Domestic bribery: legal frameworki Criminal liability
Law No. 30,424, in force as of January 2018, establishes that legal persons may be held criminally liable for bribery crimes – including money laundering and terrorism financing – when they are committed in the name of or on behalf of the legal entity and for its direct or indirect benefit, by:
- shareholders, directors, de facto or de jure administrators, legal representatives, or attorneys-in-fact of the legal entity, including those of its affiliates or subsidiaries; and
- individuals under the authority and control of the persons mentioned above who have committed the crime under their order or authorisation, or because of non-compliance with their duties of supervision, vigilance and control.
Thus, both individuals and legal entities may be held criminally liable for bribery crimes committed as of 1 January 2018.ii Bribery of domestic officials offences
The Peruvian Criminal Code distinguishes between passive and active bribery.
Passive bribery refers to the act of requesting, accepting or receiving donations, promises or any type of advantages, by a public official, to do or refrain from doing an act in violation of his or her obligations, or without violating his or her obligations. This constitutes a crime sanctioned with imprisonment, as well as debarment from participating in public procurement processes.
Active bribery refers to the act of offering, giving or promising a donation, benefit or advantage, to a public official, to cause the public official to do or refrain from doing an act in violation of his or her obligations, or without violating them.
Another offence related to bribery is 'influence peddling'. The Peruvian Criminal Code sanctions the person who has – or alleges to have – the ability to influence on the decision-making of a public official (e.g., for having a bond with the public official) and exchanges this influence for an undue advantage.
It is also important to mention that Article 8 of the Code of Ethics in the Public Function prohibits public officials from obtaining improper benefits or advantages, for themselves or another person, by using their position, authority, real or apparent influence. In this regard, the Peruvian Criminal Code also sanctions public officials who receive bribe payments as follows: proper passive bribery, improper passive bribery, specific passive bribery and illicit enrichment.
The Peruvian Criminal Code also establishes corruption practices, different from 'bribery', as follows:
- Abuse of authority: When a public official uses his or her position or position for private gain.
- Improper payment: When a public official or servant abuses his or her position, and requests improper payments or contributions or emoluments in an amount that exceeds the legal tariff.
- Simple and aggravated collusion: When a public official, directly or indirectly, intervenes in the contracting and acquisition of goods, works or services, concessions or any operation carried out by the state, or agrees with the interested parties to defraud the state or public entity or agency of the state.
The Peruvian Criminal Code has a broad definition of 'public officials'. This definition includes any individual who:
- is a member of the public administrative career;
- either appointed or elected for a political or confidence public position;
- has a labour or contractual relationship of any nature with governmental organisms or entities, including state-owned companies, regardless of the labour regime applicable;
- is an administrator or custodian of assets attached by a court, even if such assets belong to private entities or persons;
- is a member of the military or police forces; or
- performs functions in the name of the state.
Additional laws regulating the Public Administration (e.g., the Code of Ethics in the Public Function, Law No. 30,057 and the Law of Civil Service) contain a definition of 'government official' with a different scope. However, in analysing the alleged commission of a corruption crime, the definition contained in the Peruvian Criminal Code will prevail.iv Impediments for participating in commercial activities
Law No. 27,588 regulates what public officials, directors, holders, senior officials, members of the advisory councils, administrative courts, commissions and other collegiate bodies that fulfil a public function or commission of the state are permitted and prohibited from doing. According to this Law, directors of government-owned companies or government representatives in directories and advisers, officials or servers with specific commissions who, due to the nature of their function or the services they provide, have accessed privileged or relevant information, or whose opinion has been determining in decision making, are prohibited from:
- providing services in private entities in any form;
- accepting paid representations;
- being part of the board of directors;
- acquiring, directly or indirectly, shares from private companies, its subsidiaries or entities that could have economic linkage to them;
- entering into civil or commercial contracts with such entities; and
- intervening as attorneys, advisers, sponsors, experts or arbitrators of individuals in processes that have pending with the same division of the government in which they provide their services, while they hold the position or fulfil the conferred assignment.
