Companies Urged to Seek External Legal Advice During Investigations

In the face of an internal investigation, companies in Peru are being advised to seek external legal advice to ensure they comply with regulations and protect their interests.

Understanding Professional Secrecy Laws

According to the Peruvian Supreme Court, the right to professional secrecy must prevail over the right to obtain evidence. This means that companies may be able to withhold documents or information from investigators if it falls under professional secrecy laws.

Compelled Testimony

• In Peru, individuals are not compelled to testify as investigated parties, but they may be compelled to testify as witnesses.
• Under certain circumstances, such as if the questions relate to their criminal liability or professional secrecy, individuals may be able to oppose testimony.
• Companies should also be aware that investigated parties have the right to remain silent and that silence cannot be treated negatively.

Whistleblowing Framework

Peru has a whistleblowing framework in place, which provides legal protections for whistleblowers who report illegal activities or unethical behavior within companies. However:

• There are no financial incentives for whistleblowers in criminal procedures.
• Companies are required to adopt protection measures to prevent retaliation against employees who use whistleblowing channels.

Employee Rights

During an internal investigation, non-specific labor rights are applicable, including:

• Presumption of innocence
• Due process
• Right of defense
• Right to intimacy
• Right to secrecy
• Inviolability of communications

All employees have the same rights during an investigation, regardless of their position within the company.

Internal Investigations

The Superintendency of the Securities Market recommends conducting internal investigations in a timely and thorough manner, free from any influence or bias. Companies should also:

• Define the objectives and scope of the investigation
• Prioritize issues to be investigated
• Identify potential conflicts of interest

Reporting Internal Issues

There is no legal obligation for companies to report dishonest behavior that has occurred and been identified. However:

• Once an internal investigation has commenced, companies are required to try to remedy or compensate any damage caused and identify and correct any internal failures that led to the dishonest behavior.

Responding to Law Enforcement Requests

Companies in Peru should have a protocol in place for responding to requests from law enforcement authorities seeking production or preservation of documents or data. This should include:

• Verifying the validity of the request
• Identifying potential legal contingencies
• Designing a defense strategy to mitigate any potential issues

Conclusion

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In conclusion, companies in Peru are advised to seek external legal advice during internal investigations to ensure compliance with regulations and protection of their interests. It is also crucial for companies to have a deep understanding of Peruvian law and regulations, as well as prioritize employee rights and whistleblower protection.