In an interview with Emol, former undersecretary and current Executive Director of JSCA Jaime Arellano underscored the importance of “the Chilean criminal justice system acquiring increasingly strong legitimacy with the people.”*

*This interview was conducted by journalist Tamara Cerna with EMOL (Chile) and was published on Sunday, December 13, 2020.

“The first thing we have to do is recognize that there has been a paradigm shift in the Chilean criminal justice system,” begins Jaime Arellano, the Executive Director of the Justice Studies Center of the Americas (JSCA), looking back over the 20 years that have passed since the implementation of the criminal procedure reform.

The attorney, who served as Undersecretary of Justice during the presidency of Ricardo Lagos (2000-2006), was responsible for promoting the process throughout the country. He recognizes in this conversation with Emol that there were both “impressive results” and flaws, though he adds, “20 years is a short amount of time in a justice system.” It is a time of confinement.”

In regard to the former, he notes case management and response times. While some cases have lasted for years after the beginning of the investigation, he assures us that this “is a relatively reasonable time for a complex case involving serious crimes,” and that the average is much lower.

In regard to areas that still require improvement, he refers to “white collar” crime like the recent cases involving SQM, Corpesca, pharmacies and Penta.

Financial Crimes

“We need to make progress on the prosecution of financial crimes such as collusion, use of privileged information in the stock market, tax fraud and public and private corruption,” Arellano said in regard to the situation in Chile.

He believes that the problem is more structural: that the Criminal Code, which dates back to the 20th century, does not include certain crimes, leaving out, for example, this type of offense.

“It is fairly clear that the critique that the justice system is classist because it is oriented towards a certain type of person is not actually an issue with the justice system, but with our Criminal Code. Our criminal laws set terribly serious sanctions for physical crimes involving use of force and other not very serious ones for the people who commit other crimes.

He added, “There is a message that we are going to send a poor person who committed a crime to jail but that we will go easier on someone who has more resources and education.”

This has to do with “an almost unconscious matter”: “Who is discussing justice? Who is passing legislation? One socioeconomic group. So, the same people who pass legislation have to be hard on those who are not part of their group.” “These financial crimes cause much more damage than physical crimes today. The structure of organized crime and financial crimes involves billions of dollars in Chile and elsewhere in the world, so we have to take the task of prosecuting them seriously,” he explained.

“The sentences should aim to take those people out of that environment. If the manager of a company engages in collusion to set prices, that person should be prevented from working in management roles, serving on boards and founding companies (…). We are very hard on some crimes and not on others.”

JSCA’s Executive Director also believes that it is necessary to make progress on cybercrimes and matters involving gender, hate crimes, migration and crimes against members of sexual minorities. He believes that this should be addressed in the new Constitution and Criminal Code. “We need Chilean criminal justice to acquire greater legitimacy among the people,” he said in closing.

Criticism of institutions

Arellano believes that it is also necessary to analyze the use of early dismissals. He says that it is “reasonable” for around 5% of the cases that enter the system to end in trial, but not the way that the public prosecutor’s office is closing out cases.

He argues in favor of better communication with the public. The parties should know why the case was closed, that the evidence contributed may contribute to other investigations and says that they should be informed of the results of the case.

“It is important for provisional closures not to be used to lower the numbers (of pending cases). That should not mean that they will be shelved. They should be put into a database that is used to inform the prosecutors’ criminal analysis,” he says.

Arellano also noted the importance of examining years old complaints of prosecutorial workloads “under a microscope” given that not every case assigned involves the same amount of work. In regard to the police, he proposes encouraging the investigative role of the Policía de Investigaciones (PDI) with greater territorial coverage and having the Carabineros limit their role to crime prevention.

Read the full interview here: