Legislative Decree No. 1327

El Peruano / Friday, January 6, 2017 LEGAL NORMS 29 LEGISLATIVE DECREE No. 1327 THE PRESIDENT OF THE REPUBLIC WHEREAS:
That, through Law No. 30506, "Law that delegates to the Executive Branch the Power to legislate on matters of economic reactivation and formalization, citizen security, fight against corruption, water and sanitation, and reorganization of Petroperú S.A.", the Congress of the Republic has delegated to the Executive Branch the power to legislate on matters of the fight against corruption, for a term of ninety (90) calendar days; That, in this sense, paragraph b) of item 3 of Article 2 of the aforementioned legal device, establishes approving measures oriented towards the fight against corruption coming from any person, including measures to facilitate the participation of citizens through mechanisms that allow the timely and effective receipt of complaints about acts of corruption, mechanisms to incentivize probity in the exercise of law, measures to strengthen transparency in access to public positions, as well as measures to restrict the possibility that persons convicted of crimes against public administration work as civil servants; That, it is necessary to strengthen the reporting of corruption crimes by establishing protection and incentive mechanisms, suitable for fostering citizen participation in a secure manner; In accordance with what is established in paragraph b) of item 3 of Article 2 of Law No. 30506 and Article 104 of the Political Constitution of Peru; With the approving vote of the Council of Ministers; Subject to reporting to the Congress of the Republic; Has issued the following Legislative Decree:

LEGISLATIVE DECREE THAT ESTABLISHES PROTECTION MEASURES FOR THE WHISTLEBLOWER OF ACTS OF CORRUPTION AND SANCTIONS BAD FAITH REPORTS

Article 1.- Object
This Legislative Decree aims to establish procedures and mechanisms to facilitate and incentivize good faith reports of acts of corruption and to sanction bad faith reports.

Article 2.- Purpose
This Legislative Decree aims to foster and facilitate that any person who becomes aware of a corruption occurrence in the Public Administration can report it.

Article 3.- Scope of Application
3.1 This Legislative Decree applies to all entities described in Article I of the Preliminary Title of Law No. 27444, General Administrative Procedure Law, with the exception of those contained in its item 8, which carry out the pertinent actions to implement the provisions of this Legislative Decree.
3.2 The protection measures established in this Legislative Decree do not affect the competencies of the Comptroller General of the Republic, in accordance with Law No. 29542, Law on protection of the whistleblower in the administrative scope and effective collaboration in the penal scope, as the governing body of the National Control System.

Article 4.- Definitions
4.1 Act of corruption.- Describes that conduct or fact that accounts for the abuse of public power by a civil servant holding it, with the purpose of obtaining for themselves or third parties an undue benefit.
4.2 Whistleblower.- Is any natural or legal person who, individually or collectively, brings to the attention of the institution, through its competent organs, an act of corruption. The whistleblower is a third-party collaborator of the Public Administration and the Justice System. They are not a party to the administrative disciplinary procedure, functional administrative procedure, or penal process that may result from their report. It does not constitute an impediment to report the nationality, sex, minority status, residence, legal incapacity of the whistleblower, their internment in a social readaptation or detention center, school, hospital, clinic, or, in general, any special relationship of subjection or factual or legal dependence on a third person.
4.3 Reported Person.- Is any civil servant of the entity of the Public Administration, regardless of the labor regime, contractual, or any other linkage with the State, to whom the commission of an act of corruption susceptible of being investigated in the administrative and/or penal sphere is attributed in the report.
4.4 Report.- Is that verbal, written, or virtual communication, individual or collective, that accounts for an act of corruption susceptible of being investigated in the administrative and/or penal sphere. Its processing is free. The attention of the report constitutes in the administrative sphere an act of internal administration. Its presentation in the penal sphere does not involve the participation of the person reporting as a procedural party, except regarding the classification or archiving of the report, as provided in Article 334 of the Penal Procedure Code, approved by Legislative Decree No. 957.
4.5 Bad faith report.- The following situations constitute bad faith reports:
4.5.1 Report on already reported facts: whenever the whistleblower, knowingly, files a report before the same instance on the same facts and reported subjects regarding which they have made a previous or simultaneous report.
4.5.2 Repeated report: when the whistleblower, knowingly, files a new report before the same instance on the same facts and subjects on which a final decision has already been issued.
4.5.3 Report lacking foundation: when facts contrary to reality are alleged, knowing this situation; or when there is no correspondence between what is imputed and the indications or evidence supporting it.
4.5.4 False report: when the report is made, knowing that the reported corruption acts have not been committed or when evidence or indications of the commission of an act of corruption are simulated.
4.6 Protection measures.- Set of measures arranged by the competent administrative authority, oriented to protect the exercise of personal or labor rights of whistleblowers and witnesses of acts of corruption, insofar as applicable. Its application will depend on the circumstances and vulnerability conditions evaluated by the competent authority.
4.7 Protected Person.- Is the whistleblower or witness of an act of corruption to whom protection measures have been granted with the purpose of guaranteeing the exercise of their personal or labor rights.

