Supreme Decree No. 038-2011-PCM Approving the Regulations of Law No. 29542 on Protection of Whistleblowers in the Administrative Sphere and Effective Collaboration in the Penal Sphere

NORMS AND LAWS El Peruano
Lima, Friday, April 22, 2011 441439

That, the State is obliged to orient its actions to defend the interests of consumers against those practices that affect their legitimate interests, as provided in Article VI of the Preliminary Title of the Consumer Protection and Defense Code. In this sense, it corresponds to issue measures that allow one of the most important instruments existing in the national normative framework for consumer defense, such as the Complaints Book, to be implemented in a much shorter period than currently foreseen;

In accordance with the provisions of Law No. 29571 - Consumer Protection and Defense Code;

DECREES:

Article 1st.- Implementation of the Complaints Book
The implementation period of the Complaints Book by all providers covered by the Consumer Protection and Defense Code and this Regulation is fifteen (15) calendar days counted from the date of entry into force of this Supreme Decree.

Article 2nd.- Repeal
Article 10th of the Regulation of the Complaints Book, approved by Supreme Decree No. 011-2011-PCM, is repealed.

Article 3rd.- Countersignature
This Supreme Decree will be countersigned by the President of the Council of Ministers.

Given in the Government House, in Lima, on the twenty-first day of the month of April of the year two thousand eleven.

ALAN GARCÍA PÉREZ
Constitutional President of the Republic

ROSARIO DEL PILAR FERNÁNDEZ FIGUEROA
President of the Council of Ministers and Minister of Justice

631727-1

Supreme Decree approving the Regulation of Law No. 29542, Law on protection of the whistleblower in the administrative sphere and effective collaboration in the penal sphere Supreme Decree No. 038-2011-PCM

THE PRESIDENT OF THE REPUBLIC

CONSIDERING:

That, by Law No. 29542, the Law on protection of the whistleblower in the administrative sphere and effective collaboration in the penal sphere is established, which aims to protect and grant benefits to public officials and servants, or any citizen, who substantiatedly denounce the commission of arbitrary or illegal acts occurring in any public entity that can be investigated or sanctioned administratively;

That, in accordance with the provisions of the Sole Final Provision of the aforementioned device, the Executive Power will issue the corresponding Regulation;

That, by Ministerial Resolution No. 337-2010-PCM, the Working Group in charge of proposing the draft Regulation of Law No. 29542 was constituted;

In accordance with what is established in paragraph 8 of Article 118th of the Political Constitution of Peru and Law No. 29158, Organic Law of the Executive Power;

DECREES:

Article 1.- Approval.
The Regulation of Law No. 29542, Law on protection of the whistleblower in the administrative sphere and effective collaboration in the penal sphere, consisting of three (3) Chapters, twelve (12) Articles and an Annex titled "Form to present a complaint", whose texts form part of this Supreme Decree, is approved.

Article 2.- Implementation Period
The General Comptroller's Office of the Republic will issue the necessary measures for the implementation of what is provided in the Regulation approved by this device, within a maximum period of sixty (60) working days counted from the date of its entry into force.

Article 3rd.- Validity
This Supreme Decree will enter into force the day following its publication in the Official Newspaper "El Peruano".

Article 3rd.- Countersignature.
This Supreme Decree will be countersigned by the President of the Council of Ministers and Minister of Justice and the Minister of Labor and Employment Promotion.

Given in the Government House, in Lima, on the twenty-first day of the month of April of the year two thousand eleven.

ALAN GARCÍA PÉREZ
Constitutional President of the Republic

ROSARIO DEL PILAR FERNÁNDEZ FIGUEROA
President of the Council of Ministers and
Minister of Justice

Manuela García Cochagne
Minister of Labor and Employment Promotion

REGULATION OF THE Law on protection of the whistleblower in the administrative sphere and effective collaboration in the penal sphere

CHAPTER I
GENERAL PROVISIONS

Article 1st.- Object
This Regulation aims to establish the norms and procedures related to protection measures for public officials and servants or any citizen, who substantiatedly denounce the commission of arbitrary or illegal acts occurring in any public entity, which contravene current legal provisions and affect or endanger the function or public service.

Article 2nd.- Definitions
For the application of the provisions of Law No. 29542 - Law on protection of the whistleblower in the administrative sphere and effective collaboration in the penal sphere, and of this Regulation, the following definitions will be taken into account:

Law
Law No. 29542 - Law on protection of the whistleblower in the administrative sphere and effective collaboration in the penal sphere.

