Anti-Corruption in Peru

By Teresa Tovar* (Baker McKenzie Peru)

1. Domestic bribery (private to public)

1.1       Legal framework

The Peruvian laws and regulations that establish the principles, guidelines and penalties applicable to bribery of public officials are as follows:

  • Peruvian Criminal Code – Legislative Decree N° 635. Articles 393 to 398
  • Law that regulates the liability of legal entities for the crime of active foreign bribery – Law No. 30424. This will be effective on 1 January 2018.
  • Law that extends the liability of legal entities – Legislative Decree No. 1352. This law will be effective on 1 January 2018.
  • Supreme Decree that defines and establishes the national mandatory policies for state entities – Supreme Decree No. 027-2007-PCM
  • Law that regulates lobbying in the Public Administration – Law No. 28024, and its complementary norm approved by Supreme Decree No. 099-2003-PCM
  • Law of the Ethics Code in the Public Function – Law No. 27815
  • Law of Civil Service – Law N° 30057, and its complementary norm Supreme Decree N° 040-2014-PCM

1.2       Definition of bribery

Peruvian anti-corruption laws distinguish between passive bribery and active bribery.

Passive bribery is the act of requesting, accepting or receiving donations, promises or any type of advantages performed by a public official, to carry out or omit an act in violation of his or her obligations, or without violating his obligations. This constitutes a crime that will be sanctioned with imprisonment, as well as disqualification from future public service.

Active bribery is the act of offering, giving or promising to a public official a donation, promise, benefit or advantage, to persuade him or her to perform or omit acts in violation of his or her obligations, or without violating them.

1.3     Definition of public official

According to the Peruvian Criminal Code, a public official is (Article 425):

(a) any person who is part of the public administrative career;

(b) any person who has been appointed for a political or confidence public position, even if publicly elected;

(c) any person who, regardless of the labour regime applicable, has a labour or contractual relationship of any nature with governmental organisms or entities, including state-owned companies;

(d) an administrator or custodian of assets attached by a court, even if such assets belong to private entities or persons;

(e) a member of the military or police forces

(f) any person who performs functions in the name of the state; or

(g) any other person considered to be a public official pursuant to the Peruvian Constitution or the law.

1.4     Consequences of bribery

According to the Peruvian legal framework, the penalties that could be imposed for committing the conducts aforementioned are as follows:

  • For companies 1

(i) Fines not lower than the double, nor greater than six times the benefit obtained or expected to be obtained with the commission of the crime

(ii) Disqualification in the form of:

(a) temporary (up to two years) suspension to conduct corporate activities

(b) temporary (up to five years) or definitive prohibition to conduct in the future activities of the same kind or nature of those that were performed in order to commit, favour or cover up the crime

(c) definitive prohibition to contract with the government

(iii) Cancellation of licenses, concessions, rights and other administrative authorizations

(iv) Temporary (up to five years) or definitive closure of the premises of the company

(v) Dissolution of the company

  • For private individuals 2

Up to eight years of imprisonment depending on the type of bribery committed, as well as secondary penalties such as prohibition from carrying on the professional or social activity in the exercise or the context of which the offense was committed, and prohibition from being elected or designated for a public office, temporary (for up to 20 years) or definitive3; in certain cases, a monetary fine could also be applied.

  • For public officers 4

Up to 15 years of imprisonment, depending on the type of bribery committed, and secondary penalties such as destitution from office and prohibition from being elected or designated for a public office, temporary (for up to 20 years) or definitive5 ; in certain cases, a monetary fine could also be applied.

1.5       Political contributions

The Political Parties Law (Law No. 28094) states that financial contributions to political parties cannot exceed 60 Tax Units per year (approximately PEN 237,000 or USD 68,000).

Political parties are forbidden from receiving contributions from the following entities:

(a) Any governmental body or state-owned company

(b) Religious institutions

(c) (c) Foreign political parties or foreign governmental agencies, except when the contributions are assigned for education, training and research.

Political candidates are not allowed to personally receive contributions. Any contribution must be made directly to the political party.

1.6       Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)

According to Peruvian anti-corruption legislation, any payment made in favour of a public officer (even if it is a small amount required for a routine activity), a gift or hospitality could be considered as bribery if no prior formal request has been filed and no formal approval has been issued by the corresponding public agency.

Pursuant to Articles 393 to 401-B of the Peruvian Criminal Code, a gift or hospitality could be considered as bribery, depending on the circumstances and time on which it is granted. In this regard, “concealed bribery” will be considered as effective bribery if there is an obvious disproportion between the reason for the gift or hospitality (for example, the birthday of the official) and the value of the gift (for example, a new car).

The courts will also consider the behaviour of the public officials as an element to analyse the commission of “concealed bribery.” This means determining whether – as consequence of the gift or hospitality given – the official performs an act under his or her direct functional competence benefiting the person or company who delivered the gift or hospitality (for example, grant an authorization or award a tender).

2. Domestic bribery (private to private)

2.1       Legal framework

The Peruvian Criminal Code does not sanction the bribery or benefit received from or given to an officer, director or executive of a private company or business entity. Nevertheless, pursuant to Section 3 of Article 425 of the Peruvian Criminal Code, officers, directors or executives of state-owned companies are considered as public officials; therefore, the sanctions mentioned in Section 1.4 are applicable.

Regarding private citizens, the Peruvian Criminal Code does not sanction the bribery or benefit received from or given to a private citizen that: (i) has no relation with public service; (ii) has no relation with state-owned companies; or (iii) is not executing public-related activities (for example, an arbitrator or expert appraiser).

2.2       Definition of private bribery

There is no definition of private bribery under Peruvian laws.

