On 21 April 2021, the official journal El Peruano published Law No. 31370 on the Implementation of Intake Desks and Electronic Notifications ('Law'). Under this Law, information and communication technologies will continue to be implemented under the public administration.
The Law entered into force on 22 April 2021 and is applicable to all public administration entities.
1. Digital intake desk and electronic notification
- Within 12 months of the Law's promulgation, all administrative entities must implement the Digital Intake Desk and the corresponding electronic notifications — digital services that entities must develop respecting the principles, rights and guarantees of due process without affecting the right to defense and equality of the parties and digital services regulated by Legislative Decree No. 1412, Digital Government Law ('LGD' in Spanish).
- Once the entity has issued the corresponding directives to implement the aforementioned digital services, failure to comply will constitute a disciplinary fault of the official or public servant in charge.
1.1 Digital intake desk
The 12-month period for each entity to implement its own digital intake desk bears no relationship to the objectives and deadlines provided for in the regulations of the Law on Digital Government (LDG) recently approved by Supreme Decree No. 029-2021-PCM. According to this regulation, the Peruvian state's Single Documentary Receipt Platform ("Intake Desk Peru") should be implemented, on average, for a period of one year, which should allow all public administration entities to receive documents and requests submitted by citizens. Consequently, the digital intake desks or similar platforms that each public entity has established or that are established in compliance with Law 31170 will have to temporarily coexist with the aforementioned Single Platform until the Intake Desk Peru is fully implemented and all public entities have been integrated into it.
- Therefore, the digital intake desks that each Public Administration entity implements will remain until they are integrated into Intake Desk Peru, which will progressively consolidate the receipt of documents for all entities of the Peruvian public administration.
- During a state of emergency, entities that do not have a digital intake desk or similar will use the Peruvian state's integrated digital applications platform, Facilita Peru, in implementing the standard digital intake desk.
1.2. Electronic notifications
- Electronic notifications are sent through electronic mailboxes or other technological means that comply with the characteristics set forth under Article 20 of the Orderly Unique Text of Law 27444, the Law on General Administrative Procedure ('LGAP'), and with the specification of citizens' digital address in the digital environment, as established in Article 22 of Legislative Decree No. 1412 that approved the Law of Digital Government.
- Be warned that Law 31170 is not in accordance with the goals and timelines of the LGD regulation since, according to this latter rule, all notices and/or communications made by Peruvian Public Administration entities should be directed to the Notification Mailbox that is part of the Single Electronic Mailbox assigned to each citizen and person in general, which in turn facilitates access to the aforementioned notifications and/or communications, instead of having to check the boxes that each Public Administration entity may assign to it.
- The Law also establishes that the entity implementing an electronic notification service may define this service as first in the order of priority of notifications and may characterize it as mandatory, with the exception of those administered in their locality that do not have the appropriate technical means. However, the obligation for the recipient to receive electronic notifications based on what is available in each administrative entity is not consistent with the LGAP. Therefore, in accordance with paragraph 20.1 of the Single Revised Text of the LGAP, the mandatory nature of the notification service via electronic mailbox could only be arranged by supreme decree of the sector, with a prior favorable opinion from the Presidency of the Council of Ministers and the Ministry of Justice and Human Rights.
- In view of what is established in the Single Revised Text of the LGAP, in principle, an electronic notification should only be made if it is requested in favor of the solicitant and not a recourse that benefits the public administration exclusively, keeping the order of precedence in accordance with the provisions of 20.2 of the Single Revised Text of the LGAP, under penalty of nullity of the notification. The only exception to this rule is that this requirement is established by the Supreme Decree of the sector.
- In consequence, as with the provisions on the implementation of the digital intake desks, it is observed that in the matter of digital claims, the provisions of Law 31170 are not consistent with the objectives of the LGD and its Regulation, considering that this final rule establishes the implementation of a Single Electronic Mailbox for every citizen. Further, under the Single Revised Text of the LGAP, the mandatory nature of electronic notifications means they should only be disposed by supreme decree of the corresponding sector and with the favorable opinion of the Presidency of the Council of Ministers and the Ministry of Justice and Human Rights.
2. Digital signatures
- The entities will implement digital signatures in a mandatory way and adopt internal rules for this purpose. Digitally signed electronic documents have the same value, as well as legal and evidentiary effect, as physical documents printed and signed in handwritten form by the official and public servant.
- At the end of the implementation period of the digital intake desk service, regulated by this law, Public Administration entities can exchange electronic documents only if they have the respective digital signatures of the senders.
- The National Registry of Identification and Civil Status (RENIEC in Spanish) provides public entities with digital certificates for the creation of signatures of public officials and servants.
- The Law also makes no mention of the national digital signature platform, Firma Peru, provided for in the LGD Regulation, which allows for the creation and validation of digital signatures within the framework of the Electronic Signature Official Infrastructure (IOFE in Spanish), for the provision of digital services provided by public administration entities.
In conclusion, although Law 31170 provides for the implementation of digital services in favor of citizens, we note that the provisions of this rule have not been consistent with the provisions recently established in the LGD Regulation that are more comprehensive and technical in nature. However, we believe that the Presidency of the Council of Ministers, through the Digital Government Secretariat, should specify the scope of the integration of these platforms in the relevant rules.
We trust that this information will be useful to you and your company. If you require legal advice on this issue, please do not hesitate to contact us.