Status of a person reporting corruption and witness of corruption and disclosure procedure

Under Law of 29 January 2024 No. 10437 “On Protection of Persons Reporting Corruption and Witnesses of Corruption from Retaliation in the Workplace” (Ley de protección de las personas denunciantes y testigos de actos de corrupción contra represalias laborales No. 10437):

• A person reporting corruption* (hereinafter, a whistleblower) is a natural or legal person disclosing information that comes to their knowledge and gives them grounds to believe a corruption offence or crime also of transnational nature could be/have been committed in the public and/or private sector;
• A witness of corruption (hereinafter, a witness) is a natural person who has this status in administrative or criminal proceedings against a corruption offence or crime that came to their knowledge.

In order to disclose information, whistleblowers can:

• Contact the internal audit division of a public body and organisation;
• Use internal reporting channels that as per the Law must be established in the private sector organisations with over 50 employees and ensure confidentiality of whistleblowers/witnesses;
• Contact the Office of the Comptroller General of the Republic (La Contraloría General de la República) and other bodies that address administrative grievances;
• Make information public, for instance, through the mass media.

Protection of whistleblowers and witnesses

Under the Law, the right to protection from possible retaliation is granted to:

• Whistleblowers, if they disclose information that comes to their knowledge and gives them reasonable grounds to believe that a corruption offence/crime can be/has been committed;
• Witnesses, if following the decision of a competent authority they testified and the testimony was confirmed thereafter in administrative or criminal proceedings against a corruption offence or crime that had come to their knowledge in the exercise of their professional duties, and cooperated with investigation also in another manner;
• Colleagues of whistleblower/witness, other third parties related to them professionally;
• Relatives of whistleblowers/witnesses up to the fourth degree of affinity or kinship.

The following persons in their capacity of whistleblowers/witnesses are entitled to protection:

• Servants of public bodies, including former ones;
• Employees of organisations, either temporary or permanent, including former ones, trainees, volunteers and consultants;
• Applicants or candidates to positions at a different stage of pre-contractual relations with bodies (organisations);
• Persons who initially disclose information in an anonymous manner but whose identity comes to the knowledge of their employers thereafter;
• Persons subject to retaliation before making a disclosure to prevent the reporting.

Protection of whistleblowers/witnesses and other persons implies:

• Protection of witnesses in criminal prosecution and provision of full access to legal remedies;
• Non-application of certain liability measures (disciplinary, civil, administrative and criminal) for disclosing corruption or testifying as a witness of corruption;
• Exemption from liability, if due to the reporting certain requirements to preserve the confidentiality of the disclosed information or restrictions to obtain this information are violated;
• Exemption from liability except for criminal liability, if the disclosed information or the access to this information are obtained illegally;
• Prohibition to enforce (threaten to enforce) retaliation measures against whistleblowers/witnesses, their representatives and/or persons working for them or acting on their behalf, actions or omissions that directly or indirectly inflict unjustifiable damage to whistleblowers/witnesses and/or other persons related to them;
• Right to free legal assistance and reparation of damage in the event that the labour court proves the fact of enforcement of retaliation measures.

Under the Law, the retaliation measures are:

• Removal from office, dismissal or other equivalent measure;
• Demotion, refusal from promotion;
• Deterioration in working conditions (change in responsibilities, wage working hours etc.);
• Refusal to renew (early termination of) a fixed-term employment contract or a contract to execute certain work, termination of a non-fixed employment contract, refusal to switch from a fixed-term to a non-fixed term contract if it is still relevant or its execution has exceeded the maximum term established by the law;
• Restriction of the right to professional training;
• Negative assessment of performance or provision of negative characteristics for the next employment;
• Enforcement of disciplinary liability measures;
• Intimidation, coercion to certain acts, harassment and stigmatization in the workplace;
• Discrimination, negative and/or unfair treatment;
• Cancellation of an annual leave and/or compensation days-off provided by the employer;
• Material and immaterial damage (reputational, professional, social psychological);
• Physical damage;
• Other forms of retaliation.

Whistleblowers/witnesses can file grievances to the labour court following a simplified procedure against the retaliation measures which they suffer from; in this case, the burden to justify them rests with the employer.

Liability measures

The Law contains provisions on liability for a failure to comply with the established requirements:

1. Whistleblowers/witnesses can be held liable for knowingly reporting false information (which can be equated to a slander or insult) and/or information that has a confidential character (which can be equated to a violation of the right to privacy and confidentiality of messages); specific liability measures are to be defined in line with the existing law;

2. Employers who adopt retaliation measures against whistleblowers/witnesses are subject to a fine ranging from one to 100 basic salaries in the framework of administrative proceedings, and to a fine between 100 and 1,000 basic salaries under criminal prosecution; the amount of a basic salary ranges between CRC 352,000 and 752,000 (from USD 692 to 1,477);

3. Officials of public bodies and organisations can be held liable under Law of 6 October 2004 No. 8422 “On Countering Corruption and Illicit Enrichment in the Civil Service” (Ley 8422 contra la corrupción y el enriquecimiento ilícito en la función pública) due to:

• The enforcement of retaliation measures;
• Obstruction of filing or processing of reports of corruption offences/crimes, as well as testimony in administrative or criminal investigation of a corruption offence/crime;
• Failure to preserve the confidential character of whistleblowers’/witnesses’ data.

The proceeds of fines will be distributed as follows:

• 50% will be allocated to the Prosecutor General’s Office of the Republic, the Public Ethics Prosecutor (Procuraduría de la Ética Pública) and the Programme to Prevent, Detect and Counter Corruption (Programa de Prevención, Detección y Combate de la Corrupción);
• 50 % will be transferred to the Special Unit for Labour Issues of the Department of Public Defenders of the Judicial Power (Unidad Especializada en Materia Laboral, del Departamento de Defensores Públicos del Poder Judicial).

Awareness-raising and training

Under the Law, the Public Ethics Prosecutor shall draft and issue guidance on reporting corruption offences/crimes and organising training on disclosing corruption together with authorities and organisations of the public and private sectors.

*As per the Law, the following acts are recognised as corruption:

• Active and passive bribery of public officials;
• Acts (omissions) of public officials in the exercise of their functions with the aim to obtain illicit benefits for themselves or third parties;
• Concealment of proceeds of corruption offences and other fraud activities involving these assets;
• Complicity, aiding and abetting in corruption offences;
• Offences provided for by Law of 6 October 2004 No. 8422 “On Countering Corruption and Illicit Enrichment in the Civil Service” and crimes defined in section XV of the Criminal Code (Código Penal);
• Laundering of proceeds of illegal activities related to domestic or transnational corruption;
• Other crimes damaging integrity of the civil service.