Key Benefits:
law no 458
LAW OF DECEMBER 19, 2013
ALVARO GARCIA LINERA
PRESIDENT-IN-OFFICE OF THE PLURINATIONAL STATE OF BOLIVIA
For the Plurinational Legislative Assembly, it has Sanctioned the following Act:
PLURINATIONAL LEGISLATIVE ASSEMBLY,
D E C R E T A:
WHISTLEBLOWER AND WITNESS PROTECTION ACT
CHAPTER I
GENERAL PROVISIONS
ARTICLE 1. (OBJECT). This Act is intended to establish the Whistleblower Protection System
and Witnesses.
ARTICLE 2. (PURPOSE).
I. Protect servers and public servants, former servants and former public servants, individuals and their
close family environment, who are susceptible to retaliation.
II. Comply with the International Conventions of Fight Against Corruption and other International Instruments.
ARTICLE 3. (SCOPE OF APPLICATION).
I. This Law applies to persons who have carried out, performed or are in possession of a protected activity in relation to the crimes of organized crime, terrorism, corruption and drug trafficking, against girls, children and adolescents, violence against women, trafficking and human trafficking and/or violation of fundamental rights.
II. To people in their close family environment, and those determined by the protected person.
ARTICLE 4. (DEFINITIONS). For the purposes of applying this Law, the following terms are defined:
Protected Person. It is the public server or former public server, or particular person, to which protection measures are granted for having made or having to perform a protected activity in the terms of this Law.
Activity Protected. It is any of the following actions:
The written or verbal manifestation that is made to the competent authority over the alleged commission of a crime.
The lawful, information or evidence disclosure that leads to or contributes to the initiation or continuation of an investigation.
The intervention as a witness, expert, technical advisor or other form of direct or indirect participation in administrative headquarters or judicial process.
Retaliation. It is all manner of punishment, harm, persecution, harassment, verbal, physical or psychological violence, restriction of rights; or any action against the protected person or his close family environment.
Retaliation in the field of work. It is all manner of imposition of disciplinary sanctions, withdrawal, removal, admonishment, suspension, transfer of sector, unjustified change of functions, modification of schedule or other working conditions, negative rating unjustified, verbal, physical, psychological or sexual harassment, harassment and any other formal or informal act or practice which results in an impairment of the work situation of the public servant or individual, adopted in a manner at the same time or after the performance of a protected activity by the protected person.
quotation. It is the communication of any information or evidentiary element whose disclosure is not expressly prohibited by Law.
Close family environment. They are the ascendants, descendants, siblings and spouse or survivor of the protected person; or persons who have direct dependence on the protected person.
ARTICLE 5. (PRINCIPLES). The Whistleblower and Witness Protection System will be governed by the following
principles:
Volunteering. It is the express, free and voluntary consent of the protected person, for the application of any measure of protection, in the terms of this Law.
Confidentiality. All information inherent in the identity and other personal data of the protected person, as well as the procedures for protection and assistance, shall constitute confidential information.
Temporality. Protection measures shall last for a certain period of time, as long as the situation of risk or other reasons justifying its application is maintained, even if the administrative or judicial proceedings in the framework of which they were issued have been completed.
Gratuity. The protection measures applied in accordance with this Law, will be financially funded by the State, and will not involve any expense or debt to the protected person.
Celerity. The protective measures provided by this Law shall be adopted as quickly as possible, avoiding the introduction of formal or bureaucratic obstacles which in practice prevent their timely implementation.
cooperation. State institutions with responsibilities in the protection system shall cooperate as widely as possible in complying with the rules and procedures provided for in this Law.
CHAPTER II
MEASURES PROTECTION
ARTICLE 6. (SCOPE OF PROTECTION MEASURES).
I. The protection measures expressly provided for by the law, may be granted before, during and after
a process, provided that a person has performed or is available to perform a protected activity.
II. These measures are only expressed in an enunciative and non-limiting manner, the competent authority may provide any
other measure that is appropriate for the purposes set forth in Article 2 of this Law.
III. Any protective measure must be immediate and effective. The procedure for granting it must be carried out with
the maximum speed and through informal and expeditious procedures.
IV. Without prejudice to the powers of the competent authorities, in accordance with Chapter IV of this Law,
all state agencies are obliged to cooperate and take the necessary measures for the effectiveness of this Law.
ARTICLE 7. (PROTECTIVE MEASURES).
