a. Legislation – Whistle-blower
i. What is the existing legislative regime in force?
There are two legal provisions, Law No. 29542, protects whistle-blowers in the public sector mostly concerning acts of corruption; and Law No. 27378 which protects witnesses, collaborators, investigators, experts, victims, etc. concerning organized crime. The laws to intersect in that should a whistle-blower need protections after being implicated in organized crime protections are provided under different circumstances.
Peru has ratified both the UN Convention against Corruption and the Inter-American Convention against Corruption. Law N. 29542 is said to have been implemented in order to fulfil these international obligations, but has been criticized for its lack of enforcement in the practical sense, lack of funding and training, and overlapping/confusing/wasteful allocation of responsibilities to government enforcement entities.
1. Which Acts/codes directly apply to the area?
Law No. 29542, Law on Whistle-blowers’ Protection in the Public Sector of June 2010.
This law expressly modifies Law n. 27378, art. 1 to narrow its application and objective, although most other provisions remain similar/the same.
The objective of the law is to protect and grant benefits to public officials and public servants, or to any citizen, that formally denounces arbitrary or illegal acts that occur in any public entity and that can be investigated or punished administratively (essentially word for word translation). There is a monetary punishment for malicious reporting and false reporting. The law protects the identity of whistle-blowers and provides employment protections. Information is to remain confidential beyond the conclusion of the case, except in cases of malicious complaints. Article 8/10 sets out the exact methods of protections and benefits. Much attention is paid to protecting the jobs of whistle-blowers and steps that should be followed if the whistle-blower encounters reprisal for whistle-blowing. I have seen slightly different version, making it unclear to me which is the latest, although there do not seem to be many discrepancies in the legal provisions, only different articles referring to the same legislation.
Arbitrary and illegal acts or omissions are ones committed by public officials and public servants that contravene the legal provisions in force and that affect or endanger the function or the public service.
Art. 6 Exceptions to the application of the law
That which directly affects national defense, internal orders or intelligence activities
That which affect foreign policy and international relations
Information obtained in violations of fundamental rights
That which may injure professional secrecy, i.e. diplomats, etc.
Denouncements against those protected by special laws (immunity)
Art. 7‚ Requirements of a Complaint
Reference to the arbitrary or illegal act or omission, in writing and duly supported, including the author’s identification / those that participated in the complaint, any facts even if they aren’t material to a judicial or administrative proceeding, any facts about acts that were subject to a judgement. The whistle-blower is expected to continue to assist the authorities when necessary.
If, as a consequence of a complaint to the Comptroller under this law, there is evidence of the commission of a criminal act it will be passed to the Public Minister for investigation. The whistle-blower will be protected by Law No. 27378 (below) concerning certain crimes outlined in article 12.
Protections/Benefits to the whistle-blower:
- Anonymity‚ The whistle-blower will receive an identification code to receive the benefits of the law.
- Regardless of the labor code that the whistle-blower falls under, the person can not be removed or let go from their employment position as a consequence of the qualified and admitted complaint. If the whistle-blower has a contract under the Location of Service or Administrative Service Contract (? – exact translation of the contract) (CAS)), the contract or its renewal can not be suspended due to the complaint. The Comptroller is to adopt the methods necessary to support the whistle-blower to resort to these labor provisions.
- When reprisals against the whistle-blower, regardless of the labor code that the whistle-blower falls under, that materialize in hostile acts found in the Legislative Directive no. 728 and similar norms, and the whistle-blower informs the Comptroller General of the situation, it should be referred to the Minister of Work and Employment Promotion for a workplace investigation. If the minister notes the act of hostility, and the official’s conduct is found to be a grave offense, it is cause for a justifiable dismissal of the official in accordance with the relevant law.
- In the case where the whistle-blower cooperated in the acts complained of, the administrative punishment will be gradually reduced in accordance with the grade of participation in the arbitrary or illegal acts.
