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Peru
Sandra Orihuela
Orihuela Abogados | Attorneys at Law
1 International anti-corruption conventions
To which international anti-corruption conventions is your country a
signatory?
Peru has signed and ratied the following conventions:
Inter-American Convention against Corruption, ratied in 1997;
United Nations Convention against Corruption, ratied in
2004; and
United Nations Convention against Transnational Organized
Crime and its Protocols (Trafcking in Persons, Smuggling of
Migrants and Trafcking of Firearms), ratied in 2002.
Peru intends to become a party to the OECD Convention on Com-
bating Bribery of Foreign Public Ofcials in International Business
Transactions (the OECD Convention), and for such purpose it has
been amending its legislation in order to satisfy the requirements
thereunder.
2 Foreign and domestic bribery laws
Identify and describe your national laws and regulations prohibiting
bribery of foreign public officials (foreign bribery laws) and domestic
public officials (domestic bribery laws).
Perus Criminal Code (the Criminal Code) provides that bribery
of foreign and domestic public ofcials or servants is a crime. The
Criminal Code was approved by Legislative Decree No. 635 in April
1991, and regulates these crimes in Title XVIII, Crimes against the
Public Administration.
Domestic bribery
Crimes against the public administration include crimes that are
perpetrated with the participation of public ofcials or servants (see
question 24), whether they take any action towards requesting a
benet, or passively accept or receive a benet. Crimes of corruption
of public ofcials or servants are divided into passive bribery, where
the offender is a public ofcial or servant, and active bribery where
the offender is not a public ofcial or servant but a civilian instead.
Active bribery of domestic public ofcials or servants is regulated in
article 397 of the Criminal Code, and the bribery of certain domes-
tic ofcials (such as a public prosecutor, arbitrator or magistrate) is
regulated in article 398.
Foreign bribery
In January 2009, Law No. 29316 was enacted to incorporate and
regulate various provisions of different Peruvian laws, in order to be
able to implement the PeruUnited States Trade Promotion Agree-
ment (in force since February 2009). As a result, article 397-A incor-
porated into the Criminal Code the offence of transnational active
bribery, regulating bribery of public ofcials or servants from other
states, as well as ofcials of international public organisations.
Foreign bribery
3 Legal framework
Describe the elements of the law prohibiting bribery of a foreign public
official.
Pursuant to article 397-A of the Criminal Code, bribery of a foreign
public ofcial or servant by a civilian is a crime. The elements of this
crime are as follows:
a person who
by any means, offers, gives, or promises directly or indirectly
to a public ofcial or servant from a different state or to an
international public organisation ofcial
a donation, promise, advantage or wrongful benet
that results in ones own or a third persons benet
so that the public ofcial or servant performs or omits to per-
form actions inherent to his position or duties, in violation of his
obligations or without defaulting on his obligations
to obtain or to retain business or another wrongful advan-
tage in connection with international economic or commercial
activities.
4 Definition of a foreign public official
How does your law define a foreign public official?
The Criminal Code does not provide a denition of foreign public
ofcials or servants or international public organisation ofcials.
However, article 19.10 of the anti-corruption section of the Peru
United States Trade Promotion Agreement denes foreign ofcials,
public functions and public ofcials as follows:
foreign ofcial: any person holding a legislative, administrative,
or judicial ofce of a foreign country, at any level of govern-
ment, whether appointed or elected; any person exercising a
public function for a foreign country at any level of government,
including for a public agency or public enterprise; and any of-
cial or agent of a public international organisation.
public function: any temporary or permanent, paid or unpaid
activity, performed by an individual on behalf of a party (ie, Peru
or the United States) or in the service of a party, such as procure-
ment, at the central level of government.
public ofcial: any ofcial or employee of a party at the central
level of government, whether appointed or elected.
According to Perus Constitution, treaties or agreements entered into
by the state that are in force become part of Perus national laws.
5 Travel and entertainment restrictions
To what extent do your anti-bribery laws restrict providing foreign
officials with gifts, travel expenses, meals or entertainment?
