identity of witnesses or experts at the stage of investigation, the court shall maintain it, without prejudice to the other rights conferred upon the other parties.

Article 226 Q.- Police protection. On its own motion or at the request of the person concerned, during the course of the trial or even after the trial has ended, if the circumstances of danger are maintained by the prosecutor or the court shall grant police protection to the person in need, in accordance with article 308.

Article 226 R.- Additional protection measures. The protection measures described above may be accompanied by other complementary measures that are deemed appropriate in the case, if necessary.

Article 226 S.- Change of identity. The court may authorize undercover, revealing and reporting agents to change their identity, after trial, if necessary for their safety.

The National Directorate of the Civil Registry and Identification Service shall adopt all necessary safeguards to ensure the secret nature of these measures.

All judicial and administrative proceedings leading to this measure shall be secret. The official of the State who violates this sigile shall be punished with the penalty of minor presiding in his mid to maximum grades.

Those who have been authorized to change their identity may only use their new names and surnames in the future. The malicious use of his previous identity will be punished with the penalty of minor imprisonment to a minimum degree.

Article 226 T.- Violation of the secret of research and identity. Violation of the secret of the investigation and identity of the persons referred to in the preceding articles shall be punished with minor presiding to their maximum degree and perpetual absolute disqualification for public office or office.

Article 226 U.- Review of evidence and conviction. The court shall assess the testimony of undercover agents, revealing agents and informants in accordance with the rules of sound criticism.

In no case may the court found the sentence solely in statements made by undercover agents, revealing agents, informants and protected witnesses for which the prohibition of disclosure of their identity has been decreed.

Article 226 V.- Protection of victims. It is the duty of the Public Prosecutor ' s Office and the police to provide protection to victims of crimes or threats arising from criminal or criminal associations. The prosecutor may use or request, as appropriate, the application of the measures provided for in this paragraph, even if the victim does not intervene as a witness or informant. ".

16. Insert the following heading VI and the following articles 226 W and 226 X:

"VI. Common rule to this paragraph

Article 226 W.- Casual Finding on the occasion of special investigative procedures. If, as a result of the special investigation proceedings provided for in this paragraph, and in the context of the authorization granted by the judge for its execution, there are findings of objects, documents or backgrounds of which no news was made, which allow to suspect the existence of a different punishable act, such objects, documents or background may be used for the subsequent persecution of the discovered offence, if the offence is liable to a penalty equal to or greater than a minor presiding or a penalty.

What is stated in the preceding paragraph shall not apply to the interception of communications, which shall be governed by the end of article 223.

Article 226 X.- Special rule on terrorist offences. When the commission of the offences under Act No. 18,314 has been committed or prepared, the special investigation proceedings provided for in this paragraph may be used by the prosecutor, whether a person, a group of two or more persons or a criminal or criminal association. ".

17. Article 259:

(a) Add a new third paragraph, moving from the current third subparagraph to the fourth paragraph, of the following:

"If the prosecutor requests the application of the confiscation of profits or, if appropriate, of the confiscation of the equivalent value of effects or instruments of the crime, he shall indicate its approximate amount and express clearly and accurately the basis of his application, and shall point out the means of proof that he intends to avail himself and, if any, to comply with the provisions of the preceding paragraph."

(b) Enter the present third paragraph, which becomes a fourth paragraph, after the point and apart, which becomes a point and followed, the following sentence: "However, the prosecution may request the confiscation of profits from third parties in the cases provided for by law."

18. Enter the third paragraph of article 348, after the point and apart, which becomes a point and followed, the following sentences: "In respect of the confiscation of the proceeds of the crime or of the equivalent value of effects or instruments of the crime, if they amount to more than 400 tax units per month, it shall be provided for in the following article. Otherwise, the court shall impose it in the same sentence.

19. Please enter the following article 348 bis:

"Article 348 bis.- Composition of earnings and confiscation of equivalent value. In the event of a request for the confiscation of earnings or equivalent value in excess of 400 tax units per month, or if the application of the confiscation affects third parties, a special hearing shall be cited in the conviction.

If the confiscation only affects persons who have been convicted, the hearing will take place within the tenth day of the date on which the sentence is executed. If the confiscation affects third parties, the hearing may not take place before thirty days or after sixty days counted from the date on which the judgement is enforceable. In both cases, the resolution must be notified to those affected.

The resolution and the respective hearing shall be subject to articles 415 quinquies, 415 sexies and 415 septies.