- In the case where the acts complained of contravene an administrative norm y the punishment is a monetary fine, the whistle-blower will receive a proportionate reduction to their collaboration.
The benefit established in (e) is not applicable to a whistle-blower that has benefited from the act complained of.
In the case of a whistle-blower in part (d), the benefits cease at the conclusion of the investigation of the corresponding complaint, if their participation is confirmed, which was not known when the complaint was made.
The benefits a-e apply to any whistle-blower , whatever type of citizen‚
Law No. 27378, Law that Establishes Benefits for Collaboration in the Field of Organized Crime was enacted in 2000. I recommend translating the entire law if it seems informative. It is meant to protect collaborators as well as witnesses, investigators and victims involved in criminal law proceedings. Judges or prosecutors have the power to expand protections to spouses or partners, ancestors, descendants, siblings or people related to the collaborator depending upon the risks and dangerousness of the particular circumstances.
Art. 1 ‚ Object of the law ‚ persons who encounter or are not subject to a preliminary investigation or penal process, as well as those sentenced under laws noted in this law. Art. 21 names those to be protected by the law‚ collaborators, witnesses, experts or victims involved in criminal processes material to the law at hand. The judge is able to assess the person’s level of danger, including their property, and their‚ ascendants, descendents and brothers.
Art. 4/7‚ Benefits to collaborators generally surrounding protection from criminal prosecution in exchange for cooperation. There is a list of crimes and persons and their circumstances that are excluded from certain benefits or are provided limited access to those benefits.
Art. 22‚ Protective Measures:
The judge will assess the level of risk and danger to the person and call for the necessary measures to protect the person’s identity, profession and place of work. Protections include:
- Police protection, including designation of permanent police personnel at his home and in his daily journeys, change of residence and the concealment of his whereabouts for all purposes;
- Confidentiality of the identity of the protected party in the investigations in which he takes part. In these cases, the assignment of a secret code will be permitted.
- Involvement of the protected party in the proceedings in which he must personally appear, using any means that makes his normal visual identification impossible;
- Establishing the office of the competent prosecutor, as domicile, for the purposes of summonses and notices.
Art. 23 — Additional measures — mostly to protect the person’s identity and maintain confidentiality. In exceptional cases new identity documents can be issued or financial means will be provided to change residence or work. This is funded by the Special Fund for Management of the money obtained illegally against the state, FEDADOI, and by the Evaluation Commission of the Repentance Law.
2. Which other Acts/code indirectly apply to the area (i.e. are there relevant civil or criminal procedure provisions which could affect rights / duties under principal Acts (those which directly apply)?
The Peruvian Code of Criminal Procedure grants victims of any crime the right to protection and assistance. It also regulates the Protective Measures applicable to those acting as witnesses, investigators, victims and collaborators involved in criminal proceedings. Title V establishes procedural rules, guidelines and requirements related to these measures. As a result, the Regulations of the Comprehensive Protection Program of Witnesses, Investigators, Injured Parties or Collaborators involved in criminal proceedings, law orders the Attorney General to launch this program and the Prosecutor‚ Office to immediately establish the Central Protection Unit. The Central Protection Unit is a support agency of the Attorney General‚ office with the primary function of developing policies for the program and issuing technical guidelines for efficient and effective performance. There are also District Units of Assistance to Victims and Witnesses.
Protective measures under this program include:
- Police protection;
- Confidentiality of the identity of the protected party in the investigations in which he participates; and
- Use of mechanical or technological procedures to avoid endangering the safety of the protected party.
In addition, a Special Unit for Investigation, Testing and Protection was created within the National Police force. Its staff will be appointed by the Directorate General of Police with the approval of the Attorney General Office.
Supreme Decree No. 020-2001-JUS of July 2001, created a system of protection for those who cooperate in criminal proceedings against persons involved in organized crime. It established the police unit for witness protection, etc.; however, the program has significantly suffered from a lack of funding.
Peru ratified the UN Convention against Corruption in 2004 and the Inter-American Convention against Corruption in 1997.