I. The protective measures intended for persons who have made or are in possession of a protected activity
and have suffered or are at risk of retaliation under the terms of Article 4 of this Law, are the following:
Preservation of the identity and confidentiality of personal data.
Preservation of your labor rights.
Police protection for removal to comply with administrative and/or judicial proceedings.
Police custody at the person's home address.
Use of technological systems that prevent the identity of the person from being known.
Methods of distortion of the physical appearance or voice.
Temporary accommodation in shelters intended for the protection of victims and witnesses; whose location must be reserved and with police custody.
Attention
Separation of the rest of the prison population or its transfer, under reservation, to another prison facility, where it will be given greater security in the case of a protected person who is deprived of liberty.
Other that can be adopted to preserve the security of the protected person.
II. More than one protection measure can be applied at the same time, as long as the current
regulations are not contravened.
ARTICLE 8. (PRESERVATION OF IDENTITY AND CONFIDENTIALITY OF DATA
PERSONNEL).
I. The Ministry of Government, the Ministry of Institutional Transparency and the Fight Against Corruption, the Ministry
Public and the Bolivian Police, must establish mechanisms to make complaints under the reserve of identity. which implies that all data enabling the individual or the person to be identified or declared to be identified, kept confidential in all cases and proceedings being carried out.
II. Furthermore, they must carry out the necessary procedures in order to prevent the visual identification or
protected person, in all circumstances in which he is required to appear before an administrative authority or judicial, or to any public or private body for the purpose of fulfilling a necessary procedure.
III. For the purpose of preserving the reservation of identity and confidentiality of personal data, the protected person may
fix as their domicile, the offices of the Public Ministry, the Ministry of Government or of the Ministry of Institutional Transparency and Fight Against Corruption, as appropriate, for the purposes of receiving notifications or actions.
IV. A reserved means of communication shall be agreed with the protected person.
ARTICLE 9. (PRESERVATION OF LABOUR RIGHTS).
I. No public server or server, or particular person, may be the object of retaliation in its work scope, by the
performing a protected activity.
II. The public or private entity will have the burden of proving that the decision has not constituted an act of retaliation, but a
legitimate decision.
III. In case it is determined that the act or practice has not constituted retaliation, the cessation of the measure of
protection will be ordered, without the right to appeal to the administrative or judicial resources to which the person is entitled affected person.
IV. In case it is determined that the act or practice has constituted retaliation, the protected subject will have the right to choose between:
1. The definitive cessation of the formal or informal act or practice that constituted the retaliation and restitution of the working conditions of which the person previously protected from the act was granted.
2. Moving to another dependency, enjoying similar hierarchy, salary, and functions to those previously owned by the act of retaliation.
V. In case the person in need of job protection is not a public servant,
VI.
VI.
The decision contrary to the interests of the protected person, both in respect of the application for protection and inrelationship to the determination the facts, it may be contested through the recursive procedure more expedited.
VII. The initiation of the procedures provided for in this Article does not require the prior exhaustion of any administrative or judicial
It shall not preclude the joint action of liability for the public function in the terms of the law governing the public service, the appeal for revocation and the appeal to the Directorate of Civil Service, or other actions or resources. provided in the legal order.
ARTICLE 10. (PENALTY FOR RETALIATION IN THE WORKPLACE). The performance of any formal or informal act or practice of retaliation in the field of work, towards a public servant that has carried out or is in dispute to carry out a protected activity, will be sanctioned with the dismissal, prior to the process administrative.
ARTICLE 11. (POLICE PROTECTION FOR THE TRANSFER). The Public Ministry, provided that
has the consent of the protected person, may arrange for them to be transferred with non-uniformed police protection, for the purpose of providing a declaration in the framework of administrative or administrative procedures. (a) judicial, or for the purposes of, a specific place for the purpose of obtaining documentation, conducting technical examinations, activities of his or her own office or other necessary formalities, or for any purpose for the purpose of protecting his or her safety and that of his/her close family environment.
ARTICLE 12. (POLICE CUSTODY AT THE PERSON ' S ADDRESS). When the realization of
a protected activity determines the existence of danger to the safety, physical integrity or life of the protected person or his close family environment, it may be assigned through the Ministry of Government and the Bolivian Police through its specialized departments, non-uniformed police custody at the protected person's home, granting them the necessary conditions to fulfill their (a) function, for as long as it is deemed relevant according to the purpose of the Present Law.