These impediments extend up to one year after the cessation or completion of the services provided under any contractual form, whether by resignation, termination or dismissal, expiration of the contract term or contractual resolution.v Gifts, gratuities, travel, meals and entertainment
According to the Peruvian anti-corruption legislation, any payment made in favour of a public official, 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 government agency.
Pursuant to Articles 393 to 401-B of the Peruvian Criminal Code, a gift or hospitality could be considered bribery, depending on the circumstances and time on which it is granted. In this regard, 'concealed bribery' will be considered 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 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 authorisation or award a tender).vi Political contributions
As of November 2017, Law No. 28,094 (the Political Parties Act) prohibits political parties from receiving contributions of any kind from private legal entities, whether national or foreign.vii Sanctions
Public officials can be sanctioned with up to 15 years' imprisonment, depending on the type of bribery committed, and may be subject to secondary penalties, such as removal from office and temporary or definitive prohibition from being elected or appointed for public office. In certain cases, monetary fines could also apply.
Private individuals can be sanctioned with up to eight years' imprisonment, depending on the type of bribery committed, and may be subject to secondary penalties. These secondary penalties include prohibition from carrying on professional or social activity in the exercise or in the context of which the offence was committed and temporary or definitive prohibition from being elected or appointed for public office. In certain cases, a monetary fine could also apply.
If a legal entity is found liable for a bribery crime, the criminal judge can impose these sanctions:
- fines of up to six times the benefit obtained or expected to be obtained with the commission of the crime;
- up to two years' suspension of the entity's activities;
- up to five years' or definitive prohibition from conducting future activities of the same kind or nature as those that were performed to commit, favour or cover up the crime;
- debarment from contracting with the government;
- cancellation of licences, concessions, rights and other administrative authorisations;
- temporary (up to five years) or definitive closure of the company's premises; and
- dissolution of the company.
Having a prevention model or compliance programme by which adequate monitoring and control measures are implemented to prevent crimes or to significantly reduce the risk of their commission has the following benefits:
- Exemption from liability: If a legal entity adopted and implemented, prior to the commission of any of the crimes, a prevention model (appropriate to its nature, risks, needs and characteristics), it may be exempted from liability.
- Mitigation of the sanction: If a legal entity (1) adopted and implemented a prevention model after the commission of a crime and before the start of the oral trial, or (2) proves to have partially implemented the minimum elements of the prevention model, then the fine to be imposed on such legal entity may be reduced.
The minimum elements of prevention models to apply for the exemption of liability are:
- appointment of a person in charge of the prevention functions;
- measures taken to identify, evaluate and mitigate risks to prevent crime;
- implementation of an internal complaint proceedings (e.g., a whistle-blower hotline);
- dissemination and periodic training on the prevention model; and
- ongoing evaluation and monitoring of the prevention model.
Upon request of the Public Prosecutor, the Superintendence of Capital Markets (SMV) will evaluate the suitability of the implementation and functioning of the prevention model. If the SMV report determines that the prevention model is adequate, the Public Prosecutor will order the conclusion of the investigation or proceeding.
The prevention model must include the appointment of a person in charge of the prevention functions (e.g., a compliance officer) by the maximum managing body of the legal person or equivalent. The compliance officer must exercise his functions with autonomy and independence.ix Plea agreements (effective collaboration regime)
Pursuant to Article 472 of the Peruvian Code of Criminal Procedure, the Public Prosecutor's Office is entitled to promote or receive requests for effective collaboration from those subjects who, whether or not they are subject to an investigation or criminal proceedings, are involved in the commission of certain crimes, including bribery of public officials. Originally, this regime was intended for individuals only; however, because of an amendment introduced last year, legal entities may also apply for it.