2.3       Consequences of private bribery

As mentioned in Section 2.1, private bribery is not sanctioned under Peruvian laws.

2.4       Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)

N/A

3. Corruption of foreign public officials

3.1       Legal framework

The basic Peruvian laws and regulations that establish the principles, guidelines and penalties applicable to corruption of foreign public officials (from the active and passive standpoint) are the following:

  • United Nations Convention Against Corruption
  • Inter-American Convention Against Corruption
  • The Peruvian Criminal Code (Legislative Decree N° 635) Articles 393-A and 397-A
  • Law that regulates the liability of legal entities for the crime of active foreign bribery – Law No. 30424. This law will be effective on 1 January 2018.
  • Law that extends liability of legal entities – Legislative Decree No. 1352. This law will be effective on 1 January 2018

3.2       Definition of corruption of foreign public officials

The Peruvian Criminal Code also distinguishes between active and passive bribery when it regulates the corruption of foreign public officials.

Passive bribery is the act of requesting, accepting or receiving donations, promises or any type of advantages performed by a foreign public officer or any officer of an international organization, to carry out or omit an act in violation of his or her obligations, or without violating them, in order to obtain or maintain a business or another undue advantage in the development of economic and commercial international activities.

Active bribery is the act of offering, giving or promising to any foreign public officer or any officer of an international organization, a donation, promise, benefit or advantage, to persuade them to perform or omit acts in violation of his or her obligations, or without violating them, in order to obtain or maintain a business or another undue advantage in the development of economic and commercial international activities.

3.3       Definition of foreign public official

Pursuant to Article 2 (b) of the United Nations Convention Against Corruption, a foreign public official is: any person holding a legislative, executive, administrative or judicial office of a foreign country, whether appointed or elected; and any person exercising a public function for a foreign country, including for a public agency or public enterprise.

3.4       Consequences of corruption of foreign public officials

The sanctions described in Section 1.4 are also applicable for the corruption of foreign public officials.

3.5       Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)

Please see Section 1.6.

4. Facilitation payments

In general terms, Peruvian anti-corruption law criminalizes both receiving a bribe (passive bribery) and giving a bribe (active bribery). In this regard, there are no exceptions in relation to the kind of benefit given/received, so facilitation payments are generally not acceptable.

5. Compliance programs

5.1       Value of a compliance program to mitigate/eliminate the criminal liability for legal entities

According to Law 30424 and Legislative Decree No. 1352, a legal entity will not be liable for bribery offenses if it has voluntarily implemented a “Prevention Model” (compliance program) prior to the commission of the offense. If a legal entity implements a Prevention Model after the offense is committed, it will be considered as a mitigating factor.

To that end, the public prosecutor will request to the Superintendence of Capital Markets for a report containing an assessment of whether the compliance program implemented by the legal entity is adequate. If that is the case, the public prosecutor will dismiss the case.

5.2       Absence of a compliance program as a crime

The Peruvian Criminal Code does not recognize the absence of having a compliance program as a crime.

5.3       Elements of compliance program

Law 30424 and Legislative Decree No. 1352 establish the elements that a compliance program6 should have to be considered as a liability exonerator in case of bribery offenses. Those elements are as follows:

  • Appointing a person or body responsible for Internal Prevention Audit
  • Identification, evaluation and mitigation of risks in order to avoid the commission of bribery offenses
  • The implementation of complaint proceedings
  • The dissemination of the prevention model within the organization of the company
  • The performing of periodical training sessions regarding the prevention model
  • Evaluation and continuous monitoring of the prevention model

6. Regulator with jurisdiction to prosecute corruption

The Peruvian legal system does not have a specific and centralized regulator with exclusive responsibilities to prosecute corruption. The National Police Department, the attorney general’s office and the enforcing government agencies such as the Ministry of Justice are entities with this power. In addition, the General Comptroller of the Republic has the faculty to issue dispositions and regulate proceedings against administrative corruption, and pursuant to Law N° 29976, an Anti-Corruption High Level Commission was created in order to oversee governmental anti-corruption efforts and strategies.

 


1 Pursuant to Legislative Decree No. 1352, which will be effective on 1 January 2018.- Back
2 Pursuant to Articles 393 to 401-B of Legislative Decree No. 635, Peruvian Criminal Code. – Back
3 Pursuant to Legislative Decree No. 1243, a person will be permanently prohibited from being elected or designated for a public office if commits the crime while belonging to a criminal organization, and provided that the
benefits from the commission of the crime exceed 15 Tax Units (approximately USD 18,500). –Back

4 Pursuant to Articles 393 to 401-B of Legislative Decree No. 635, Peruvian Criminal Code. – Back
5 Pursuant to Legislative Decree No. 1243, a person will be permanently prohibited from being elected or designated for a public office if he or she
commits the crime while belonging to a criminal organization, and provided that the benefits from the commission of the crime exceed 15 Tax Units (approximately USD 18,500). – Back

6 The regulations are yet to be enacted and would define the characteristics of these elements. –Back


Estudio Echecopar
Av. De la Floresta 497
Piso 5 San Borja
Lima 41, Peru

Teresa Tovar

Teresa Tovar focuses her practice on the areas of antitrust and competition, consumer protection, unfair competition, advertising and promotions, and market access. She regularly represents clients during administrative proceedings before the competition agency and other corresponding Peruvian authorities.

She also advises clients on the application of regulatory framework on public transportation infrastructure and telecommunications. Teresa has also been advising several companies on conducting data privacy and compliance projects.

teresa.tovar@bakermckenzie.com

Tel: +51 1 618 8500 x552