Chile: Publication of Law No. 21.592, which establishes a whistleblower protection statute
The law conceives access to protection as a right of any whistleblower who reports irregularities within organisations and guarantees their personal integrity and that of their property, as well as the preservation of their living and working conditions, which could be threatened as a result of their whistleblowing or their participation in the respective investigations.
In order to reinforce the existing control mechanisms, the new law establishes a new statute associated with whistleblowing, which includes the following:
A complaints channel administered by the Office of the Comptroller General of the Republic is created, through an electronic platform, so that any person can report facts constituting disciplinary infractions or administrative offences, including facts constituting corruption, that affect, or may affect, public assets or resources, in which personnel of the State Administration or an agency of the State Administration is involved.
Reservation of the complaint
The whistleblower may declare the confidentiality of his or her identity, the content of the complaint and supporting information, which shall be confidential from the moment it enters the complaints channel. The same confidentiality shall apply to the individualisation of the whistleblower.
Duty to report
The law states that state administration personnel have the duty to report, with due promptness, to the appropriate administrative or judicial bodies, any facts that come to their knowledge in the exercise of their duties that constitute criminal offences or administrative misconduct or disciplinary offences.
Measures for the protection of State administration personnel
Anyone making a complaint through the complaints channel established by law may request the Comptroller's Office to adopt one or more of the following preventive protective measures:
- Not to be subject of disciplinary measures like suspension from employment or dismissal, or early termination of their appointment or contract, except when based on the concurrence of a fortuitous event or force majeure.
- Not to be subject of disciplinary measures other than those provided for in the previous paragraph.
- Not to be transferred to another location, unit or function without written authorisation. Notwithstanding the foregoing, his or her working conditions, level or post may not be adversely affected.
- Not to be subject to annual pre-qualification, if the accused is his or her hierarchical superior. If he/she does not do so, his/her last qualification shall apply for all legal purposes.
- Other measures provided for in special whistleblower protection statutes.
Allegation of adverse effects
If a public official, as a result of having made a complaint through the complaints channel, or of having participated as a witness in any criminal or administrative sanctioning or disciplinary proceedings, has suffered negative consequences that affect his or her indemnity or job stability, he or she shall have the right to appear before the Comptroller's Office, within a period of thirty working days from the date of notification thereof, in order for the auditing body by taking cognizance of these facts may determine whether they have had the character of adverse effects on the occasion of the complaint or statement and determine the existence of a null and void procedure that affects the actions or decisions of the service or body.
In the context of disciplinary proceedings to which the lodging of a complaint may give rise, effective cooperation that leads to the clarification of the facts reported or allows the identification of those responsible, or serves to prevent or impede the perpetration of new facts, shall be considered a mitigating circumstance of liability.
The law extends these rules to the following legal persons:
- Corporations or foundations under private law aimed at promoting non-profit activities or initiatives that contribute to regional or communal development in the social, economic and cultural spheres.
- Public or private companies, societies or entities in which the state or its centralised or decentralised companies, societies or institutions have majority or equal capital contributions, or, under the same conditions, representation or participation, as long as they are not included in Article 1(a) of the Law.
Finally, the Law establishes that the complaint through the complaints channel may also be made against private persons and institutions that receive fiscal funds by permanent laws, as a subsidy or contribution from the State.