3. How is the division of power set out? Is the Relevant Jurisdiction federalized?
Peru is a civil law system. Since the early 2000s and the exile of President Fujimori the country has begun enacting progressive, and relatively carefully crafted codes and organic laws. Apparently, Peru has a poor system for judicial reporting and a minimal regard for the persuasive effect of jurisprudence.
There are several layers to the judiciary, supreme court to provincial courts and magistrates.
4. Does each Act apply to all citizens of that country?
Law no. 29542 identifies beneficiaries, exceptions and the requirements that one should have to be protected by the law (see above/below).
Art. 5‚ Beneficiaries: public service persons and officials, and ex public service persons and officials, those who perform services in public entities under whatever mode or regimen of labor contract, whatever citizen that has knowledge of arbitrary or illegal acts.
Law no. 27378, art. 2 defines who benefits from the law — persons that are before or not subject to a preliminary investigation or criminal process, as well as those sentenced for crimes noted in the law. The benefits themselves reach collaborators, investigators, experts, witnesses and those closely related to them that may also be in danger or exposed to risk depending upon the circumstances that the judge will evaluate.
There are no specific laws protecting whistle-blows in the private sector.
ii. Which are the operative provisions (i.e. those provisions that give rise to a cause of action or a criminal sanction)? NB: For this question, please ensure regulations, directives, or any other executive or legislative instrument is included in the response. In the response, each of the operative provisions, as well as any references to definitions of key terms should be included.
iii. What is the history of the legislative regime, has it been recently amended?
The Whistle-blower Protection Law (Law No. 29542) was first presented in 2007, by the Prosecutor and Controller and the Commission for Justice of the Congress of the Republic. It was first to be called the‚Whistle-blower Protection Law‚ but after much debate its name was made more specific to reflect its objective.
1. If so, how was it amended?
Law No. 29542 amended the first article in Law No. 27378, reflecting its more specific objective to combat acts of corruption that occur in the public administration.
2. What is the reform attempting to cure?
Greater particularity of the field that the law covers.
iv. Are there currently any proposals to reform the legislative regime?
1. If so, what are the proposed reforms and what at what stage are they?
c. Parliamentary / Government enquiries and Enforcement Institutions / Bodies that undertake these investigations
i. Who is the main regulatory body of the Relevant Area?
The General Controller of the Republic (Office of the Comptroller General) is meant to receive and evaluate complaints by whistle-blowers. (Law No. 29542, Art. 4) It is an autonomous organization and part of the National System of Control (National Oversight System), whose mission is to ensure the legal and honest handling of the State’s resources. It was created by article 82 of the Supreme Judicial Norm. The Controller’s Office is to handle those cases within its scope of attention or coordinate with other relevant government bodies.
The Comptroller runs the National System for Whistle-blower Attention (?) that is meant to educated, inform and encourage whistle-blowers to make complaints. It provides an outline of those subject to the law, the necessary requirements of a complaint, and the form to make a complaint.
In January 2010, the Commission of the Highest Level for Anti-corruption (Comision de Alto Nivel Anticorupcion) was established (Supreme Decree N. 016-2010-PCM) to promote policies in the fight against corruption in the highest levels of the state. One of its main goals is/was to promote the approval of the whistle-blower protection law.
The Attorney General and the Prosecutor’s Office share responsibilities to ensure protections granted by the various laws/provisions outlined above, as well as the Central Protection Unit and District Unites of Assistance to Victims and Witnesses.
The Inspector General (Attorney General ?) under the National Police Force (PNP) also has a complaint mechanism to which citizens can report criminal offenses and corruption committed by the police. However, this complaint channel is seldom used because of lack of confidence in the Inspector General’s ability to investigate and sanction the crimes committed within the police.
An Ethics Code for Public Servants was created and in its approving decree it is responsible for a protection mechanism for civil servants but there is no evidence that those mechanisms have been designed and implemented everywhere in the public administration.