ARTICLE 13. (TECHNOLOGY SYSTEMS TO RESERVE THE IDENTITY OR DISTORTION OF
THE VOICE). To prevent the protected person from being identified by his or her physical appearance or voice, Gesell cameras and technology systems such as video-conferences, recorded exhibitions, tapes, or any other recording system, or reliable transmission.
ARTICLE 14. (TEMPORARY CHANGE OF PHYSICAL APPEARANCE). All items that will temporarily change physical aspects of the person, such as hair and eye color, facial features, and others that prevent their recognition may be used.
ARTICLE 15. (TEMPORARY ACCOMMODATION IN HOSTELS). When there is danger in the address
of the protected person or his family, they may be transferred to temporary shelters through the Directorate of Protection of Victims, Witnesses and Members of the Public Ministry, dependent of the State Attorney General's Office, until the danger ceases or is granted other types of protective measures.
ARTICLE 16. (PSYCHOLOGICAL ATTENTION). The protected person may receive psychological support through
the Victim Protection Directorate, Witnesses and Members of the Public Ministry.
CHAPTER III
APPLICATION PROCEDURES
AND ADOPTION OF PROTECTIVE MEASURES
ARTICLE 17. (APPLICATION FOR THE ADOPTION OF PROTECTIVE MEASURES).
I. The request for protection measures to be taken, can be done in the following instances:
Ministry of Government, if it is outside a court process.
Public Ministry, through the Competent prosecutor, in case of being within a judicial process.
Ministry of Labor, Employment and Social Security, for the protection of labor rights.
Ministry of Institutional Transparency and Fight Against Corruption, in any of the previous stages in the field of crime corruption, so that it can channel the measure accordingly.
II. The application may be made by any person who has made or is available to perform a protected activity, or a person from his or her close family environment, who can accredit their link or dependency and the situation of
III.
III. Where there is retaliation and no express application for protection measure, it may exceptionally be applied from
trade with the consent of the protected person.
ARTICLE 18. (DECISION ON THE GRANTING OF PROTECTIVE MEASURES).
I. The decision on whether or not to grant a protection measure and on what measure or measures of protection will be
granted, falls to the Ministry of Government, the Public Ministry or the Ministry of Labour, Employment and Social Security. Social, one or more of them will be those who decide according to their competencies, as set out in Article 17 on the basis of the assessment described in Article 19.
II. The Ministry of Government will grant the protection measures or are necessary from the request to the complaint before the Public Ministry.
III. Once the complaint is found in the Public Ministry, it will assess whether the protected person will continue or not
enjoying the measure granted by the Ministry of Government or whether it is better to apply another protection measure.
IV. The Ministry of Labor, Employment and Social Security will communicate to the entity in which the protected person works their
decision to apply a measure of preservation of labor rights, which must be met in a manner immediate by that entity. In the case of individuals, they will proceed according to the current regulations.
ARTICLE 19. (VALUATION).
I. The entities that make the decision on the adoption of protective measures, will carry out the assessment on the
relevance of granting one or more of the ones established in Article 7 of this Law, based on a study in coordination with the Bolivian Police.
II. These entities, as appropriate, will ensure that the assessment and decision-making will be made over time
strictly necessary, so that the decision is not extemporaneous for the person who requested the measure. They will also ensure that the measure or measures are applied immediately.
III. In the case of measures granted for extended times, periodic assessments must be performed for the same to continue.
IV. The assessment will be performed by using the identity of the protected person.
ARTICLE 20. (DURATION OF THE PROTECTION MEASURES).
I. The protection measures will last up to one (1) year since they were granted.
II. In case the danger has ceased, the measure will be removed after assessment, even if the year
has not been completed.
III. If the danger persists, the measure may be extended as often as necessary, upon assessment, until the
danger ceases.
IV. Protection measures may be suspended or withdrawn if the protected by default of the obligations outlined to you by
this Law.
ARTICLE 21. (OBLIGATIONS OF PROTECTED PERSONS).
I. The protected person must meet the obligations that will be set by the authority that decides the measures of
protection, according to Article 17 of this Law, these obligations will be conditioned to:
Your cooperation with the competent administrative or judicial authorities, in the proceedings that are necessary for the purposes of the progress of the actions that aim to clarify the crime reported.
The appropriate behavior that preserve the effectiveness of the protection measures, ensuring their own integrity and security.