Public Official or Servant
Anyone who provides services in the entities of the Public Administration, at any hierarchical level, as appointed, contracted, designated, trusted, or elected; regardless of the legal regime of the entity or the labor or contracting regime to which they are subject.

Arbitrary Acts
An arbitrary act is configured when a public servant or official, consciously and voluntarily, performs or omits acts, without the existence of objective and reasonable justification.

Illegal Acts
An illegal act is configured when, by action or omission, the public servant or official contravenes current regulations.

Whistleblower.- Is that person who, having filed a complaint with the General Comptroller's Office of the Republic, meets the requirements established in Article 7th of the Law.

Accused.- Is anyone who provides services in the entities of the Public Administration, at any hierarchical level, as appointed, contracted, designated, trusted, or elected; regardless of the legal regime of the entity or the labor or contracting regime to which they are subject and who is the object of a complaint. This definition also extends to former public officials or former public servants.

Accomplice.-
Is anyone who provides services in the entities of the Public Administration at any hierarchical level, as appointed, contracted, designated, trusted, or elected; regardless of the legal regime of the entity or the labor or contracting regime to which they are subject, who provides assistance to the accused for the commission of an arbitrary or illegal act.

NORMS AND LAWS El Peruano 441440 Lima, Friday, April 22, 2011

Article 3rd.- Scope of Application
The protection established in the Law reaches any whistleblower who presents a substantiated complaint noting the commission of arbitrary or illegal acts, occurring in any public entity that contravene current legal provisions and affect or endanger the function or public service.

Article 4th.- Competence
The General Comptroller's Office of the Republic, at the national level, receives and evaluates complaints, regarding the scope of competence of the National Control System.

In the case of complaints that must be attended to by another body, the General Comptroller's Office of the Republic informs the whistleblower and refers them to the competent entity, when appropriate.

CHAPTER II
ON THE COMPLAINT

Article 5th.- Presentation of the complaint
The complaint is formulated in writing and can be presented in person, by postal or electronic mail, or other means, before the General Comptroller's Office of the Republic at the national level, processed in accordance with the provisions issued by this entity.

Article 6th.- Requirements of the complaint.
For the purposes of its proper processing, any complaint filed must meet the following requirements:

a) Full names, address, and, if applicable, telephone number and email address of the whistleblower, accompanied by a copy of the respective identity document. The complaint must not be anonymous;

b) The acts subject to complaint must be exposed in a detailed and coherent manner, including the identification of participants in the complained acts, indicating the information or attaching documentation or other evidence elements that allow their evaluation, and in case their validity is determined, verification will begin; The acts object of the complaint must not constitute matters, or be subject to controversy, under the constitutional and/or legal competence of other State bodies. Among these are considered facts included in pending cases or investigations before the Judiciary, Constitutional Tribunal, or other competent public institutions; ongoing disciplinary processes; labor claims; administrative procedures for claims and complaints regarding processing costs, due to deficient public service attention and/or transgressions in external execution procedures of citizenship; as well as those related to requirements or challenges by suppliers that do not substantiate the existence of economic harm to the State in acquisition and contracting processes;

c) Relevant evidence is attached in simple copy; or the corresponding evidence and its characteristics or location will be indicated to access it;

d) The commitment of the whistleblower to remain at the disposal of the General Comptroller's Office of the Republic, in order to provide clarifications or additional available information as appropriate;

e) Place and date; and,

f) Signature and fingerprint, as appropriate.

Non-compliance with any of these requirements can be remedied within a period of ten (10) working days counted from the receipt of the request formulated by the General Comptroller's Office of the Republic. If not remedied within the indicated period, the complaint is archived.

Article 7th.- Format of the complaint.
Complaints can be presented using the model of the Complaint Form which as an Annex forms part of the Supreme Decree approving this Regulation and is available on the website of the General Comptroller's Office of the Republic (www.contraloria.gob.pe) or by communication addressed to the General Comptroller of the Republic.

Article 8th.- Procedure.
The evaluation and verification procedure of complaints under the competence of the General Comptroller's Office of the Republic is carried out in accordance with the provisions issued by this entity.

Article 9th.- Malicious Complaint
Whoever complains to the General Comptroller's Office of the Republic about an arbitrary or illegal act knowing that it has not been committed, or who simulates evidence or indications of its commission that could serve as a reason for an administrative investigation process, will be sanctioned by this entity with a fine of no more than five (5) Tax Units (UIT) without prejudice to civil and penal responsibilities that may arise.