There is no specic provision in Perus Criminal Code regarding gifts,
travel expenses, meals or entertainment. However, article 397-A of
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the Criminal Code prohibits the offering, giving or promising of a
donation, promise, advantage or wrongful benet in general, to a
foreign public ofcial or servant or to an international public organi-
sation ofcial; to the extent that they are offered, given or promised
so that the public ofcial or servant performs or omits to perform
actions inherent to his position or duties, in violation of his obliga-
tions or without defaulting on his obligations, in order to obtain or
retain a business or another wrongful advantage in connection with
international economic or commercial activities.
6 Facilitating payments
Do the laws and regulations permit facilitating or grease payments?
There is no specic provision in Perus Criminal Code regarding facil-
itating payments. However the Criminal Code generally prohibits the
offering, giving or promising of a donation, promise, advantage or
wrongful benet; hence there is no exception permitting facilitating
payments.
7 Payments through intermediaries or third parties
In what circumstances do the laws prohibit payments through
intermediaries or third parties to foreign public officials?
Article 397-A of Perus Criminal Code penalises the direct or indirect
bribery of foreign public ofcials or servants, thereby prohibiting
bribery through intermediaries or third parties.
8 Individual and corporate liability
Can both individuals and companies be held liable for bribery of a
foreign official?
No. Under Peruvian laws, only individuals may be criminally liable
for committing a crime, including the crime of bribery of a foreign
ofcial. Companies are not subject to criminal liability; nonetheless
they may be subject to certain administrative sanctions and civil lia-
bility in connection with bribery-related actions, as the case may be.
9 Civil and criminal enforcement
Is there civil and criminal enforcement of your countrys foreign
bribery laws?
Yes. Perus Criminal Code provides for criminal and civil enforcement
for the bribery of a foreign ofcial applicable to individuals alone, by
establishing specic bribery-related sanctions such as imprisonment
and nes (article 397-A) and, as a general rule, the payment of civil
damages to be determined by the criminal judge in connection with
any crime (article 92) and the forfeiture of assets and prots related
to criminal activity (article 102).
Although companies are not subject to criminal liability, they
may be considered a third-party obligor and thus pay civil damages
arising from a crime. In addition, companies may be subject to cer-
tain administrative sanctions when a crime is perpetrated carrying
out the corporate mission of a corporation or using its organisation
to help or conceal criminal activity, provided that an individual con-
nected to the corporation is found guilty of the crime. In these cases,
the criminal judge may apply any or all of the following accessory
administrative sanctions:
temporary or permanent closing of the corporate headquarters;
dissolution and liquidation;
suspension of corporate activities for a term no longer than two
years; and
temporary or permanent prohibition to carry out the corporate
mission considered to have helped or concealed a criminal
activity (article 105-A).
In addition, both individuals and companies may be held liable in
civil courts for negligence or tort actions led by a plaintiff seeking
monetary compensation for damage caused in connection with
bribery-related crimes, as the case may be. Only the person suffering
the relevant damage has standing to le a claim involving said actions.
10 Agency enforcement
What government agencies enforce the foreign bribery laws and
regulations?
All criminal offences, including bribery of foreign public ofcers, are
subject to criminal governmental enforcement by the Prosecutors
Ofce, an autonomous constitutional organism that is independ-
ent from the judiciary. In addition, in 2010 the Presidency of the
Council of Ministers created a high-level Anti-Corruption Commis-
sion (approved by Supreme Decree No. 016-2010-PCM) in order to
develop anti-bribery policies, coordinate national efforts to prevent
and investigate bribery crimes and promote Perus participation in
international anti-bribery forums before the UN, OECD, OAS and
others. Members of different public and private institutions and civil
society comprise the Anti-Corruption Commission.
11 Leniency
Is there a mechanism for companies to disclose violations in
exchange for lesser penalties?
There is no disclosure mechanism applicable to companies in
exchange for lesser penalties.
12 Dispute resolution
Can enforcement matters be resolved through plea agreements,
settlement agreements, prosecutorial discretion or similar means
without a trial?
All criminal offences, including bribery of a foreign ofcial, are subject
to a criminal trial and cannot be resolved by way of a settlement or
similar arrangement.
