Peru Anti-corruption Guide 2022
1. Is your country a member of the OECD Anti-Bribery Convention?
Yes, since 2018.
2. Is your country a member of any other bilateral or multilateral conventions on anti-corruption?
Yes. Peru is a part of the Inter-American Convention against Corruption, the Beijing Declaration on Fighting Corruption, the United Nations Convention against Corruption, and the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
3. Are there local anti-corruption laws in your country focusing on corporations, not individuals? If yes, what sanctions can be imposed?
Yes. Law N° 30424 establishes sanctions from penalties (ranging between PEN 46,000–PEN 46,000,000/approximately USD 11,000–11,000,000) to the dissolution of the company.
4. Can companies be held liable for acts of corruption under civil or administrative law?
No, only under criminal law. Notwithstanding, there are administrative infractions that could be linked to or resulting from acts of corruption and are sanctioned by the competent authority within the scope of application of its specific legislation (e.g., collusive tenders where public officials are involved).
5. Is corruption of individuals punishable?
Yes, according to Articles 241-A and 241-B and Section IV of Chapter II, Title XVIII of the Peruvian Criminal Code.
6. Are facilitation payments allowed?
They are not allowed because all types of facilitation payments given to a public official are considered bribes under Section IV of Chapter II, Title XVIII of the Peruvian Criminal Code.
7. Is there a legal regulation/maximum limit for accepting or giving gifts, invitations, etc.?
No legal regulation specifies ranges for the value of gifts that can be given or received. However, a guide for government officials establishes referential evaluation criteria for gifts, gratuities, favors, services, donations, loans, recognitions, or any other item of monetary value deemed acceptable under the legal system. This guide is called the "Manual de Principios, Deberes y Prohibiciones Éticas en la Función Pública."
8. Are bribes to foreign government officials prohibited?
Yes, according to Article 397-A of the Peruvian Criminal Code.
9. Does your legislation have any extraterritorial reach?
Yes. Article 397-A of the Peruvian Criminal Code regulates the crime of transnational active bribery (cohecho activo transnacional), which is committed when a bribe is given to a public official of another country to unduly favor the bribe-giver. Likewise, Law N° 30501, published on June 29, 2022, amended Article 2 of the Peruvian Criminal Code. Paragraph 5 now establishes that the principle of extraterritoriality applies for transnational active bribery crimes perpetrated by a Peruvian or the legal representative of a person domiciled in Peru.
10. Is it possible to confiscate assets from the company?
Yes. According to Article 11 of Law N° 30424, the judge, at the request of the Public Prosecutor's Office, may order the confiscation of the instruments, objects, effects, and proceeds from the crime committed if the legal entity is declared responsible.
11. Does your legislation rely on deferred prosecution or non-prosecution agreements or any other type of non-trial resolution for corruption?
No, but we have a procedure called "effective collaboration," where an individual who has committed a serious crime can receive a reduced sentence if they provide relevant information that can help prosecute the main perpetrators of said criminal acts.
12. Can a company be liable for the acts of its intermediaries or third parties?
Yes, if it is detected that the legal entity benefited said acts.
13. Can a parent company be liable for the acts of its subsidiaries?
A parent company is liable whenever natural persons from subsidiaries or affiliates have acted under orders, authorization, or the consent of the parent company.
14. Are there any affirmative defenses or exceptions for those accused of corruption acts?
No. There is no affirmative defense available for legal entities. Individuals, however, may use affirmative defenses available in criminal law.
15. Does your jurisdiction require domestic entities to implement anti-corruption internal programs?
No. The existence of a compliance program is not mandatory for legal entities, but it can mitigate sanctions imposed on the legal entity.
16. Is having a compliance program a defense or mitigating factor, while reviewing sanctions?
If the legal entity implemented an effective compliance program before the crime was committed, they would be exempt from criminal liability and therefore not receive sanctions in criminal proceedings. Likewise, if the legal person implements a compliance program after the crime is committed but before the oral stage of the trial begins, or if the legal entity has partially implemented a compliance program, this would also mitigate criminal liability.
17. Could the cooperation with the authorities or an internal investigation be a defense or mitigating factor?
Yes. Law N° 30424 establishes that a legal entity that decisively collaborates by submitting objective and substantial evidence of the criminal during the investigation stage is a mitigating factor. For natural persons, "effective collaboration" is also an option.
18. Is there any publicly available guideline issued by the authorities in charge of enforcing anti-corruption laws? For example, manuals on compliance programs, leniency agreements, etc. If so, please provide the link.
Yes. The Superintendency of the Securities Market approved the "Lineamientos para el Modelo de Prevención," a reference guide for legal entities who decide to implement a prevention model and seek to know the current legal framework on criminal responsibility in Peru. The guide is available through the following link: https://www.smv.gob.pe/Frm_VerPublicacion?data=CB40EA16A126C02E853FDF265FAB20EE801E26CADD664496F6992FB198B6
There is another guide available, called the "Guía de Programas de Cumplimiento de las Normas de Libre Competencia," through the following link:
Contributors
Payet, Rey, Cauvi, Perez Abogados
Juan Diego Ugaz, juh@prcp.com.pe
Erick Palao, epv@prcp.com.pe