1. Bribery in the home (private to public)
1.1 The Legal Environment
The following are the Peruvian laws and regulations that establish the concepts, norms, and penalties for bribery of public officials:
Articles 393 through 398 of the Peruvian Criminal Code (Legislative Decree No. 635).
Law No. 30424 governs the legal culpability of legal entities for the crime of active international bribery. This will go into effect on January 1, 2018.
Legislative Decree No. 1352 extends the responsibility of legal bodies. This law will go into force on January 1, 2018.
Supreme Decree No. 027-2007-PCM, which specifies and establishes national mandatory policies for state enterprises.
Law No. 28024, which controls lobbying in the public sector, and its supplemental rule, adopted by Supreme Decree No. 099-2003-PCM,
Law No. 27815 on the Code of Ethics in Public Office
Law No. 30057 on Civil Service and its Complementary Regulations N° 040-2014-PCM Supreme Decree
1.2 What does bribery mean?
Peruvian anti-corruption legislation differentiates between passive and active bribery.
The act of a public official soliciting, accepting, or receiving donations, promises, or any other type of benefit in order to carry out or omit an act in violation of his or her obligations, or without breaking his or her obligations, is known as passive bribery. This is a felony that will result in jail as well as disqualification from public service in the future.
The act of offering, donating, or guaranteeing a donation, promise, benefit, or advantage to a public official in order to influence him or her.
1.3 What does it mean to be a public official?
A public official is defined as follows in the Peruvian Criminal Code (Article 425):
(a) any person with a public administrative career; (b) any person who has been appointed to a political or confidence public position, even if publicly elected; (c) any person who has a labor or contractual relationship of any kind with governmental organisms or entities, including state-owned companies, regardless of the applicable labor regime; (d) an administrator or custodian; (f) any individual who performs functions on behalf of the state; or (g) any other person who is deemed a public official under Peruvian law or the Constitution.
1.4 Bribery’s Consequences
The following are the penalties that could be imposed under Peruvian law for engaging in the aforementioned conducts:
Disqualification in the form of: (a) a temporary (up to two years) suspension from conducting corporate activities (b) a temporary (up to five years) or definitive prohibition from conducting activities of the same kind or nature in the future
Individuals
Depending on the type of bribery committed, up to eight years in prison may be imposed, as well as secondary penalties such as prohibition from engaging in the professional or social activity in which the offense was committed, and prohibition from being elected or designated for a public office, either temporarily (for up to 20 years) or permanently; in some cases, a monetary fine may be imposed.
For public servants
Depending on the type of bribery committed, up to 15 years in prison may be imposed, as well as secondary penalties such as removal from office and prohibition from being elected or designated for a public office, which may be temporary (for up to 20 years) or permanent5; in some cases, a monetary fine may be imposed.
1.5 Contributions from politics
Financial contributions to political parties are limited to 60 Tax Units per year, according to the Political Parties Law (Law No. 28094). (approximately PEN 237,000 or USD 68,000).
The following entities are prohibited from making contributions to political parties:
a) Any governmental body or state-owned corporation; b) Religious organizations; c) Foreign political parties or foreign governmental agencies, unless the donations are designated for education, training, or research.
Political candidates are not permitted to accept personal contributions. Any donation must be given to the political party directly.
1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
Any payment made in favor of a public officer (even if it is a small amount required for a routine activity), a gift, or hospitality could be considered bribery under Peruvian anti-corruption legislation if no prior formal request has been filed and no formal approval has been issued by the corresponding public agency.
A gift or hospitality could be considered bribery under Articles 393 through 401-B of the Peruvian Criminal Code, depending on the circumstances and time frame in which it is given. In this sense, “concealed bribery” will be regarded successful bribery if the reason for the gift or hospitality (for example, the official’s birthday) and the amount of the gift are clearly out of proportion (for example, a new car).
The behavior of public officials will also be considered by the courts in determining whether or not “concealed bribery” was committed. This includes considering whether the official conducts an act under his or her immediate functional competence that benefits the person or company who provided the gift or hospitality as a result of the gift or hospitality offered (for example, grant an authorization or award a tender).
2. Bribery in the home (private to private)
2.1 The Legal Environment
Bribery or benefits obtained from or provided to an officer, director, or executive of a private company or corporate organization are not punishable under Peruvian law. However, officers, directors, or executives of state-owned firms are considered public officials under Section 3 of Article 425 of the Peruvian Criminal Code, and hence are subject to the sanctions listed in Section 1.4.
Bribery or profit obtained from or donated to a private individual who: I has no relationship with public service; (ii) has no relationship with state-owned firms; or (iii) is not carrying out public-related activities is not punishable under Peruvian law (for example, an arbitrator or expert appraiser).
2.2 What is bribery in the private sector?
Private bribery has no legal definition in Peruvian law.
2.3 Private bribery’s ramifications
Private bribery is not permitted under Peruvian law, as stated in Section 2.1.