13 Patterns in enforcement
Describe any recent shifts in the patterns of enforcement of the
foreign bribery rules.
In November 2013, article 397-A of the Criminal Code was amended
to incorporate nes and sanctions applicable to individuals violating
foreign bribery rules (see question 9). This amendment was approved
in order to fully comply with the United StatesPeru Trade Promo-
tion Agreement, the bilateral free-trade agreement aiming to elimi-
nate obstacles to trade and foster private investment between both
countries.
14 Prosecution of foreign companies
In what circumstances can foreign companies be prosecuted for
foreign bribery?
Peruvian law does not specically recognise corporate criminal liabil-
ity. Nevertheless, a draft bill to hold companies criminally liable for
bribery crimes was approved by the Anti-Corruption Commission in
December 2013 and is awaiting further approval by the Presidency
of the Council of Ministers. If approved by the latter, the draft bill
would then be presented to Congress for its review and eventual
approval or dismissal.
15 Sanctions
What are the sanctions for individuals and companies violating the
foreign bribery rules?
Individuals are subject to no less than ve and no more than eight years
of imprisonment and from 365 to 730 penalty days for violating
foreign bribery rules.
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Sanctions imposed as nes or penalties force the convicted felon
to pay to the state an amount of money which is expressed in terms
of penalty days. The amount of a penalty day is the average daily
income of the convicted felon and is determined pursuant to his
assets, rents, remuneration, level of expenditure and other external
signs of wealth.
See question 9 for the sanctions applicable to companies.
16 Recent decisions and investigations
Identify and summarise recent landmark decisions or investigations
involving foreign bribery.
Bribery of foreign ofcials was introduced as a crime in the Criminal
Code enacted in January 2009, as a result of the implementation of
the Trade Promotion Agreement between Peru and the United States.
Due to its recent introduction, there are no recent landmark deci-
sions involving foreign bribery. In 2011, however, Peruvian authori-
ties investigated an alleged violation of the foreign bribery rules by
Alexis Humala, brother of Perus President Ollanta Humala, during
a trip to Russia that year.
Russias Minister of Foreign Affairs, Sergey Lavrov, received
Alexis Humala, in his capacity as special representative of then
President-elect Ollanta Humala, on 5 July 2011. It is alleged that
Alexis Humala not only exchanged views on general issues relating to
the bilateral relationship and the international agenda between Russia
and Peru, but also negotiated some form of strategic alliance with
the Russian government involving gas projects in Peru with Russian
energy companies.
Ollanta Humalas political party issued an ofcial statement
denying sending Alexis Humala as a special representative to
negotiate business with the Russians on behalf of the president-elect
or the Peruvian government. Following investigations by the District
Attorneys Ofce into the matter, the claim was closed in December
2012.
Financial record keeping
17 Laws and regulations
What legal rules require accurate corporate books and records,
effective internal company controls, periodic financial statements or
external auditing?
Up until 2013, only those companies that were listed on the Lima
Stock Exchange and were supervised by the regulatory body of
the stock exchange (that is, the Superintendencia del Mercado de
Valores) were required to keep books and records in compliance
with the International Financial Reporting Standards (IFRS). During
2013 this requirement was broadened to include all those companies
reporting incomes of over 114 million nuevos soles, and for 2014
book-keeping standards according to the IFRS will also be required
for companies reporting incomes of over 57 million nuevos soles. For
2015 the requirement will apply for companies reporting incomes of
over 11.4 million nuevos soles.
18 Disclosure of violations or irregularities
To what extent must companies disclose violations of anti-bribery laws
or associated accounting irregularities?
There is no specic legislation on the subject.
19 Prosecution under financial record keeping legislation
Are such laws used to prosecute domestic or foreign bribery?
There is no specic legislation on the subject.
20 Sanctions for accounting violations
What are the sanctions for violations of the accounting rules
associated with the payment of bribes?
There is no specic legislation on the subject.
21 Tax-deductibility of domestic or foreign bribes
Do your countrys tax laws prohibit the deductibility of domestic or
foreign bribes?
Only expenditure that derives from commercial activity or that is
related to the activities of a company or industry is tax-deductible.
