The article analyzes the argument accepted by some Chilean criminal courts, according to which the movement permits issued through the website “Comisaría Virtual” are not “public documents”. Accordingly, the forgery of such permits would not be punishable under the crime of forgery of public documents. The article criticizes this approach and suggests an alternative interpretation, which leads to sanctioning the forgery of such documents.
Abstract: The paper places in a broad doctrinal context the Chilean Supreme Court’s important rulings on art. 318 of the Penal Code (the most widely used and debated criminal figure in the context of what could very well be referred to as the "Chilean criminal battle" against the Covid-19 pandemic. Those rulings had the indisputable virtue of ruling out the criminal nature of cases of mere infringement of the curfew. In doing so, the Supreme Court made recourse to the doctrinal notions of hypothetical danger and abstract-concrete danger. The paper focuses on these concepts, cross-checking them with foreign and Chilean doctrinal sources (particularly looking into the work of the Spaniard Ángel Torío, who first came up with the notion of hypothetical danger). The paper closes by critically examining the criminalization of unauthorized crowd gatherings, a hypothesis whose criminalization under art. 318 CP was explored in obiter dicta by the aforementioned jurisprudence.
Spanish translation of G.L. Gatta, Covid Emergency and suspension of the statute of limitations for the crime, in Sistema penale, December 26, 2020
Commentary on Rol 8950-20 Judgment of 5 January 2021
The effects of the COVID-19 pandemic and related restrictions on homicide and property crime in a UNODC research brief
Supreme Court of the United States of America, November 25, 2020, Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York