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Statut concernant la Convention de Budapest

Statut concernant la Convention de Budapest

Statut : Partie Déclarations et réserves : declarations – articles 2,3,7; reservations – articles 4, 6, 9, 22, 29 Voir le profil légal

Politiques / stratégies en matière de cybercriminalité

Chile has adopted a National Cybersecurity Policy in 2017 when the work of the Inter-Ministerial Committee on Cybersecurity resulted in a document addressing in particular the prosecution and punishment of cybercrime. The policy is aiming also at reducing the risks associated with cyberspace and at improving areas like awareness, training and a culture of cybersecurity among the citizens. With a time- frame of five years (2017-2022), the policy is implementing the goals of the Digital Agenda for 2020, a roadmap designed in 2015 by the government to guide the country’s digital development. Measure 25 of the National Cybersecurity Policy focuses on developing an International cyberspace and cybersecurity policy.

The national authorities have been working on the development of responsiveness and management of cyber incidents through the implementation of procedures and best practices for managing incidents and cyber security in general. Such procedures and best practices are found under the Supreme Decree No. 1299 Programme for Improving Management and Information Security Systems.

 

Législation sur la cybercriminalité

État de la législation sur la cybercriminalité

Chile was officially invited by the Council of Europe to accede to the protocol of accession to the Budapest Convention since 2009, and in 2017 the government deposited the instrument of accession to the treaty.

On 20 June 2022, a new cybercrime Law was enacted (Law No. 21.459/2022). The new Law repeals the former cybercrime law (Law No. 19.223/1993), modernizes the Chilean legal framework on cybercrime and adapts it to the provisions of the Budapest Convention.  Among new provisions, Chile criminalized offenses such as abuse of device, computer-fraud and computer forgery as well as offered exemption from criminal liability for “ethical hacking” practices.

 

Droit matériel

The application of criminal law is set forth in Article 5 of the Criminal Code (1874) , which is based on the principle of territoriality, as well as in Article 6 which sets the limits of the principle of extraterritoriality of criminal law.


The offenses related to the use of information and computer systems that are sanctioned and punished in Chile by way of Law No. 21.459/2022 are the following:

  • Unlawful access (art. 2)
  • Unlawful interception (art. 3)
  • Attack on the integrity of computer data (i.e., data interference, art. 4)
  • Attack on the integrity of computer systems (i.e., system interference, art. 1)
  • Abuse of devices (art. 8)
  • Computer forgery (art. 5)
  • Computer fraud (art. 7)

 

Offenses related to child pornography are found in the Criminal Code (1874) (art. 366 quinquies, and art. 374 bis and ter). Law No. 21.459/2022 on cybercrime states that abusing the vulnerability, trust or lack of knowledge of children and adolescents constitutes an aggravating circumstance. Offenses related to copyright and related rights are listed in Law No. 17.336 on Intellectual Property.

Droit procédural

The first and second paragraphs of Article 76 of the Political Constitution of the Republic of Chile expressly sets forth the powers of the Judiciary to hear civil and criminal cases and to solve and execute the cases tried under the Tribunals established by legislation.

The criminal procedural law of Chile does not contain provisions regarding the recognition and use of electronic evidence in national courts. However, the provisions of the Criminal Procedure Code (2000) set forth the general rules for the procedures related to the investigation of crimes, including cybercrime. The criminal procedural legislation in Chile provides the following:

 

Other procedural laws include:

  • Proceedings of the criminal investigations that Public Prosecutors might conduct (arts. 180 to 189 of the Criminal Procedure Code (2000))
  • Authorization by the investigating judge at the request of the Public Prosecutor to request that any communications company provide copies of communications transmitted or received by them and arrange the delivery of the versions that may exist in the broadcasting of radio, television or other means. (Art. 219 of the Criminal Procedure Code (2000))
  • Procedure to conduct the registration of interception and recording of telephone communications and the corresponding notification to the affected party (Arts. 223, 224 and 225 of the Criminal Procedure Code (2000))
  • Using photographs, films or other technical means of reproducing images that help clarify offenses deserving punishment of crime (Art. 226 of the Criminal Procedure Code (2000))

Garanties

The protection of human rights and safeguards under the legislation of Chile are the following:

Lois et règlements connexes

The following laws, codes and ordinances contain provisions relating to offenses committed through the use of computer systems and Internet, as provided in the section on substantive and procedural law:

Institutions spécialisées

The powers of the Public Prosecutor to investigate acts constituting crimes are laid down in Articles 80-A and 80-B of the Chilean Constitution. The Public Prosecutor (Ministerio Publico) is exclusively responsible of conducting the investigations of the facts constituting crimes, including cybercrime and to exercise criminal public prosecution as provided in its Constitutional Organic Law.

The Investigations Police of Chile has a research unit specializing in cybercrime called "Metropolitan Cybercrime Investigation Brigade" since October 2000 whose main functions are to detect and investigate illegal conduct on the Internet, provide evidence to Courts and Public Prosecutors and to provide training and research formation in computer crimes. The Metropolitan Cybercrime Investigation Brigade is composed of three areas: (i) Internet Crimes Against Children; (ii) Computer Crimes; and (iii) Computer Forensics.