1. Are they well funded?
Law No. 29555 was approved at the same time as Law No. 29542 and is aimed at strengthening the General Controller’s Office with greater funding and capacity, etc.
2. What is the scope of their regulatory activity?
3. What is their track record?
There has been much criticism regarding a lack of funding necessary to fully enforce protective measures and a lack of training mechanisms for public officials to receive complaints of corruption. There are a number or similar entities to protect different persons throughout legal proceedings, and there seems to be a lack of coordination and training. Nothing more specific — see academic article/criticisms.
Also, see above.
d. Academic commentary
i. Who are the leading academics in each jurisdiction, what is their public and academic profile (please provide a short biography or a link to their CV etc.)?
Dante Mendoza Antonioli — Lawyer at Pena, Lozano, Paura & Aociados Attorneys and Law, Professor and expert in economic Administrative Law; Vice-President of the Asociacion Peruana de Derecho de Comercio Internacional‚ Peruvian Association of International Commercial Law; Secretary of the Free Competion Commission of the Instutito Nacional de Defensa de la Competencia y de Proteccion de la Propiedad Intelectual
Frank Garcia Ascencio‚ Former Academic Director of the Curriculum of Studies of Administrative Law at the University of Lima (Cada-UL)
Lilia Ramirez Varela‚ no real CV found although wrote a really insightful article
ii. Are there any leading commentaries on either legislation, case law, parliamentary enquiries that should be noted from these academics?
- Hay un Real Cambio en La Lucha Contra La Corrupcion en la Administracion Publica? Comentarios preliminares a la Ley de Proteccion al denunciante en el ambito administrativo y de colaboracion eficaz en el ambito penal
- Is there a real change in the fight against corruption in the public administration?
- Ley de proteccion al denunciante: mucho ruido, pocas nueces
- Law to protect whistle-blowers: a lot of noise, little nuts (literal translation — the irony is lost on me)
iii. Do these commentaries support legislative or case law reform? If so, how?
Ascencio and Antonioli found several issues with the language of the law as well as its function and enforcement in practice. First, they believe that the Controller’s Office is not well equipped to handle it’s enforcement; it is already unable to deal with its workload without adding another aspect to its mandate. As such, there is an incentive in limiting the whole-hearted acceptance of complaints and to order acquittals to help its caseload.
They also take issue with the exceptions to the law. (art. 6 Law No. 29542) Part a, in their opinion is too vague, part b is generic and undermines the point of the law‚ to combat corruption in the state. They find parts c and d equally generic.
As for the article protecting a whistle-blower’s job‚ they point out that under many contracts for public work this protection is not very useful since their work contract covers similar protections. If they then make a complaint and are potentially given greater job protection, this may lead to public servants making false complaints to protect their jobs beyond their contract’s protections. Although there are provisions that take away benefits for false claims, etc. there is little oversight. Finally, they make a point of timing with regard to the protections’ affects when one knows of a corrupt act and when they complain of it, being that it may be in the whistle-blower’s interest, depending on their contract to hold information until a more opportune time.
Varela does not believe that the law meets Peruvian citizens’ expectations, that one will feel any safer whistle-blowing under this law and that the state hasn’t necessarily met its international obligations (anti-corruption treaties) to protect whistle-blowers. It is her opinion that the lawmakers were more interested in the form and less in the depth or purpose of a provision of this type. First, she criticizes the law for not being clear that it applies to corruption, and uses terms that refer to acts that should be reported in uncertain terms‚ particularly to lay persons or would-be whistle-blowers.
She explains that with the exception of two benefits outlined in article 8, whistle-blowers who are not associated with the administration are not very well protected. She is also critical of the law’s failure to protect private employees, journalists and private citizens specifically.
She finds the fine for a malicious complaint to be potentially prohibitive or a disincentive to would-be whistle-blowers. Similar to the others she believes the Controller’s duties would be better suited for the Public Defender.