The duty of confidentiality in relation to the procedures and conditions in which protection measures work.
II. The granting and maintenance of protective measures shall be conditional upon compliance with the obligations
arranged by the competent authority, and directed to ensure development in administrative or administrative headquarters. a judicial process that has as its object the reported crimes, and to maintain the due conditions for the maintenance of the protective measures.
III. Failure to comply with the obligations imposed, may be sanctioned by the same the authority that decided the adoption
of the measures of protection with the cessation of such measures, without prejudice to actions of a civil nature to which it has taken place, in order to compensate for the damage caused to the State. The competent authority shall be required to record the verification of the violation of the obligations imposed in the reasoned resolution in which it takes its decision.
ARTICLE 22. (ACT OF COMMITMENT TO FULFIL OBLIGATIONS).
I. The protected person must subscribe under oath to the competent authority that decides the adoption of the
protective measures, a Obligations Compliance Commitment Act, which consists of a document in the detailed definition of the actions to be performed by the authority responsible for granting protection and the obligations to be fulfilled by the protected person.
II. The Act shall contain at least the following:
The protected person's declaration, and if any, their family environment close, that the protected activity is performed in good faith, that the application is voluntary, and that the protection measures will not be understood as payment, compensation, or reward for their protected activity.
The scope and the character of the protection to be granted to you.
3. The obligations of the protected person and the sanction to be applied in the event of non-compliance.
ARTICLE 23. (PRESUMPTION OF GOOD FAITH).
I. The protective measures provided for in this Law shall only apply to protected activities carried out in good faith.
II. The good faith of any protected activity shall be presumed. The burden of the demonstration of bad faith will be on the person who claims it.
III. They will not be considered in good faith:
Complaints, statements, opinions, technical examinations or other information whose content is false, when that circumstance is known to the person when they are being offered to the competent authority.
The complaints, statements, opinions, technical examinations or other information that are carried out with the sole and evident purpose to cause harm to the persons or institutions identified in them.
The complaints, statements, opinions, technical examinations or other information that are carried out for the purpose of covering up or dissembling a lack of the duties in charge of the public servant that warrants a sanction, in the framework of the regulations in force, and in the case of individuals for the purpose of covering up a crime.
IV. When it is shown that the fact did not exist, it is not a crime or that the defendant did not participate in it, with the
basis of the Acting in bad faith of the protected person under reservation of identity, the judge may, at the request of the interested, to lift the reservation within the maximum period of seventy-two (72) hours.
CHAPTER IV
COMPETENT INSTITUTIONS AND ATTRIBUTIONS
ARTICLE 24. (COMPETENT INSTITUTIONS).
I. The Whistleblower and Witness Protection System will be in charge of the Ministry of Government, Public Ministry and the
Bolivian Police, who will act in a coordinated manner in order to comply with the purposes of this Law.
II. The Ministry of Institutional Transparency and Fight Against Corruption, and the Ministry of Labor, Employment and Social Security, will work in a coordinated manner with the entities in charge, within the framework of the powers conferred by this Law.
ARTICLE 25. For the purposes of compliance with
this Law, the Ministry of Government has the following powers:
Valoring the granting of protective measures to a person public server and establish what measure or measures will be assigned to it.
Run the protective measures through the Bolivian Police or the competent instance.
Direct the Bolivian Police for the compliance with the protection measures taken.
Coordinate with the Ministry Published the adoption of measures through the Directorate of Victims, Witnesses and Members of the Public Ministry, where appropriate.
Formulating and coordinating international police cooperation policies for the protection of protected persons.
Orienting people who have made or are at their disposal to perform a protected activity, on the consequences that may derive from their performance, as well as on the protection measures which are entitled, and the characteristics of the mechanisms and procedures applicable administrative and judicial.
ARTICLE 26. (RESPONSIBILITIES OF THE MINISTRY OF INSTITUTIONAL TRANSPARENCY AND
FIGHT AGAINST CORRUPTION). For the purposes of compliance with this Law, the Ministry of Institutional Transparency and Fight Against Corruption has the following powers:
Receive requests for protection from people who have made or are available to perform a protected activity with respect to corruption offenses.
Request the competent authority to perform the assessment on the relevance of granting some protection measure.
Save reservation of the identity of the protected person and of the documentation presented, collected and generated in the performance of their functions, in accordance with Paragraph III Article 17 of Law 004 of March 31, 2010, and Article 8 of this Law, how to carry out any other necessary measures to preserve the confidentiality of the personal data of the protected person and to prevent their identification.