Article 5.- Implementation of protection measures in the administrative scope
The implementation of the protection measures contained in this Legislative Decree in the administrative scope is the responsibility of the highest administrative authority of the entity.

Article 6.- Principle of Confidentiality
6.1 The absolute confidentiality of information regarding the identity of the whistleblower, when requested by them, the subject matter of the report, and the actions derived from it is guaranteed. Any infringement due to negligence to this confidentiality is sanctioned as a disciplinary administrative offense under the regime applicable.
6.2 The confidentiality of information regarding the identity of the reported person is guaranteed until the issuance of the sanctioning resolution that ends the procedure.

Article 7.- Content of the Report
7.1 The report presented to the entity must contain as a minimum the following requirements:

1. Full name and surname, address, and, if applicable, telephone number and email of the whistleblower, referencing the respective national identity document number. If the report is presented by a legal person, in addition to the corporate name, the number identifying it in the Unique Taxpayer Registry and the data of the person representing it must be recorded.
2. The acts subject to the report must be exposed in a detailed and coherent manner, including the identification of the authors of the reported facts, if known. The report may be accompanied by documentation, original or copy, that supports it.
3. Manifestation of the whistleblower's commitment to remain at the disposal of the entity, in order to provide any necessary clarifications or provide more information about the irregularities that are the subject of the report.
4. Place, date, signature or fingerprint, in case of not knowing how to sign or being prevented from doing so.
   7.2 If there is no documentation accrediting the commission of the act of corruption, the unit or department that has the same is indicated, in order for it to be incorporated into the report file.
   7.3 In the case of an anonymous report, the requirement indicated in item 1 of numeral 7.1 is not required.

Article 8.- Report Procedure
The report procedure has as a minimum the following characteristics:

1. The report presented to the entity must be registered by replacing the identity of the whistleblower with a coded cipher. The entity proceeds to review if the report fulfills the content indicated in Article 7. If not, the whistleblower is asked to remedy the omission. If this is not complied with, the entity assumes that the whistleblower has withdrawn their request, and with it, any eventual request for protection measures; which generates the archiving of the request. Nevertheless, the entity may evaluate the information provided up to that moment and, if it has foundation, materiality, or interest for itself, it must transfer it to the competent instances.
2. If the report contains sufficient elements of materiality and foundation that merit the start of the administrative procedure in charge of the entity, it is forwarded to the head of the Technical Secretariat in charge of pre-qualifying the alleged administrative offenses or whoever exercises that function, in accordance with the corresponding regulations.
3. If the facts subject to the report concern matters or controversies subject to the competence of other State organisms, the whistleblower is informed of this and the documentation provided is sent to the competent entity, safeguarding its confidentiality.

Article 9.- Protection Measures for the Whistleblower
The following are protection measures for the whistleblower:
9.1 Identity Confidentiality.- The whistleblower has the right to the confidentiality of their identity, which will be dispensed by the entity, which assigns them a special numerical code for procedures. The protection of the identity can be maintained, even, after the conclusion of the investigation and sanction processes of the offense against public ethics reported.
The protection referred to in the preceding paragraph extends to the information provided by the whistleblower.
9.2 Labor Protection Measures.- In addition to the confidentiality of the identity, the competent administrative authority may grant the necessary and adequate labor protection measures.
9.3 Other Protection Measures.- The report presented by a bidder or contractor cannot prejudice their position as a bidder in the contracting process in which they participate or their position in the contractual relationship established with the entity. Nor can it prejudice them in future processes in which they participate. If the report is directed against civil servants who have in charge the contracting process in which the whistleblower participates, the entity will arrange, prior to evaluation, their removal from it, in accordance with the conditions established in the Regulations of this Legislative Decree. The filing of a report will not serve in any case to paralyze a State contracting process.

Article 10.- Duration of Protection Measures
The granting of protection measures extends as long as the danger that motivates them lasts, even after the procedures that lead to the sanction of the offense. They may also be extended to persons other than the whistleblower, if the circumstances of the case justify it.

Article 11.- Execution of Protection Measures
11.1 The protection measures granted by the entity are executed by the Human Resources Office or the one acting in its place, prior to evaluation of its operational viability, except the one referred to the confidentiality of the identity.
11.2 The actions carried out by the instructing organ that investigates the report that gives merit to the start of an administrative disciplinary procedure must not negatively impact or disturb the enjoyment of the protection measures granted to the whistleblower.

Article 12.- Variation of Protection Measures
12.1 Prior to the request of the protected person or by facts that merit it, the entity or the granting authority distinct from it, pronounces motivatedly on the procedency to modify or suspend all or some of the protection measures arranged by virtue of the report filed.
12.2 The authors and participants of acts of corruption who decide to report them may be benefited with some of the protection measures, without this meaning the exculpation for the conduct harmful to public ethics. Their timely and pertinent collaboration means the reduction of the administrative sanction to be imposed.