All bribes, foreign and domestic, constitute a crime according to
Perus Criminal Code, and as such cannot in anyway be considered
tax-deductible, as they derive from illegal activities.
Domestic bribery
22 Legal framework
Describe the individual elements of the law prohibiting bribery of a
domestic public official.
The Criminal Code prohibits the bribery of domestic public ofcials
in article 397. The sanctions are higher when the public ofcial takes
an action or omits to take an action in violation of his obligations,
as opposed to when he takes an action in furtherance of his public
functions. The elements of the offence of bribery of domestic public
ofcials are:
a person who
by any means offers, gives, promises
to a public ofcial or servant
a donation, promise, advantage or benet
so that the public ofcial or servant does or omits to do something
in the performance of his functions or in violation of them (as
applicable).
23 Prohibitions
Does the law prohibit both the paying and receiving of a bribe?
Yes. The Criminal Code not only punishes public ofcials for solic-
iting or accepting bribes (article 393 of the Criminal Code), but
also punishes the individual that offers any type of bribe, such as a
donation, promise, advantage or benet (article 397 of the Criminal
Code). More importantly, it is irrelevant if the action performed or
not taken was made in furtherance of the ofcials public functions
or in violation of them.
24 Public officials
How does your law define a public official and does that definition
include employees of state-owned or state-controlled companies?
The denition of public ofcial or servant included in article 425 of
the Criminal Code was recently modied by Law No. 30124 pub-
lished on 13 December 2013. Pursuant to the new denition, a public
ofcial or servant is:
an individual who has a career in public administration.
an individual who holds a political ofce or a position of trust,
including one resulting from a popular election;
anyone, regardless of the specic labour regime under which he
may be, as long as he maintains a labour or contractual link of
any nature with a government entity or agency, including gov-
ernment-owned companies or mixed industry entities within the
commercial activities of the government, provided his functions
are conducted by way of such agencies or entities;
administrators and custodians of assets that have been seized or
deposited by the competent authority, even if such assets belong
to private parties;
members of the army and national police;
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individuals appointed, elected or proclaimed by competent
authority to perform activities or functions on behalf of or at
the service of the state or its entities; and
all others indicated by the Constitution and the law.
The denition of public ofcial or servant includes employees of
state-owned or state-controlled entities (numeral 3 of article 425).
The different categories and denitions of public ofcials and
servants are set forth in the Public Employment Law No. 28175,
which will remain in force until Civil Service Law No. 30057, pub-
lished on 3 July 2013, comes into full force and effect.
25 Public official participation in commercial activities
Can a public official participate in commercial activities while serving
as a public official?
Law No. 27588 outlines the prohibitions and incompatibilities of
public ofcials and servants, as well as state-services providers under
any contractual agreement.
Directors, ofcers, high ofcials, members of advisory councils,
administrative tribunals, committees and other collegiate organs,
directors of state-owned companies and their representatives on
board meetings, among others, have a number of restrictions or
impediments with respect to exercising functions in private institu-
tions or companies which are connected with the specic area of their
public duties, such as:
providing services to them in any form;
accepting remunerated representative positions;
holding board positions;
acquiring directly or indirectly shares or participations (includes
subsidiaries and companies which may have economic ties with
the same);
executing civil or commercial agreements; and
acting as attorneys, representatives, advisers, sponsors, experts
or arbitrators in ongoing processes with the same state organ to
which they provide their services while holding their positions.
These impediments apply for one year after the termination or
completion of their services under any contractual arrangement,
whether by resignation, cessation, removal, dismissal, expiration or
termination of the contract.
Public ofcials such as congressmen, mayors and others are
subject to specic regulations in connection with participating in
commercial activities.
26 Travel and entertainment
Describe any restrictions on providing domestic officials with gifts,
travel expenses, meals or entertainment. Do the restrictions apply to
both the providing and receiving of such benefits?
There is no specic provision in Perus Criminal Code regarding
gifts, travel expenses, meals or entertainment for domestic ofcials.
