Resolution SBS No. 1132-2015: Standard Regulating the Procedure for Handling Requests to Lift Bank Secrecy

Los Laureles Nº 214 - Lima 27 - Perú Telf.: (511) 6309000 Fax: (511) 6309239 Lima, February 12, 2015 Resolution S.B.S.
No. 1132-2015
The Superintendent of Banking, Insurance and
Private Pension Fund Administrators

CONSIDERING:

That, as established in Article 140 of Law No. 26702, General Law of the Financial System and of the Insurance System and Organic Law of the Superintendence of Banking and Insurance (General Law), bank secrecy implies the prohibition for companies in the financial system (companies), as well as their directors and employees, from supplying any information regarding passive operations with their clients, unless there is written authorization from them or it concerns the circumstances set forth in Articles 142 and 143 of the same law;

That, pursuant to Article 143 of the General Law, bank secrecy does not apply and may be lifted when the information is requested by Judges and Courts in the regular exercise of their functions and with specific reference to a determined process, in which the client of the company to whom the request is addressed is a party; by the Attorney General of the Nation, in cases of presumption of illicit enrichment of officials and public servants or of those who administer or have administered State resources or of organisms to which the State provides economic support; likewise, by the Attorney General of the Nation or the government of a country with which a convention has been concluded to combat, repress and sanction the illicit trafficking of drugs or terrorism, or generally regarding suspicious movements of money laundering; by the President of an Investigative Commission of the Legislative Power, with the agreement of the Commission in question and in relation to facts that compromise the public interest, by the Superintendent of the Superintendence of Banking, Insurance and Private Pension Fund Administrators (Superintendence), in the exercise of its supervisory functions, as well as within the framework of the powers established in Article 6 of the Law for the Strengthening of the Supervision of the Securities Market, Law No. 29782;

That, the aforementioned Article 143 establishes that only in the event that the lifting of bank secrecy is requested by the Attorney General of the Nation; the Government or Attorney General of the Nation of a country and by the President of an Investigative Commission of the Legislative Power, according to what is mentioned in the preceding consideration, the request for information is channeled through the Superintendence; from which it is inferred that the Judicial Power may request such measure, directly to the companies;

That, likewise, Article 7 of the Regulations for Savings and Credit Cooperatives not authorized to operate with public resources, approved by SBS Resolution No. 540-99 and its modifying norms, establishes that it is applicable to cooperatives, insofar as pertinent, the norms on bank secrecy established by Articles 140 to 143 of the General Law;

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That, according to the National Plan to Fight Money Laundering and the Financing of Terrorism, approved by Supreme Decree No. 057-2011-PCM, one of the objectives of strengthening the criminal repression of the crime of money laundering and the financing of terrorism is to ensure that authorized authorities access information protected by bank secrecy in a timely manner;

That, likewise, the Tenth Final Complementary Provision of Law No. 30096, Law on Cybercrimes, establishes that the Superintendence will establish the scale of fines -attending to the characteristics, complexity and circumstances of applicable cases- for companies under its supervision that fail to comply with the obligation provided for in numeral 5 of Article 235 of the Criminal Procedure Code, approved by Legislative Decree No. 957, by which it is required -by judicial order- for companies or entities to provide information related to the lifting of bank secrecy within a maximum period of 30 business days, unless otherwise provided by the judge;

That, in this context, it is necessary to establish the provisions that regulate the procedure for the handling of requests for the lifting of bank secrecy made by authorized authorities, to companies that collect public resources under the scope of regulation and/or supervision of the Superintendence, whether they channel them through the Superintendence or not, as stated in Article 143 of the General Law;

Having the approval of the Financial Intelligence Unit of Peru, the Assistant Superintendent of Banking and Microfinance and the Assistant Superintendent of Legal Advice;

In exercise of the powers conferred by Law No. 29038 and Law No. 26702, in accordance with Law No. 27693, its modifying and regulatory norms;

RESOLVES:

Article First.- Approve the Standard that regulates the procedure for the handling of requests for the lifting of bank secrecy, which is transcribed below:

STANDARD THAT REGULATES THE PROCEDURE FOR THE HANDLING OF REQUESTS FOR THE LIFTING OF BANK SECRECY

Article 1st.- Scope
This standard is applicable to all companies regulated and/or supervised by the Superintendence that collect public resources and are established in letter A of Article 16 of the General Law, to the National Bank and to savings and credit cooperatives not authorized to operate with public resources.