Chile has a Computer and Security Incident Response Centre known as CSIRT-CL, which is sponsored by the Ministry of the Interior and Public Security, whose main mission includes: (i) provide information and assistance to the Network Connectivity of the State and, in general, the government cyberspace; (ii) administering a system of national and international cooperation on cybersecurity, in order to reduce the risk and articulate response when crimes are actually materialized; (iii) promote good practices in cybersecurity within the government administration; (iv) promote the protection of critical information infrastructures and key resources of the country; (v) promote the strengthening of the legal framework as it relates to computer and cybercrime; (vi) promote awareness on cybersecurity.

Created by the Supreme Decree No. 533/2015, the Interministerial Committee on Cyber Security (Comité Interministerial sobre Ciberseguridad [CICS]) is gathering representatives of Defense, Foreign Affairs, Finance, Telecommunications, and the National Agency for Intelligence, among others.

The government announced in September 2021 the creation of a Data protection Authority that is yet to be put in place.

Coopération internationale

Autorités compétentes et canaux

Legal Framework

The Criminal Proceedings Code (1906) contains provisions for the extradition of accused parties when located in foreign territory if the offense is considered as such in accordance with international law (art. 279). The extradition procedure of accused individuals is conducted pursuant to the provisions contained in Title VI of the Criminal Proceedings Code (1906) (arts. 635-656).

Chile is part of the Inter-American Convention on Extradition, of the Central American Extradition Agreement of 1924 and of the Treaty on Extradition of 1903, instruments that mutually recognize and facilitate criminal extradition of prosecuted individuals with the great majority of Latin American countries.

Chile has signed and ratified extradition treaties and conventions on international judicial cooperation in criminal matters with the following countries: Australia, Belgium, Bolivia, Brazil, Colombia, Korea, Ecuador, Spain, United States, United Kingdom, Nicaragua, Mexico, Paraguay, Peru, Portugal, Uruguay and Venezuela.

The official list of extradition treaties and conventions on international judicial cooperation in criminal matters that Chile has signed and ratified is available in the Library of the National Congress of Chile:

In addition, Chile is part of the following agreements:

  • U.S.-Chile Cyber Threats Cooperation Agreement: defense and cooperation, specifically on cyber operations and protection of Chile's cyber domain
  • Ecuador-Chile Agreement: cooperation in issues related to defence, including cyberdefence and cybersecurity
  • Resolution on Working Group on Cooperative and Confidence Building Measures for Cyberspace, Inter-American Committee against Terrorism: interstate cooperation, transparency, predictability and stability, risks of misperception, escalation, and conflict that may stem from the use of ICTs
  • OAS Cyber Security Initiative: Chile is co-sponsor
  • Global Forum on Cyber Expertise: Chile is member

Competent authorities and channels

The competent authority to investigate crimes in Chile is the Public Prosecutor (Ministerio Publico) with the support of the Investigations Police of Chile. The powers and attributions of the Public Prosecutor are contained in Article 77 of the Criminal Procedure Code (2000) and the Organic Constitutional Law of the Public Prosecutor. The powers and duties of the Investigations Police of Chile, which acts as assistant to Public Prosecutor in the investigation tasks, are provided for in Articles 79-83 of the Criminal Procedure Code (2000).

The extradition of accused parties is conducted through the provisions of the Convention on Extradition of Montevideo and the respective extradition treaty with the country in which the accused is being processed. The authorities and official channels to conduct an extradition procedure are the Supreme Court, the Public Prosecutor (Ministerio Publico) through the prosecutors and the Ministry of Foreign Affairs of the Republic of Chile.

Guides pratiques, modèles et meilleures pratiques

The competent authority to investigate crimes in Chile is the Public Prosecutor (Ministerio Publico) with the support of the Investigations Police of Chile. The powers and attributions of the Public Prosecutor are contained in Article 77 of the Criminal Procedure Code (Law 19.696) and the Organic Constitutional Law of the Public Prosecutor. The powers and duties of the Investigations Police of Chile, which acts as assistant to Public Prosecutor in the investigation tasks, are provided for in Articles 79-83 of the Criminal Procedure Code (Law 19.696).

The extradition of accused parties is conducted through the provisions of the Convention on Extradition of Montevideo and the respective extradition treaty with the country in which the accused is being processed. The authorities and official channels to conduct an extradition procedure are the Supreme Court, the Public Prosecutor (Ministerio Publico) through the prosecutors and the Ministry of Foreign Affairs of the Republic of Chile.

Jurisprudence / droit jurisprudent

The Supreme Court of Chile has issued judgments and case law related to child pornography and interception of private communications, as well as computer sabotage. The rulings and decisions of the Supreme Court may be accessed directly on the website of the Judicial Branch of Chile

Sources et liens

Institutions :

Research and databases:

 

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