Thus, in order for a legal entity to have access to an effective collaboration regime, it must have:
- voluntarily abandoned its criminal activities;
- admitted freely and expressly or not contradict the facts in which it has intervened or which are imputed to it. Those facts that are not accepted will not be part of the effective collaboration process, and will abide by the resolution of the corresponding criminal process; and
- presented itself to the Public Prosecutor's Office showing its willingness to provide useful information.
This information must allow, among other aspects, avoiding the continuity, permanence or consummation of a crime, or substantially diminishing the magnitude or consequences of its execution, as well as the prevention or neutralisation actions or damage that could occur. The main purpose of requests for effective collaboration is for the applicant to provide useful information to assist the Public Prosecutor's Office in elucidating the facts, in exchange for the granting of reward benefits, which will be included in the agreement on benefits and collaboration entered into by the applicant and the Public Prosecutor's Office, which is confidential. This agreement is submitted to the judiciary for control and review of legality and, only if no legal violations are detected, will it proceed to approval, acquiring full force.
The benefits that may be obtained from applying to collaborate effectively are:
- exemption from applicable complementary consequences;
- decrease below established minimum parameters;
- remission (substitution) of the complementary consequence;
- other benefits established in the legislation. For example, if the agreement is entered into and approved judicially in the stage of preliminary diligence, this could include a benefit for which the Public Prosecutor's Office promises it will not formalise the preparatory investigation against the collaborator. Similarly, if this were to occur at the preparatory investigation stage, the agreement could exclude the legal entity from the prosecution;
- suspend application of Law No. 30,737, as well as obtain a recategorisation of the legal entity; and
- non-debarment from contracting with the government (see Section IX.i).
The mere fact of invoking the effective collaboration regime does not lead to the automatic granting of reward benefits. Obtaining those benefits would be possible if the information provided is relevant and has been duly corroborated, and if the collaborator has complied with the obligations and commitments assumed in the corresponding agreement on benefits and collaboration.x Commercial bribery
As of September 2018, the Peruvian Criminal Code includes the offence of commercial bribery. This offence occurs when a partner, shareholder, manager, director or any employee of a legal entity accepts, receives or requests a donation, advantage or undue benefit of any nature (for itself or another person) to do or refrain from doing an act in favour of a third party in the acquisition or distribution of goods, in the contracting of commercial services or in commercial relationships. Whoever promises, offers or provides such advantage to the representative or employee of the legal entity also participates in this offence.
Individuals who participate in this offence can be imprisoned for up to four years. Legal entities are not criminally liable for this offence.
Foreign bribery: legal frameworki Criminal liability
As stated in Section II.i, as of 1 January 2018, legal entities may be held criminally liable for bribery crimes, including foreign bribery, when committed in the name of or on behalf of the legal entity and for its direct or indirect benefit. Thus, individuals and legal entities may now be held criminally liable for this offence.ii Bribery of foreign official
Bribery of foreign officials refers to the act of offering, granting or promising, directly or indirectly, an undue donation, promise, advantage or benefit that results in his or her benefit or in the benefit of another person, to a public official of another country or an official of an international public organisation, for the purpose of inducing the foreign public official to do or refrain from any act in violation of his or her lawful duty or without breaching it to obtain or retain business or another undue advantage in the performance of international economic or commercial activities.iii Definition of foreign public official
Peru's Criminal Code does not contain a definition of 'foreign public official'; however, it adopts the definition of the United Nations Convention against Corruption.iv Gifts, gratuities, travel, meals and entertainment
See Section II.v.v Facilitation payments
Peruvian law does not include an exception or defence for facilitation payments in the context of foreign bribery.vi Sanctions
Individuals involved in a foreign bribery offence can be imprisoned for up to eight years.
If the offence was committed of behalf of a legal entity and for its direct or indirect benefit, the legal entity will also be held criminally liable for this offence and the criminal judge would be entitled to impose the sanctions described in Section II.vii.vii Defences
See Section II.viii.viii Plea agreements
See Section II.ix.