Coordinate the dissemination of the rules and procedures foreseen by the This Law, through its departmental offices and the Transparency Units throughout the country.
Orienting people who have made or are at their disposal to perform a protected activity, on the consequences that they can to derive from its implementation, as well as in relation to the protective measures to which have the right, and the characteristics of the applicable administrative and judicial mechanisms and procedures.
ARTICLE 27. (POWERS OF THE PUBLIC MINISTRY). For the purposes of compliance with the
this Law, the Public Ministry has the following powers:
Rate the granting of protective measures to a particular person or public servant and establish what measure or measures will be assigned to you.
Require the adoption of protective measures through the Victims, Witnesses and Members of the Public Ministry.
Velar because the Management of Victims, Witnesses and Members of the Public Ministry, is in a position to grant the protection measures set out in this Law.
Orienting people they have carried out or are required to carry out a protected activity, on the consequences which may result from its implementation, as well as on the protective measures to which they are entitled, and the characteristics of the mechanisms and applicable administrative and judicial procedures.
ARTICLE 28. (DIRECTION OF PROTECTION FOR VICTIMS, WITNESSES AND MEMBERS OF THE
PUBLIC MINISTRY). The Directorate for the Protection of Victims, Witnesses and Members of the Public Ministry, according to its own regulations, in addition to the functions that plays, must attend to all cases that arrive for crimes set forth in Article 3 of this Law.
ARTICLE 29. (FUNCTIONS OF THE BOLIVIAN POLICE).
Law, the Bolivian Police has the following functions:
Meet the measures taken by the Ministry of Government and the Public Ministry.
Assist the Ministry of Public Health and the assistance that is required for protected persons.
TRANSIENT provisions
FIRST. The competent institutions, within a maximum period of one hundred and eighty (180) calendar days
computables from the publication of this Law, shall establish the necessary regulations for the compliance with this Law.
SECOND. The Public Ministry, in charge of its institutional budget, will prioritize resources for
strengthening the Directorate of Protection of Victims, Witnesses and Members of the Public Ministry.
FINAL PROVISIONS
. All public and private entities must establish the procedures necessary to disseminate
among their employees and the citizenry, the scope of this Law, publishing their text on their websites and at the sites of the largest visibility of their headquarters, as well as other mechanisms to ensure the knowledge of this standard.
SECOND.
I. The Ministry of Government, the Ministry of Institutional Transparency and Fight Against Corruption, the Ministry
Public and the Bolivian Police, will have to include in their respective annual reports the proper accountability of the the measures carried out and the budget executed in compliance with the purposes set out in this Law.
II. In order to comply with this Law, the entities mentioned in the preceding paragraph must incorporate the corresponding resources into the internal
of their institutional budgets, regardless of the source of financing.
THIRD. The Comptroller General of the State and the respective internal audit units may perform
audits of the measures taken by the different authorities with powers in the protection system, in accordance with the legislation in force. However, in any case, those who carry out the audits may know the identities or personal data of the protected persons, or the confidential information they have provided. Those who perform audits must sign a commitment to confidentiality, and at no time will they be able to disseminate information regarding the protection system.
REPEAL PROVISION
ONLY. All provisions contrary to this Law are hereby repealed.
Remitase to the Executive Body, for Constitutional purposes.
It is given in the Session Room of the Plurinational Legislative Assembly, ten days of the month of
two thousand thirteen years.
Fdo. Lilly Gabriela Montano Viana, Betty Asunta Tejada Soruco, Andres AgustÃn Villca Daza, Claudia Jimena
Torres Chavez, Galo Silvestre Bonifaz, Angel David Cortes Villegas.
Therefore, it is enacted to have and comply with the Law of the Plurinational State of Bolivia.
Palace of Government of the city of La Paz, at the nineteenth day of December of the year two thousand thirteen.
FDO. ALVARO GARCIA LINERA, Juan Ramon Quintana Taborga, Carlos Gustavo Romero Bonifaz, Luis Alberto Arce Catacora, Cecilia Luisa Ayllon, Quinteros, Daniel Santalla Torrez, Roberto Ivan Aguilar Gomez MINISTER OF EDUCATION AND TRANSAPARENCIA INSTITUTIONAL AND FIGHT AGAINST CORRUPTION, Amanda Davila Torres.