To impose the respective sanction, the following criteria will be taken into account:

a) Antecedents of the whistleblower; b) Circumstances in which the fact that motivated the filing of the complaint occurred; c) Gravity of the alleged imputations; d) Falsity of the evidence or indications used to substantiate the alleged imputations; e) The damage or potential harm caused to the alleged whistleblower; f) The intentional nature of the action or omission constituting the imputation; g) Direct or indirect benefit obtained by the whistleblower; h) Conduct of the whistleblower in the investigation procedure; i) Implementation of reparative or corrective measures for the remediation of the damage caused or the alleged potential harm; and, j) Voluntary declaration regarding the falsity of the alleged imputation.

In these cases, once the investigation is archived, the General Comptroller's Office of the Republic forwards the records to the Public Ministry for the corresponding legal purposes.

In the case of a malicious complaint filed by a citizen, the affected party may exercise their right in accordance with the law.

CHAPTER III
PROTECTION MEASURES

Article 10th.- Protection measures and benefits
Once the complaint is qualified by the corresponding instance, verifying compliance with the requirements of Article 7th of this Regulation, the following protection measures and benefits are granted to the whistleblower:

a) An identification code, and it is requested that they confirm the postal or electronic address to which communications will be sent.
The identity data appearing in the complaint file will be replaced by the assigned code, establishing by the General Comptroller's Office of the Republic the mechanisms for the custody of said information.
If as a result of the evaluation the complaint is disproven, this will be communicated to the whistleblower and the protection established by law ceases.

b) The prohibition of dismissal, firing, or removal established in paragraph b) of Article 8th of the Law implies the impossibility of separating the public official or servant whistleblower from service as a consequence of the complaint filed in accordance with the Law and this Regulation, but does not enervate the faculty to sanction them disciplinarily for the commission of faults and infractions provided for in the labor or contracting regime applicable to them.

c) The Entity will not be obliged to renew the temporary contract concluded with the whistleblower, provided that such decision is based on the Entity's lack of need for the continuity of the provision of said services and not as a consequence of the complaint filed, in the latter case the whistleblower may file an appeal against the imposed measure before the Civil Service Tribunal.

d) The public official or servant dismissed, removed, or dismissed from their position as a consequence of the complaint filed, may file an appeal against the imposed measure, its resolution corresponding to the Civil Service Tribunal within the scope of its competence in accordance with the rules of the matter.

NORMS AND LAWS El Peruano
Lima, Friday, April 22, 2011 441441

For the effect referred to in the previous paragraph, the appellant must prove that they are within the scope of protection of the Law, presenting directly to the Civil Service Tribunal the corresponding evidentiary means.

In the resolution of the appeal, the Civil Service Tribunal will value the circumstances that motivated the dismissal, removal, or dismissal in order to determine if there was a causal relationship between said measure and the complaint filed.

e) When the whistleblower worker, regardless of the labor regime to which they belong, is the object of reprisals that materialize in any of the acts of hostility included in Article 30th of the Single Text of the Law on Labor Productivity and Competitiveness, approved by Supreme Decree No. 003-97-TR, the following procedure will be followed:

i. Brings to the knowledge of the General Comptroller's Office of the Republic the type of act of hostility they are being subjected to, as well as the identification of the alleged responsible parties, attaching, if applicable, the corresponding evidentiary means.

ii. The General Comptroller's Office of the Republic, after the relevant evaluation, forwards the referred documentation to the Ministry of Labor and Employment Promotion or, at the regional level, to the Regional Directorates of Labor and Employment Promotion of the Regional Governments or the one acting in its place, within the maximum period of five (05) working days of the request for the granting of the requested protection measure.

iii. The Inspector Authority carries out the inspection act within five (5) working days of receipt of the request by the competent instance.

iv. The Inspector Authority forwards to the General Comptroller's Office of the Republic, the minutes or reports containing the result of the inspection act, within the maximum period of five (05) working days of its completion.

v. The General Comptroller's Office of the Republic receives the respective documentation and, if applicable, transfers it to the competent instances for the determination of administrative responsibilities and imposition of the corresponding sanctions for the serious fault incurred.

f) The whistleblower subject to the labor regime of the private activity who is the object of acts of hostility as a consequence of the complaint filed, may opt for any of the measures established in Article 35th of the Single Text of the Law on Labor Productivity and Competitiveness, approved by Supreme Decree No. 003-97-TR; without prejudice to bringing such acts to the knowledge of the General Comptroller's Office of the Republic.

g) In cases where the whistleblower is an accomplice of the complained acts, a gradual reduction of the administrative sanction will be granted, according to the degree of participation in the arbitrary or illegal acts, and taking into account the labor or contracting regime applicable by virtue of the position or function performed.