The court shall pronounce its decision to impose the confiscation or reject the application. In the first case, it will determine the amount for which it is imposed. If there are assets insured to make it effective, it must identify them. ".

20. Insert the following subparagraph in article 391:

"If the prosecutor requests the application of the confiscation of profits or of the confiscation equivalent of goods or instruments, he must indicate its approximate amount and clearly and accurately express the basis of his application, exposing the background or elements on which it is based."

21. Insert in article 396 the following final subparagraph, new:

"If the request is made in the request for the confiscation of profits or forfeiture in the equivalent value of goods or instruments in the amount equal to or less than 400 tax units per month, the judge shall rule on its origin in the judgment. If the amount is higher or if the confiscation affects third parties, it shall be provided in article 348 bis."

22. Add the following subparagraph to article 411:

"If the prosecutor requests the application of the confiscation of profits or of the confiscation of the equivalent value of goods and instruments, he must indicate its approximate amount and express clearly and accurately the basis of his request."

23. Insert the following final subparagraph into article 413:

"If the prosecutor asks for the confiscation of profits or forfeiture of the equivalent value of effects or instruments of the crime in an amount equal to or less than 400 tax units per month, the judge shall pronounce himself on his origin in the judgment. If the amount is higher or if the confiscation affects third parties, it shall be in accordance with article 348 bis."

24. Incorporate in Book IV, following article 415, the following Title III bis and the following articles 415 bis, 415 ter, 415 quater, 415 quinquies, 415 sexies, 415 septies, 415 octies and 415 nonies:

"Title III bis

Procedure relating to the imposition of confiscation without prior conviction

Article 415 bis.- Scope of application. The rules of this Title are applicable in cases where the law provides for the confiscation of assets or assets obtained through the commission of the wrongful act or used in its perpetration without subjecting its proceeding to the issuance of a conviction concerning the act.

It is competent to hear the proceeding of the commission without conviction by the court which has issued the ruling that puts an end to the respective investigation or trial.

Article 415 ter.- Start of the procedure. Property has been seized or insured under article 157, the Public Prosecutor ' s Office or the plaintiff shall request by written request submitted to the court for a special hearing in order to effect the confiscation. The request shall be submitted within a period not exceeding 10 days after the last resolution concerning the respective investigation or trial is enforced, placing it on a temporary or definitive basis.

After this deadline has not been deducted, the court will open up a maximum period of five days for the prosecutor to deduce the requirement or to inform his decision not to do so, and will immediately inform the Regional Prosecutor. If the requirement is not deducted within this time period, the court shall, of course, terminate the seizure and the precautionary measures that have been provided.

Article 415 quater.- Content of the requirement. The requirement must contain:

(a) The individualization of all persons who under the law could be affected in their property or property by the imposition of the confiscation, where any.

(b) A succinct relation to the fact that was attributed to him, and the reasons expressed in the resolution that put an end to the procedure, of its term without condemnation.

(c) Exposure of the background or elements that form the application.

(d) Exposure of the amount and of the movable and immovable property upon request.

(e) The individualization and signature of the applicant.

Article 415 quinquies.- Citation to audience. In the resolution providing the request, a special hearing of confiscation shall be summoned, which shall not take place before thirty or after sixty days.

In the summons, the judge shall order the parties to appear at the hearing with all their means of proof. If any party requires the summons of witnesses or experts through the court, it shall make the respective request at least ten days before the date of the hearing.

The requirement and the resolution required by the latter shall be notified to all persons referred to in the preceding article (a) and, where appropriate, to the other persons involved in the respective investigation or trial, at least fifteen days in advance of the date of the hearing.

Article 415 sexies.- Development of the audience. The hearing will begin with reading the request for the application of the confiscation made by the Public Prosecutor ' s Office or the plaintiff and the presentation of the background to be offered by the other parties. If any of the parties so requests, the court may arrange for a pre-trial hearing. Otherwise, the hearing will continue its course by receiving the proof offered.

In that which is not incompatible with the nature of this procedure, the hearing shall be governed by the rules of simplified judgment.

Evidence of the facts on which the proceeding of the confiscation depends, including its amount, shall be produced in accordance with article 295 and appreciated in accordance with article 297. The court will form its conviction on the basis of the preponderant evidence produced during the hearing.

If there is no opposition, the judge may fail with the sole merit of the content of the request for confiscation submitted and duly notified.