Article 2nd.- Objective
To establish the procedure that companies must follow, in order to comply with the timely attention of requests for the lifting of bank secrecy that are made by competent authorities, channeled or not through the Superintendence, in the exercise of their functions.

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Article 3rd.- Definitions
a) Competent authorities: the authorities included in Article 143 of the General Law, such as the Attorney General of the Nation; the Attorney General of the Nation or the government of a country with which a convention has been concluded to combat, repress and sanction the illicit trafficking of drugs, terrorism or money laundering; the judges and courts of the Judicial Power; the President of an Investigative Commission of the Legislative Power, with the agreement of the Commission in question and in relation to facts that compromise the public interest; the Comptroller General of the Republic regarding officials and public servants who administer or manage State funds or of organisms supported by it, at the three levels of government, within the framework of a control action; the Superintendent in the exercise of its functions and for the purposes of financial intelligence; and those carried out pursuant to Article 6 of the Law for the Strengthening of the Supervision of the Securities Market, Law No. 29782. 1 b) Communication: The resolution of the Attorney General of the Nation or the Judicial Power, the letter of the Investigative Commission of the Legislative Power, the official communication of the Government of the country, letter of the Comptroller General of the Republic. 2 c) Companies: companies established in letter A of Article 16 of the General Law that collect public resources and the National Bank, as well as savings and credit cooperatives not authorized to operate with public resources. d) General Law: Law No. 26702, General Law of the Financial System and of the Insurance System and Organic Law of the Superintendence of Banking and Insurance and its modifying norms. e) Sanctions Regulation: Sanctions Regulation applicable to companies supervised by the Superintendence, approved by SBS Resolution No. 816-2005 and its modifying or substituting norms. f) Superintendence: Superintendence of Banking, Insurance and Private Pension Fund Administrators.

Article 4th.- Reception and processing of requests for the lifting of bank secrecy and
sending to companies 3
Requests for the lifting of bank secrecy, according to what is established in Article 143 of the General Law, are presented through a written communication duly substantiated, to which the documentation supporting the request is attached.
The communication from the competent authority must specifically indicate:
a) The full name or trade name of natural or legal persons, national or foreign; and/or the account number, regarding which the lifting of bank secrecy is requested. The type and number of identity document or RUC; nationality and/or country of issuance of the identity document of foreign persons will be indicated, in cases where this information is available. 1 Literal modified by SBS Resolution No. 01076-2024 effective from March 27, 2024. 2 Literal modified by SBS Resolution No. 01076-2024 effective from March 27, 2024. 3 Article modified by SBS Resolution No. 3880-2016 of July 14, 2016.

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b) The information requested, the crime investigated and the identification of the case, investigation or process for which it is requested; as well as the specific period of the passive operations regarding which information is required and the updated address to which the requested information will be sent. When the request is channeled through the Superintendence, it sends the requirement to the corresponding companies, within a period not exceeding seven (7) business days.

Article 5th.- Deadline to comply with requests for the lifting of bank secrecy
In all cases, companies must provide the requested information, with a reserved character, directly to the competent authorities that requested the lifting of bank secrecy, within a period not exceeding thirty (30) business days, unless otherwise provided by the judge, public authority or specific norm, which are counted from the day following the date of receipt of the request for the lifting of bank secrecy channeled by the Superintendence or made directly by the Judicial Power. For the cases established within the framework of numeral 5 of Article 235 of the Criminal Procedure Code and its modifications, the omission in the delivery of the information requested by the judge, as well as the partial or late delivery of the corresponding information or the minutes and documents, constitute infractions sanctioned with a fine, according to what is established in the Sanctions Regulation, without prejudice to the other responsibilities established by Law. The provisions of this article are also applicable to requests made by the Superintendent of Banking, Insurance and AFP, pursuant to numeral 5 of Article 143 of the General Law and Article 6 of the Law for the Strengthening of the Supervision of the Securities Market, Law No. 29782.

