Whistleblower protection and reporting channels in Peru

Law N° 30424 and its Regulations, in force since 2018 and 2019, respectively, regulate the administrative responsibility of legal entities concerning the crimes of generic active bribery, specific active bribery, transnational active bribery, influence peddling, collusion, money laundering. assets, and financing terrorism.

According to said Law, any legal entity, whether state or private, may be administratively liable for any of the aforementioned crimes as long as these have been committed on its behalf and for its benefit. The respective organization may be exempt from liability if, before committing the crime, it implements a Crime Prevention System, which must be in accordance with the elements provided by the Law and its Regulations. One of them refers to the obligation to implement reporting procedures so that staff and third parties can report any attempt, suspicion, or act of a crime.

The law does not require private entities to establish such a system for reporting irregularities, but rather empowers them to establish it if they intend to exempt themselves from administrative responsibility for crimes committed by members of their organization. In other words, the implementation of the law and its regulations is voluntary.

Any company may avail itself of this option to exempt themselves from administrative liability, including any kind of private institution, such as associations, foundations, non-governmental organizations, committees, irregular companies, entities that administer an autonomous patrimony, Peruvian state companies, or mixed economy companies.

There is no legal provision that sanctions a company for failing to implement the law since establishing a whistleblower system is voluntary. However, if an organization does not have a whistleblowing system, it increases the risk of not being able to identify or find out about possible crimes committed by its employees, which generate administrative responsibility for the legal entity. Such responsibility is independent of the criminal responsibility of natural persons who have directly committed the crime under consideration.

Administrative liability may lead to the application of fines, definitive disqualification from contracting with the State, suspension from carrying out any of its activities, prohibition from carrying out future activities of the same kind or nature as those in whose performance the crime has been committed, favored or covered up, cancellation of licences, temporary or permanent closure of premises, confiscation of assets, and dissolution of the company, depending on the seriousness and nature of the facts.

The Law and its Regulations establish several requirements so that the crime prevention system can validly allow the company to be exonerated from administrative liabilities. Regarding the complaints system, the company must consider at least the following:

1. Information channels on irregularities, open and widely disseminated among employees and managers, regardless of the position or function they hold, as well as business partners when appropriate.
2. The channels that may consist of telephone lines, exclusive email mailboxes, online complaint systems, face-to-face reports, or others that the organization considers suitable, which may be managed by it or by a third party.
3. The implementation of disciplinary measures in case of violation of the Prevention System.
4. Protection mechanisms for the whistleblower, ensuring that no employee will be subject to retaliation, discrimination, or any sanction for reports or complaints filed in good faith.
5. An incentive scheme that permits employees to reaffirm the importance of the prevention system, as well as promoting commitment and support for it. For example, the delivery of bonuses, public recognition, among others.
6. Implement a complaints procedure that includes at least the following:
   1. Description, by way of example, of criminal conduct that can be reported.
   2. Identification of the person in charge of the prevention system and their contact information.
   3. Protection for the whistleblower by the organization.
   4. Available whistleblower channel.
   5. Definition and description of the minimum elements a complaint must contain to be considered one.
   6. Definition and description of the mechanism for receiving complaints.
   7. Definition and description of the investigation procedure and the presentation of its results.
7. The suitability of the prevention system is put to the test if the organization is investigated for any of the aforementioned crimes. If this is the case, the prosecutor in charge of the investigation must request technical report from the Superintendency of the Securities Market (SMV), which will analyze whether the implementation and operation of the prevention model are adequate. If the technical report concludes that it is adequate, the prosecutor must file the investigation with corresponding support.

Although the employees do not participate directly in the establishment of the whistleblower system, they are obliged to report any crimes or irregular acts that are known to them. In this regard, the company must implement a Compliance Policy and a Code of Conduct. By virtue of these documents, all members of the organization must pledge not to commit the aforementioned crimes, and to report any irregular practice contrary to the system, such as committing any crime.

The law empowers the company to sanction employees who fail to comply with the established prevention system. In addition, if a prosecutor needs to evaluate the suitability of the model for having initiated an investigation of a probable crime, the SMV must analyze the complaint procedures when preparing the respective technical report required by law. To do this, the company must allow the SMV to interview or take statements from the personnel of its organization.

Although there is no legal provision that specifically establishes such a prohibition, the Law establishes that all information entered into the whistleblower system must be treated with confidentiality and care, especially concerning those persons who conduct the internal investigation.

Furthermore, according to the labour law, any slanderous denunciation made by an employee against his employer may constitute a serious labour misconduct, which justifies his dismissal from employment without payment of compensation, if the denunciation is false. 

According to the Law, the prevention system to be implemented must include conditions of confidentiality, security and protection for whistleblowers. Therefore, the organization must ensure that no employee is subject to retaliation, discrimination or any sanction for reports or complaints filed in good faith.

Legislative Decree 1327 and its Regulations, published in 2017, establish various measures to protect the identity of individuals who report acts of corruption if they are whistleblowers who request that the confidentiality of both their identity and the matter reported be guaranteed.

There is no legal provision that establishes such a prohibition.