Observations on the approach to the mistake of law defense in Chilean jurisprudence

Abstract

The following article presents different considerations regarding the mistake of law and how it has been addressed in the Chilean legal system. The author opens this chapter with a brief historical review of the role played by unlawfulness and its knowledge or ignorance within the imputation of facts, emphasizing the criminal field regarding these crimes. He also reviews the trends, opinions, and doctrinal development that it has had over time. In a second section, the author briefly explores the limits between the mistake of law and the type of error, facing the complex figure of putative self-defense, culminating with the case against Castro Muñoz. Next, the author reviews the jurisprudence before this case, explaining what the sentences consisted of, the application and scope of article 8 of the Chilean Civil Code, and the idea of voluntariness present in article 1 of the Chilean Penal Code. It ends with a section dedicated to the criterion that during the last decades has admitted, discussed and consecrated the mistake of law as a defense, taking several cases to explain its consolidation, to point out which crimes are still under discussion, and which factors must be considered when carrying out the normative exercise that allows admitting or not the concurrence of a prohibition error in the face of an unlawful conduct.