Status of a whistleblower and procedure for disclosing information
Under Law of 21 August 2023 No. 21.592 “On the Protection of Whistleblowers” (Establece un Estatuto de Protección en Favor del Denunciante), civil servants and employees of public sector organisations must disclose information that comes to their knowledge in the fulfillment of their professional duties concerning a crime, administrative and/or disciplinary offence also of corrupt nature that was committed, is being committed or can reasonably be expected to be committed, as well as other illegal actions actually or potentially affecting public property in:
- organisations of the public sector and those of the private sector where the state or organisations of the public sector own a controlling share or 50 per cent of the authorised capital or have a representation or participation;
- not-for-profit organisations established in accordance with Organic Constitutional Law of 11 November 1992 No. 19.175 “On Regional Government and Administration” (Ley Organica Constitucional Sobre Gobierno y Administracion Regional) and Organic Constitutional Law of 31 March 1988 No. 18.695 “On Municipalities” (Ley Organica Constitucional de Municipalidades);
- private organisations receiving public support in the form of subsidies and/or contributions for specific purposes.
A whistleblower can not only be an employee of a public body (employee of a public sector organisation), but also:
- a volunteer or an intern undertaking activities in a body (organisation) on a paid or free-of-charge basis;
- a person who is a candidate for a post or is at another stage of pre-contractual relationship with the body (organisation).
However, disclosure of information for these categories of individuals is a right rather than a duty.
As per the Law, the tip made by a whistleblower should contain:
- information allowing for indentifying the whistleblower;
- information on how to reach out to the whistleblower, for instance, the email address;
- detailed description of the offence;
- information allowing for indentifying the perpetrators and other persons who in the whistleblower’s opinion are aware of the offence;
- statement on the anonymity of the whistleblower.
Additionally, the report, if necessary, can be supplemented by the documents and/or other materials proving the fact of the offence and the request to provide protection in the event that the whistleblower refuses to keep his/her identity anonymous.
Under the Law, the Controller General (Contraloría General de la República) should create a digital platform to gather, store and process reports; it should ensure protection of confidentiality of identity of the whistleblower and any other third person the information about whom is contained in the tip.
If the fact of violations is proved as a result of the verification procedure the Controller General should:
- either initiate disciplinary proceedings with regard to the offences concerning public interest, including corrupt practices, and provide the competent authorities with the recommendations on how to hold the perpetrators disciplinary liable, or
- forward the information on offences to the competent authorities, in particular, to prosecutors.
Besides the digital platform, whistleblowers are entitled to report directly to the public bodies also through electronic reporting channels that can be established therein in line with Law of 29 May 2003 No. 19.880 “On the Basics of Administrative Procedures Regulating the Activities of Public Administration” (Establece Bases De Los Procedimientos Administrativos Que Rigen Los Actos De Los Organos De La Administracion Del Estado) and other legal acts.
Protection of whistleblowers
In accordance with the Law, the following individuals are entitled to protection due to reporting:
- the reporting person;
- the spouses/partners of the whistleblower;
- the relatives of the whistleblower, both ascendants and descendants, as well as collateral ones up to the second degree of affinity.
Retaliation consists of arbitrary and unjustified action (omissions) or actions (omissions) that in a way or another humiliate or harass the whistleblower (an individual related to him/her).
The Law also contains a non-exhaustive list of retaliatory measures, including:
- suspension, dismissal, early termination of the contract/agreement;
- change of the working conditions (transfer to a different place, division or position);
- conduct of annual prequalification if the accused is a superior of the whistleblower;
- reduced chances for the candidate to get the job;
- other measures.
Protection of the whistleblowers who report via the digital platform that will be established under the Law and their associates shall be ensured by the Controller General. The protection will be provided until there is the risk of retaliation due to reporting and even after the proceedings concerning the offence disclosed are concluded.
The reporting of knowingly false information is subject to criminal liability, in particular:
- for reporting a crime – imprisonment for a period between ten years and one day and 15 years and a fine ranging from 11 to 20 monthly tax units (MTUs) (from $ 698,000 to $ 1,300,000);
- for reporting an administrative offence – imprisonment for a period between five years and one day and 15 years and a fine from six to ten MTUs (from $ 381,000 to $ 635,000);
- for reporting a disciplinary offence – imprisonment between five years and one day and ten years and a fine from one to 5 MTUs (from $ 63,000 to $ 317,000).
The Law also provides for the possibility of leniency for the perpetrators provided that:
- they report violations themselves though relevant reporting channels;
- they cooperate with the investigation;
- the information provided by them helps clarify the facts of violations and allows establishing other participants in the crimes or preventing other offences.
The legal acts regulating the activity of the Controller General with regard to the establishment of the reporting channel shall be adopted within six months from the publication of the Law; the provisions of the Law concerning the status of a whistleblower, reporting procedure, reporting channels etc. come into force within 30 days from the publication of these acts.