Article 415 septies.- Content of the sentence. The sentence in the contempt proceedings shall contain:

(a) The mention of the court, the date of its decision and the identification of the persons involved and the certification of having issued the notifications referred to in article 415 quinquies, paragraph 3.

(b) The declaration of the request of the Public Prosecutor ' s Office, the plaintiff and the defences of the persons concerned, if any, and their respective grounds.

(c) The brief analysis of the evidence produced.

(d) The factual and legal reasons underlying the judgement, in particular those relating to the existence of the wrongful act from which the proceeds or its connection with the instruments or effects concerned.

(e) The decision of the matter, imposing or denying it, and in the first case determining the amount for which it is imposed.

Article 415 octies.- Resources. The appeal of nullity provided for in Title IV of Book III may be lodged against the final judgement, as soon as the challenge of the imposition or refusal of the committal is sought. If the amount is challenged, the appeal may be appealed, which may, in its case, be appealed in a nullity relief.

The requesting prosecutor and the plaintiff may, if any, appeal only if they were brought to trial.

The court which is aware of the appeal may declare the invalidity of the hearing provided for in article 415 sexies or, if it is solely an error of law, cancel the judgement and issue a sentence of replacement.

Article 415 nonies.- Execution. Once the sentence imposed by the commission is enforced, it will be executed in accordance with the provisions of Article 468 bis."

Article 3.- Intercálase en el article 1 of the Law No. 18.216" , which establishes penalties that indicate as alternatives to custodial or restrictive sentences, the following new fifth subparagraph, passing the current fifth and sixth subparagraphs to sixth and seventh respectively:

"In the same way, the penalties referred to in paragraph 1 or article 33 shall not be imposed on the perpetrators of the offence under article 293 of the Criminal Code, except for those who have cooperated effectively with the investigation."

Article 4.- Intercálase en el article 3 of Decree Law No. 321, 1925which provides for parole for persons sentenced to custodial sentences, the following new sixth paragraph, and the current sixth paragraph to be seventh:

"The persons convicted of the offence under article 293 of the Criminal Code may apply only to the benefit of probation when they have served two thirds of the sentence, except those who have cooperated effectively with the investigation, those who may apply in accordance with the above article."

Article 5.- Modify article 171 of Professional Code of Tribunals as follows:

(a) Replace subparagraph 1 with the following:

"Article 171. The purpose of civil action for the restitution of the thing or the imposition of the confiscation of the proceeds from the offence or, in cases where the law provides it even without conviction, of the wrongful act which corresponds to the offence, shall always be brought before the court which knows the proceedings relating to the respective criminal procedure. ".

(b) Replace the final subparagraph with the following:

"The civil court mentioned in the preceding paragraph shall be competent to hear the execution of the civil decision of the final judgements handed down by judges with criminal jurisdiction, as well as the judgement imposing the confiscation of the proceeds from the wrongful act corresponding to the crime or, if any, the value equivalent to the effects or instruments of the crime."

Transitional arrangements

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, June 5, 2023.- GABRIEL BORIC FONT, President of the Republic.- Carolina Tohá Morales, Minister of the Interior and Public Security.- Luis Cordero Vega, Minister of Justice and Human Rights.

What I am transcribing to you for your knowledge. Attentively, Manuel Zacarías Monsalve Benavides, Undersecretary of the Interior.

Constitutional Court

Draft law that updates crimes that sanction organized crime, applies commissary of profits and establishes special techniques for its investigation, corresponding to bulletin No. 13,982-25

The Secretary of the Constitutional Court, who subscribes, certifies that the Honorable Chamber of Deputies and Deputies sent the bill set forth in the heading, approved by the National Congress, in order that this Court, exercise the preventive control of constitutionality in respect of article 2, No. 24, only in respect of article 415 octies it incorporates, and of article 5 of the bill; and by judgement of 23 May 2023, in the

It states:

(1) That the provisions contained in article 2, paragraph 4, only in respect of the final subparagraph of article 218 ter which it incorporates; in article 2, paragraph 24, only in respect of the second subparagraph of article 415 bis, which it incorporates, and in article 5 of the Draft Law referred by the National Congress to preventive control, are inherent in the Constitutional Organic Law and are in conformity with the Constitution of the Republic.

(2) That this Court does not issue a ruling, in a preventive review of constitutionality, in respect of the provision contained in article 2, paragraph 24, only in respect of article 415 octies, which incorporates, the draft, not to deal with matters specific to the Constitutional Organic Law.

Santiago, May 24, 2023.- María Angélica Barriga Meza, Secretary.