However, articles 397 and 398 of the Criminal Code do not allow
for the possibility of gifts, promises, or other advantages or benets
being offered or given to another person or entity in exchange for
the performance or omission of an act by a public ofcial or civil
servant in discharging his or her public duties. The restrictions apply
to both the soliciting of such benets by a public ofcial as well as to
the receiving of such benets.
Similarly, Law No. 28024, which regulates domestic and foreign
lobbyists, both companies and individuals, prohibits the direct or
indirect receipt of any generosity by a public ofcial from a lobbyist
or his representative. The prohibition includes gifts, donations, free
services, employment and hiring offers, and also applies to the spouse
and relatives of the public ofcial. The regulations to Law No. 28024
broaden these prohibitions to include any involving the extinction of
obligations beneting the public ofcial or his relatives.
27 Gifts and gratuities
Are certain types of gifts and gratuities permissible under your
domestic bribery laws and, if so, what types?
There is no specic provision on permissible gifts and gratuities under
Perus Criminal Code. All bribes, foreign and domestic, constitute a
crime according to the Criminal Code. However, Law No. 28024
applicable to domestic and foreign lobbyists specically provides that
none of the following is considered a prohibited generosity to a
public ofcial:
contributions of legal origin in favour of electoral campaigns,
pursuant to applicable legislation;
donations and bequests in favour of government entities;
informational materials related to the party on whose behalf the
lobbying is undertaken, delivered to the ofces of public ofcials
such as books, magazines, documents or similar;
training, including transport, lodging and meals, duly supported
and approved by the public institution;
recognition or awards conferred in contests or events open to
the public, as well as commemorative plaques, trophies or other
articles of only commemorative value;
samples distributed for informational purposes and that have a
nominal value; and
all others that the regulations to this law may determine.
28 Private commercial bribery
Does your country also prohibit private commercial bribery?
Peruvian law does not specically recognise corporate criminal liabil-
ity. However, companies can be subject to third-party liability and
pay civil damages arising from a crime. Private commercial bribery
can also be subject to certain administrative sanctions when a crime
is perpetrated carrying out the corporate mission of a company or
using the corporate entity to help or conceal criminal activity. See
question 9 for further detail.
29 Penalties and enforcement
What are the sanctions for individuals and companies violating the
domestic bribery rules?
Perus Criminal Code sanctions the violation of domestic bribery
rules with imprisonment from four to eight years, penalty days
(from 180 to 365), as well as prohibition from holding public ofce,
suspension of political rights, prohibition from exercising a profes-
sion (attorneys and others), and the removal of honorary titles and
others. See questions 9 and 29 for sanctions applicable to companies.
30 Facilitating payments
Have the domestic bribery laws been enforced with respect to
facilitating or grease payments?
Peru does not have specic regulations in connection with facilitating
payments.
31 Recent decisions and investigations
Identify and summarise recent landmark decisions and investigations
involving domestic bribery laws, including any investigations or
decisions involving foreign companies.
Peru has a strong history of corruption within its governmental
institutions. In fact, corruption is the second-biggest concern for
Peruvians, following crime and population security.
Landmark cases and investigations involve former presidents,
such as Alberto Fujimori, Alan Garcia and Alejandro Toledo, and four
of the ve main potential runners for the next presidential contest due
in 2016. Each is subject to corruption allegations to different degrees,
and while some are already imprisoned (Mr Fujimori), others await
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the results of ongoing investigations. Mr Fujimori, who was president
from 1990 to 2000, was sentenced in 2009 to 25 years in prison
for human-rights violations. He has received additional sentences in
several corruption cases. Transparency International has ranked him
among the 10 most corrupt leaders in recent history. Both Mr Garcia
and Mr Toledo are caught up in scandals involving the purchase of
homes in two of Limas priciest neighbourhoods. Mr Garcia is also
facing allegations related to misappropriation and misuse of funds in
infrastructure projects during his second term. He also faces questions
about the more than 5,000 pardons he granted to drug trafckers
during his rst term. Mr Toledo, on the other hand, claims his mother-
in-law used her own funds to purchase a US$5 million house and
ofce in Lima. Luis Castaneda, who is expected to run for president in
2016, is facing questions over service contracts during his two terms
as mayor of Lima from 2002 to 2010. Investigations involving the
alleged kickbacks to Mr Castaneda have been opened and closed by
different judges several times during the past three years.