Article 13.- Obligations of Protected Persons
13.1 Protected persons must comply with certain obligations oriented to guarantee the safeguard of the administrative procedure initiated as a consequence of the report presented as follows:

1. Cooperate in the diligences that are necessary, at the call of the entity, without this putting the protected identity at risk.
2. Maintain adequate behavior that preserves the effectiveness of the protection measures granted, ensuring their own integrity and security.
3. Safeguard the confidentiality of the operations and conditions that occur with the protection measures, even when they cease.
4. Others that the Regulations establish.
   13.2 The non-compliance with the obligations to which the whistleblower is subject entails the suspension of the protection measures granted, without prejudice to the actions of a civil, penal, and/or administrative nature that may arise.
   13.3 Facts of danger or vulnerability caused by imprudent conduct attributable to protected persons are not imputable to the civil servants involved in their granting and do not generate any type of responsibility for them.

Article 14.- Bad Faith Report
Whistleblowers and witnesses who report acts of corruption in bad faith, in accordance with the situations established in Article 4.5 of this Legislative Decree, are immediately excluded from the protection measures granted, without prejudice to the responsibilities of a civil, penal, and administrative nature that may arise.

Article 15.- Administrative Incentive
15.1 Natural or legal persons who, during the processing of an administrative procedure before a public entity, detect an act of corruption and report it to the competent authority, are benefited with the refund of the administrative costs that generated said procedure.
15.2 For the application of the aforementioned benefit, the following conditions must be met:

1. The report presented and the information provided by the whistleblower must have given rise to the formalization of the preliminary investigation by the Public Ministry, in accordance with Article 336 of the Penal Procedure Code.
2. The whistleblower, previously, must have complied with the requirements established by Law to access the respective license, authorization, permit, or other administrative enabling title.
   15.3 The administrative authority before which the administrative procedure was processed maintains all the faculties provided in numeral 1.16 of Article IV of the Preliminary Title and in Article 32 of Law No. 27444, General Administrative Procedure Law, and in the other pertinent norms of our legal order.
   15.4 Civil servants who have the condition of investigated or accused in the investigations or penal processes that are initiated as a result of the information provided by the whistleblower, are impeded from deciding, carrying out, or intervening in any way in the subsequent supervision provided in Article 32 of Law No. 27444, General Administrative Procedure Law, as well as from accessing any information linked to the procedures initiated by the whistleblower before the public entity aggrieved by the irregularities that are the subject of the report.

COMPLEMENTARY FINAL PROVISIONS
First.- Regulation
The Regulations of this Legislative Decree are approved by Supreme Decree countersigned by the President of the Council of Ministers and the Minister of Justice and Human Rights, within a term of sixty (60) days counted from the day following its publication in the official newspaper El Peruano.

Second.- Adaptation
Entities of the Executive Branch adapt their norms, directives, and procedures to ensure the free presentation and processing of a report on acts of corruption, under the terms established in this norm.

Third.- Dissemination
All public entities are obliged to disseminate among their civil servants, as well as to the citizenry in general, the scope of this Legislative Decree, as well as the specific mechanisms approved by the entity for its application.

Fourth.- Alternative Channels
Persons who decide to report an act of corruption have, in addition to the channel that this norm institutes, the others that the legal order provides in attention to the administrative or penal nature that the act entails.

Fifth.- On collaborators of entities of the Public Administration This Legislative Decree is applicable to collaborators of the Public Administration in the capacity of reported persons insofar as it is pertinent.

Sixth.- Financing
The implementation of what is established in this Legislative Decree is financed from the institutional budgets of the involved entities without demanding additional resources from the Public Treasury.

TRANSITORY COMPLEMENTARY PROVISION
SINGLE.- On the units responsible for arranging the protection measures It is understood that the responsibility to manage and arrange the protection measures established in this Legislative Decree falls on the organic unit that, on the date of publication of this norm, assumes tasks of promotion of integrity and institutional ethics in the entities. In its absence, this responsibility falls on the highest administrative authority of the entity.

MODIFYING COMPLEMENTARY PROVISION
SINGLE.- Modification of Article 13 of Law No. 29542
Article 13 of Law No. 29542, Law on protection of the whistleblower in the administrative scope and effective collaboration in the penal scope, is modified in the following terms:

"Article 13.- Protection Measures and Reduction of Administrative Sanction The authors or co-participants of the arbitrary and illegal facts described in Article 3, may be benefited with some of the protection measures instituted by this Law.
Their timely and pertinent collaboration in the administrative procedure that is filed to find responsibilities of the same order, must mean the reduction of the administrative sanction to be imposed on them, without prejudice to the benefits derived from their effective collaboration in the processing of the penal process, in accordance with the regulations on the matter."

THEREFORE:
I order it to be published and complied with, giving account to the Congress of the Republic.
Given in the Government House, in Lima, on the fifth day of the month of January of the year two thousand seventeen.

PEDRO PABLO KUCZYNSKI GODARD
President of the Republic

FERNANDO ZAVALA LOMBARDI
President of the Council of Ministers

María Soledad Pérez Tello
Minister of Justice and Human Rights

1471010-6