Supreme Decree No. 002-2020-JUS modifying the Regulations of Legislative Decree No. 1327 establishing protection measures for whistleblowers of corruption and sanctioning bad faith complaints

JUSTICE AND HUMAN RIGHTS Supreme Decree modifying the Regulations of Legislative Decree No. 1327 which establishes protection measures for whistleblowers of acts of corruption and sanctions bad faith complaints SUPREME DECREE N° 002-2020-JUS THE PRESIDENT OF THE REPUBLIC

CONSIDERING: That, through Legislative Decree N° 1327 - Legislative Decree establishing protection measures for whistleblowers of acts of corruption and sanctioning bad faith complaints, procedures and mechanisms are established to facilitate and incentivize good faith complaints about acts of corruption, as well as to sanction bad faith complaints; That, with Supreme Decree N° 010-2017-JUS, the Regulations of Legislative Decree N° 1327, Legislative Decree establishing protection measures for whistleblowers of acts of corruption and sanctioning bad faith complaints, were approved; in accordance with the First Complementary Final Provision of Legislative Decree N° 1327; That, numeral 7.3 of article 7 of Legislative Decree N° 1327, provides that in the case of an anonymous complaint, the requirement indicated in subsection 1 of numeral 7.1, that is, the full name and surname, address and, if applicable, telephone number and email of the whistleblower, nor the respective national identity document number, is not required; That, the Third Complementary Final Provision of the Regulations of Legislative Decree N° 1327, establishes that to facilitate the presentation of anonymous complaints, referred to in numeral 7.3 of article 7 of Legislative Decree N° 1327; public entities implement IT tools, according to their availability of resources and technology; That, although public entities have developed IT platforms to register anonymous complaints, it is verified that these are not fully articulated with the State Interoperability Platform, which is a technological tool that allows the automated and orderly exchange of data by public entities; and, they are also not standardized around homogeneous classification criteria that allow their systematization and traceability; That, through Supreme Decree N° 092-2017-PCM, the National Policy on Integrity and Fight against Corruption was approved, which regulates provisions to have transparent and integral institutions that practice and promote probity in the public sphere, in the business sector and in civil society, and guarantee the effective prevention and sanction of corruption at national, regional and local levels, with the active participation of citizens; That, the objectives of the National Policy on Integrity and Fight against Corruption are organized into three axes, among them, the one called “Identification and Risk Management” (Axis N° 2), which considers as Specific Objective 2.1 “Strengthen the mechanism for managing complaints for alleged acts of corruption”, and establishes as a goal that the country has an adequate system of administrative complaints that allows the flow of information from citizens and commits administrators in the fight against corruption within the framework of a culture of citizen complaint; That, in the same vein, through Supreme Decree N° 044-2018-PCM, the National Plan for Integrity and Fight against Corruption 2018-2021 was approved, which establishes as Action N° 30 “Implement an integrated complaint mechanism in public administration, ensuring the protection of whistleblowers of alleged acts of corruption”; within the framework of Specific Objective N° 2.1 “Strengthen the mechanism for managing complaints for alleged acts of corruption”; That, by virtue of these provisions, numeral 9 of article 4 of Supreme Decree N° 042-2018-PCM - Supreme Decree establishing measures to strengthen public integrity and fight against corruption; establishes the reporting of complaints, as a mechanism and instrument that promotes public integrity, for the implementation of internal control and the promotion of actions for the prevention and fight against corruption; That, the referred norm defines complaint reporting mechanisms as expeditious means and processes through which complaints are addressed in situations that could result in acts of corruption, especially in sensitive matters linked to acts of high-level officials or directors; guaranteeing confidentiality within the framework of the relevant norms; That, citizen complaint is part of the right of petition and, consequently, it is incumbent upon public administration to make all technical and legal efforts in order to optimize not only the processing of complaints in the administrative sphere, but also to generate mechanisms for their better administration, interoperability, systematization and traceability through an IT platform; That, to that extent, and by virtue of the aforementioned norms, it is necessary to modify the Regulations of Legislative Decree N° 1327 which establishes protection measures for whistleblowers of acts of corruption and sanctions bad faith complaints, in order to create an integrated and interoperable platform that allows guaranteeing the correct management of complaints for acts of corruption, ensuring the protection of whistleblowers; In accordance with the provisions of numeral 8 of article 118 of the Political Constitution of Peru; Law N° 29158, Organic Law of the Executive Power; the Regulations of Organization and Functions of the Presidency of the Council of Ministers, approved by Supreme Decree N° 022-2017-PCM; Legislative Decree N° 1327, Legislative Decree establishing protection measures for whistleblowers of acts of corruption and sanctioning bad faith complaints; and, the Regulations of Legislative Decree N° 1327 establishing protection measures for whistleblowers of acts of corruption and sanctioning bad faith complaints, approved by Supreme Decree N° 010-2017-JUS; DECREES: Article 1.- Modification of articles 2, 3 and 4 of the Regulations of Legislative Decree N° 1327 Articles 2, 3 and 4 of the Regulations of Legislative Decree N° 1327 - Legislative Decree establishing protection measures for whistleblowers of acts of corruption and sanctioning bad faith complaints, approved by Supreme Decree N° 010-2017-JUS; are modified in the following terms: “Article 2. Office of Institutional Integrity 2.1. The Office of Institutional Integrity or the one that acts as such is the organic unit that regularly assumes the tasks of promoting institutional integrity and ethics in public entities referred to in numeral 3.1 of article 3 of Legislative Decree 1327, which has the following general functions:

1. Receive, transfer, monitor and systematize complaints for acts of corruption; as well as requests for protection measures for whistleblowers of acts of corruption, as appropriate.

2. Evaluate the facts and documents that support complaints about acts of corruption; and, in this sense, order the application of protection measures for whistleblowers or witnesses, as appropriate.

3. Evaluate whether the complaint presented is malicious and order the corresponding measures.

4. Transfer the complaint and the documents that support it to the Technical Secretariat in charge of pre-qualifying alleged disciplinary offenses of the entity or whoever exercises such function in accordance with the corresponding regulations, to the Institutional Control Body or to the Public Prosecutor, if warranted.

5. Coordinate with the Human Resources Office or the one that acts as such of the entity to which the content of staff training in matters related to probity in the exercise of public function belongs.

6. Participate and lead the process that leads to the approval of integrity and anti-corruption actions of its entity, as well as monitor their compliance.

7. Support the highest administrative authority in the implementation of the Internal Control System; as well as the organs and organic units in the identification and management of corruption risks.

8. Any others that may be ordered by express norm. 2.2 In those entities that do not have an organic unit that assumes the tasks of promoting institutional integrity and ethics, the functions indicated in numeral 2.1 are assumed by the highest administrative authority of the entity, who may delegate such functions to the General Human Resources Office or the one that acts as such. 2.3 Entities ensure that personnel in charge of the functions mentioned in numeral 2.1 have been designated through a public merit competition. 2.4. In accordance with the provisions of the Sole Complementary Transitory Provision of Legislative Decree N° 1327, the fulfillment of the functions established in numeral 2.1 does not oblige entities to create an organ or organic unit for such purposes, nor for the fulfillment of functions related to the promotion of institutional integrity and ethics.” “Article 3.- Principle of Confidentiality 3.1 In application of the principle of confidentiality, no aspect related to the complaint and the request for whistleblower protection may be made public, through a request for access to public information, as it is confidential in the terms of the classification of the relevant law. 3.2 Servers who intervene at any stage of the processing of the evaluation of the complaint that contains, where appropriate, a request for protection measures, are prohibited from disclosing any aspect related to these, particularly, the identity of the whistleblower or witnesses. The confidentiality of identity is presumed, unless expressly stated otherwise. 3.3 The identity of the whistleblower is also protected from servers who intervene in the eventual administrative disciplinary procedure that is initiated as a consequence of the complaints submitted by the Office of Institutional Integrity or the highest administrative authority of the entity, as appropriate. This implies that the Technical Secretariat of the Instructing Bodies of the Disciplinary Procedure, as well as the authorities of the administrative disciplinary procedure or those who exercise such functions in accordance with the corresponding regulations; the Institutional Control Body and the Public Prosecutor's Office of the entity proceed ex officio regarding the protection of the whistleblower's identity, regardless of whether the facts and/or conduct generate sufficient conviction regarding the occurrence of a disciplinary offense. 3.4 Neither the head of the entity, nor any other civil servant of the same, are authorized to request information about the identity of a whistleblower or the details of the complaint or the protection request made. If this occurs, the head of the Office of Institutional Integrity or the highest administrative authority, as appropriate, must formally refuse to access the request and bring this fact to the attention of the Head of the Institutional Control Body; or, if this depends budgetarily on the entity, to the Head of the Regional Comptroller's Office, so that they proceed according to their attributions. 3.5 Entities must establish, through internal directives, the procedural forms for requests for whistleblower protection and complaints to be submitted directly to the Office of Institutional Integrity or the highest administrative authority of the entity, in order to guarantee the principle of confidentiality.” “Article 4.- Complaint Procedure 4.1 The encrypted code provided in subsection 1 of article 8 of Legislative Decree N° 1327, is provided through an IT application exclusively managed by the highest administrative authority of the entity or the Head of the Office of Institutional Integrity of the entity, as appropriate; and exceptionally, the head of the entity, in the case described in numeral 4.8. 4.2 If the only protection measure requested by the whistleblower is identity reservation, the highest administrative authority of the entity or the Head of the Office of Institutional Integrity of the entity, as the case may be, provides the encrypted code, immediately remitting the complaint to the Technical Secretariat in charge of pre-qualifying alleged disciplinary offenses or whoever exercises such function, in accordance with the corresponding regulations. 