Article 6th.- Responsibility and designation of the official responsible for handling requests for the lifting of bank secrecy
Companies are responsible for complying within the established period, with the attention of requests for the lifting of bank secrecy made by competent authorities. For this purpose, they must designate, at minimum, one main official and one alternate, responsible for handling the requirements for the lifting of bank secrecy. The designation of said officials must be carried out by the General Manager. Companies communicate to the Superintendence, the Judicial Power and the Comptroller General of the Republic, the name, position, telephone, email or other contact data of the officials -main and alternate- responsible for handling the requirements for the lifting of bank secrecy. Any change in the designation and/or contact data must be communicated to the Superintendence, the Judicial Power and the Comptroller General of the Republic, as applicable, within three (3) business days of occurrence. 4

Article 7th.- Reserved character of the information
4 Modified by SBS Resolution No. 02648-2024 of August 1, 2024, effective from August 2, 2024.

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According to what is established in the General Law, persons and authorities who become aware of the information on passive operations resulting from the lifting of bank secrecy, as well as officials and employees of the companies, are obliged to keep the strictest and complete confidentiality regarding said information and cannot transfer or communicate it to third parties, nor can they use it for purposes other than those requested. Failure to comply with the provisions of this article will give rise to the corresponding administrative and criminal responsibilities.

Article 8.- Form and channels for sending information requested by the Superintendent for the purposes of financial intelligence and by the Comptroller General of the Republic within the framework of a control action 5
8.1. Requests for the lifting of bank secrecy made by UIF Peru will be sent through the Communications Module of the UIF Peru PLAFT Portal and addressed to the compliance officer.
In the case of requests made by the Comptroller General of the Republic, they will be sent through the computer application established for this purpose by the Comptroller General of the Republic and addressed to the responsible officials (main and alternate) designated pursuant to Article 6 of this standard. 6
8.2. Companies must send the requested information, with a confidential character, within the maximum period established in this standard, according to the format of Annex No. I "Format for providing information protected by bank secrecy" and its respective summary table, which must be completed according to the instructions described in Annex No. II "Instructions for completing the Format for providing information protected by bank secrecy". The sending of this information is done directly, in Excel file, through the Communications Module of the aforementioned PLAFT Portal or through the computer application established for this purpose by the Comptroller General of the Republic, as applicable, which guarantees its confidentiality and allows the authority to send confirmation of its receipt.

FINAL PROVISIONS
First.- The Superintendence, in coordination with competent authorities, may establish formats containing the minimum information that said authorities must send, for the handling of requests for the lifting of bank secrecy that are to be sent to companies.
Second.- The Superintendence may automate the process of receiving and/or sending requests for the lifting of bank secrecy that are channeled through this entity, in which case, the characteristics, minimum information fields and instructions required to comply with it will be established and communicated by the Superintendence.

TRANSITIONAL PROVISION
5 Article modified by SBS Resolution No. 01076-2024 effective from March 27, 2024.
6 Modified by SBS Resolution No. 02648-2024 of August 1, 2024, effective from August 2, 2024.

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Sole.- Within a maximum period of seven (7) calendar days, counted from the day following the entry into force of this resolution, companies must communicate to the Superintendence the information corresponding to the officials, main and alternate, responsible for handling requests for the lifting of bank secrecy in the company, as established in Article 6 of this standard.

Article Second.- This resolution enters into force on the day following its publication in the Official Gazette El Peruano.
Register, communicate and publish.

MILA GUILLÉN RISPA
Superintendent of Banking, Insurance and
Private Pension Fund Administrators (a.i.)