In these cases, the sanction will be reduced taking into account the following criteria:

i. The harm caused to the public administration.
ii. The impact on the function or public service.
iii. The nature of the functions performed as well as the position and hierarchy of the accomplice.
iv. The benefit obtained by the accomplice.
v. Absence of administrative sanction.

h) In cases where the complained acts constitute an infringement provided for in the administrative norm and is sanctioned with a fine, the whistleblower obtains as a reward up to fifty percent (50%) of what was effectively collected by the entity, which will be delivered directly to the whistleblower. At the time of determining the percentage of the fine deliverable in the procedures promoted by the whistleblower, the following criteria must be evaluated, at a minimum:

i. Documentation and previous information provided by the whistleblower that contribute to the investigation of the complained acts or provide significant evidence for the determination of the infringement subject of the complaint.
ii. Collaboration of the whistleblower demonstrated throughout the investigation procedure carried out at the request of the competent authority.
iii. Relevance of the complained fact, its economic impact and the magnitude of the harms that may have affected or are susceptible to affect the function or public service.

The General Comptroller's Office of the Republic will communicate to the entity the degree of participation and importance of the information provided by the whistleblower, based on the criteria indicated in the preceding paragraphs, for the purposes of determining the percentage of the reward.

Article 11th.- Commitment to Dissemination
The Head of each entity must comply with the obligations included in Article 11th of the Law, making available to the General Secretariat of the entity or whoever acts in their place the dissemination of the scope and benefits granted by the Law, in accordance with the Organization and Functions Regulation.

The General Secretary or whoever acts in their place will be in charge of complying with the dissemination of the Law and this Regulation. The omission of said dissemination will be subject to administrative disciplinary sanction or functional administrative responsibility.

Article 12th.- Indications of Commission of Crimes
If as a consequence of the complaint the General Comptroller's Office of the Republic concludes that there are indications of the commission of some criminal act, it will report it to the Public Ministry for the purpose of initiating the fiscal investigation.

In this case, the whistleblower may adhere to Law No. 27378, Law that Establishes Benefits for Effective Collaboration in the Sphere of Organized Crime, provided that they are related to the commission of the crimes established in Article 1st of the referred Law and are or are not subject to preliminary investigation or a penal process, or are sentenced for said crimes. In addition, for the protection measures established in Law No. 27378 to be applicable, it will be necessary that the Prosecutor and, if applicable, when there is an open process, the Judge rationally appreciates a serious danger to the person, freedom, or goods of whoever seeks to rely on them, their spouse or cohabitant, or their ascendants, descendants, or siblings.

ANNEX
FORM TO PRESENT A COMPLAINT

DATE: //__

1. NAMES AND SURNAMES OF THE APPELLANT:
   ........................................................................................................
   ID DOC: ............................
   ADDRESS: .....................................................................
   TEL: ........................................
   EMAIL: .......................................................................................

2. ENTITY UNDER CONTROL INCLUDED IN
   THE FACTS:
   ........................................................................................................
   Dist / Prov / Dept. .............................................................

3. NAME AND POSITION OF THE OFFICIALS AND/OR
   SERVANTS INCLUDED IN THE FACTS:
   ....................................................................................................
   ....................................................................................................
   ....................................................................................................

4. HAS THE COMPLAINT BEEN PRESENTED BEFORE ANOTHER
   INSTANCE OR ON A PREVIOUS DATE?
   YES (No. and date of File) NO a. Congress of the Republic b. Presidency of the Republic
   c. Public Ministry
   d. Judiciary e. Ombudsman's Office f. Institutional Control Body g. General Comptroller's Office h. Permanent/Special Commission of Disciplinary Administrative Processes of the sector.
   i. Others (specify)
   ....................................................................................................
   Specify its status:
   ....................................................................................................

NORMS AND LAWS El Peruano 441442 Lima, Friday, April 22, 2011

5. PRESUMED IRREGULARITIES:
   FACT No. 1:
   ....................................................................................................
   ....................................................................................................
   Date on which the facts occurred:
   ....................................................................................................
   If quantifiable, indicate the amount, indicating the source of information:
   ….………………………………….....................................................
   Supporting evidence:
   ....................................................................................................
   ....................................................................................................

FACT No. 2:
....................................................................................................
.........

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