4.3 Upon receipt of the complaint attached to the request for whistleblower protection, a simple copy of said complaint is sent to the Institutional Control Body of the entity, as well as to its Public Prosecutor's Office, so that they act according to their competencies, unless the complaint does not comply with the provisions of subsection 2 of numeral 7.1 of article 7 of the Legislative Decree. 4.4 The highest administrative authority of the entity or the Office of Institutional Integrity of the entity, as appropriate, reviews the complaint to verify that it contains the requirements of article 7 of Legislative Decree N° 1327, within a maximum period of two (2) working days. In case the complaint does not comply with the established requirements, the whistleblower is requested to correct the omission, within three (3) working days following notification of the request for correction. 4.5 In case of archiving of the request for a protection measure referred to in subsection 1 of article 8 of Legislative Decree N° 1327, the Office of Institutional Integrity or the highest administrative authority of the entity, in the same act of archiving the request, must send the complaint to the Technical Secretariat in charge of pre-qualifying alleged disciplinary offenses or whoever exercises such function, in accordance with the corresponding regulations, when the omission refers to the requirements indicated in subsections 1, 3 and 4 of numeral 7.1 of article 7 of Legislative Decree N° 1327. 4.6 The verification of compliance with the requirement of subsection 2 of numeral 7.1 of article 7 of the Legislative Decree is carried out through the verification of the existence of a narration of facts, as well as the reference to the name or position of the person reported. In no case does it imply an evaluation or qualification of the complaint. In case the omission of this requirement is noted, the Office of Institutional Integrity or the highest administrative authority of the entity may transfer the complaint to the Technical Secretariat in charge of pre-qualifying alleged disciplinary offenses or whoever exercises such function in accordance with the corresponding regulations, in the same act of archiving. 4.7 Once compliance with all the requirements of article 7 of Legislative Decree N° 1327 has been verified, the Office of Institutional Integrity or the highest administrative authority of the entity evaluates the protection requirement taking into account the guidelines provided in article 7, within a maximum period of five (05) working days. 4.8 Once the period provided in the previous subsection has elapsed, the Office of Institutional Integrity or the highest administrative authority of the entity refers the complaint to the Technical Secretariat in charge of pre-qualifying alleged disciplinary offenses or whoever exercises such function, in accordance with the corresponding regulations. 4.9 If the complaint involves any of the members of the Office of Institutional Integrity of the entity or the office of the highest administrative authority that has the competence to receive complaints for acts of corruption and grant protection measures, the complaint is referred to the head of the entity. In this case, this authority must grant the encrypted code and maintain the confidentiality of the complaint, applying the corresponding procedure for granting protection measures to the whistleblower. 4.10 Whistleblower protection measures may also be requested during the processing of an administrative disciplinary procedure. In this case, the Technical Secretariat of said procedure or whoever exercises such function, in accordance with the corresponding regulations, sends the request for qualification to the Office of Institutional Integrity of the entity or the office of the highest administrative authority, according to their competencies, applying the procedure described in this article as far as compatible.” Article 2.- Incorporation of article 13 to the Regulations of Legislative Decree N° 1327 Article 13 is incorporated into the Regulations of Legislative Decree N° 1327 - Legislative Decree establishing protection measures for whistleblowers of acts of corruption and sanctioning bad faith complaints, approved by Supreme Decree N° 010-2017-JUS; in the following terms: “Article 13.- Single Digital Platform for Citizen Complaints Public entities are responsible for guaranteeing the interoperability of complaint procedures for acts of corruption and whistleblower protection measures, through the State Interoperability Platform. For this purpose, the Presidency of the Council of Ministers, through the Secretariat of Digital Government, develops the Single Digital Platform for Citizen Complaints which constitutes the sole digital contact channel of the Peruvian State with citizens for such complaints.” Article 3.- Financing The implementation of this norm is financed from the institutional budget of the entities involved, without demanding additional resources from the Public Treasury. Article 4.- Endorsement This supreme decree is endorsed by the President of the Council of Ministers and the Minister of Justice and Human Rights. COMPLEMENTARY FINAL PROVISIONS First.- Complementary norms By ministerial resolution of the Presidency of the Council of Ministers, the complementary norms that are necessary for the application of the Regulations of Legislative Decree N° 1327 will be issued. Second.- Implementation of integrated and interoperable platform Within a maximum period of thirty (30) working days from the publication of this supreme decree, the Pres

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