Recent corruption cases in Peru involving domestic bribery
laws are led by cases where bribery is sought by the public ofcial
or where there is collusion among governmental institutions. For
example, in Perus Congress, nearly a quarter of its members have
faced ethical hearings on corruption charges. Congressmen have
been suspended for pirating and reselling cable-TV access, laundering
illegally harvested wood and gold, running a brothel and lying about
educational achievements on sworn afdavits led to run for ofce.
Other well-known investigations include the Facundo Chinguel case,
where the former head of the Presidential Pardons Commission is
accused of overseeing, while holding ofce, an illicit organisation to
charge fees to those sentenced in drug-trafcking cases in exchange for
a presidential pardon. Other cases involve an adviser to the national
prosecutor, Jose Pelaez, for charging 10 per cent to private service
providers in exchange for being awarded construction contracts;
the former head of police of Callao province, whose personal bank
account was used to deposit income from trafc tickets issued to
taxi drivers; and, among other cases, an illegal network within the
administrative structure of the national housing fund for the Peruvian
police, which was charging to grant loans requested by police ofcers.
With respect to corruption cases involving foreign companies,
a landmark case is the one involving energy rights in the Peruvian
jungle. The corruption scandal followed the release in 2008 of an
audio tape into a television news show that included a conversation
between Alberto Quimper, a board member of the state energy agency
Perupetro, and Romulo Leon, a prominent member of then President
Alan Garcias political party, APRA, in which they apparently agreed
to favour Discover Petroleum, a Norwegian company, in a round
of energy auctions. The company said it had made direct payments
to Mr Leon and indirect payments to Mr Quimper, who was
subcontracted by Discovers law rm to provide tax advice. Discover,
which partnered with government agency Petroperu to jointly explore
the blocks, was awarded ve blocks for energy exploration, in spite of
the fact that the three-year old company did not appear to have the
nancial backing to take on extensive offshore drilling.
A more recent corruption scandal involving foreign companies
is also connected to the Peruvian jungle. More than half of Peru is
covered by dense forest, including a wide stretch of the Amazon basin,
which spreads across South America. Its preservation is considered
central to combating global warming and protecting the many species
of plants and animals found only in the region.
In recent years, Peru has passed laws to crack down on illegal
logging, as required by the 2007 Free Trade Agreement with the
United States. But large quantities of timber, including increasingly
rare types like mahogany, continue to ow out, much of it ultimately
heading to the United States for products like hardwood ooring and
decking sold by American retailers. The World Bank estimates that as
much as 80 per cent of Perus logging exports are harvested illegally,
and ofcials say the wood typically gets shipped using doctored
paperwork to make the trade appear legal.
US ofcials say that Peru has made progress ghting illegal
logging, but the persistence of the problem led the Ofce of the United
States Trade Representative in January 2013 to demand stronger
measures from Peru, including the swift prosecution of government
ofcials and others who violate environmental laws. Unfortunately,
environmental-related enforcement has proven increasingly difcult
due to the remoteness of the area, lack of funding for this purpose
and the deep pockets of international wood and lumber companies.
Despite new legislation and the mandate under the trade agreement
with the US, the Peruvian government has failed to tackle forestry-
related corruption.
Corruption is a key concern of Perus population, according to
a recent 2013 poll. Peruvians gave a ranking of 44 on a scale
of 100 to corruption, identifying it as one of the key problems
the country is facing, followed by the countrys economy and
unemployment. The law supporting the creation of the high-level
Anti-Corruption Commission was published in January 2013, and
its regulations in August 2013, as an effort to respond to the
concerns of the population, offset the aftermath of the countrys
corruption scandals and attend to the growing international anti-
corruption culture, as Peru becomes a stable member of the
world economy. The commission comprises public, private and
civil society, and is responsible for developing a national plan to
fight corruption at the national level. The Organization of American
States recognised it in September 2013 with an award for
innovation in public administration.
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