Octopus Cybercrime Community

Paraguay has no independent or specific legislation to punish cybercrime. The legal framework to punish crimes committed through the use of technology and information systems is contained primarily in the Criminal Code (Law No. 1160/98) and various laws and ordinances nationwide, an important breakthrough was the enactment of  the Law No. 4439/11  that introduces some crimes regarding technology to the criminal law.

The offenses related to the use of information and communication technologies that are sanctioned and punished under the Criminal Code (Law No. 1160/98) and general substantive law in Paraguay are the following:

Illicit access to computer systems in Art. 174 b of the Criminal Code.

Illicit access to data in Art. 146 b of the Criminal Code.

Illicit Interception is contained in Article 146c of the Criminal Code (Law No. 4439).

Data interference in Art. 174 of the Criminal Code criminalizes the interference and modification of data. The attempt is also punished pursuant to paragraph 2 of Art. 174.

System interference in Art. 175 of the Criminal Code provides for the figure of 'sabotage of computer systems'.

Art. 249 of the Criminal Code punishes the manipulation that interferes with a data processing in accordance with Art. 174 subsection 3.

Misuse of devices provided for in Art. 6 of the Budapest Convention, Art. 146d of the Criminal Code

With respect to the computer crimes (computer forgery and computer related fraud). Art. 248 of the Criminal Code. Art. 248b punishes the falsification of debit or credit cards and other electronic means of payment.

Computer fraud, such conduct is also criminalized in Art. 188 of the Criminal Code

Child pornography: the legislation is quite broad and punishes this and other conducts referred to in Law No. 4439/2011.

The Criminal Code does not include a definition of ‘child pornography material’ in accordance with section 2 of Art. 9 of the Budapest Convention.

Art. 140 Section 1 of the Criminal Code punishes the production of publications that represent sexual acts with the participation of persons under 18 years of age or the exhibition of their genital parts.

Section 2 punishes the organization, financing or promotion of public or private shows where people under 18 years of age participate in the performance of sexual acts.

Section 3 punishes the distribution, import, export, offer, exchange, exhibition, dissemination, promotion, financing, production and reproduction of publications. punishes the possession of publications containing the representation of sexual acts with the participation of individuals under 18 years of age or the exhibition of their genital parts.

On December 18, 2017, the Executive Branch enacted Law No. 6002 that modifies Article 135 of Law No. 1160/97 Criminal Code. This law adds a new article (Art. 135 b. Abuse by technological means) that punishes the conduct of ‘grooming’. The attempt may also be punished.

Infringements of intellectual property and related rights, Paraguay has ratified the vast majority of international treaties related to intellectual property and copyright. Likewise, in the area of​​copyright, Paraguay has the Law on Copyright and Related Rights (Law No. 1328/1998) and laws on trademarks, designs and industrial models.

Articles 31 and 67 of the Criminal Code punish aiding and set forth rules on extenuating, respectively.

Corporate liability, the legislation of Paraguay includes some hypotheses related to the representation of legal persons, companies or representatives of individuals.

Art. 16 of the Criminal Code provides for liability of appointed managers of companies or legal persons with the respective representation powers, as well as of individuals with tasks related to the public administration.

Sanctions and measures, the Criminal Code contains provisions related to classification of punishable acts (Art. 13); the types of penalties (Art. 37); the maximum duration of the custodial sentence (Art. 38).

• Powers of Prosecutors and Judges to request oral or written information of any public or private entity (Art. 228 of the Code of Criminal Law No. 1286-98)
• Powers of Prosecutors to integrate the required elements of an investigation in criminal proceedings (Arts. 52-57 and 228 of the Criminal Procedure Code Act No. 1286-1298)
• Procedure for the search and seizure of persons and objects (Art. 195-196 of the Code of Criminal Procedure Law No. 1286-98)
• Interception, search and opening and examination of correspondence (Arts. 198 and 199 of the Code of Criminal Procedure Law No. 1286-98)
• Interception of communications of the accused by the Judge (Art. 200 of the Code of Criminal Procedure Law No. 1286-1298)
• Inviolability of the secrecy of correspondence conducted by telecommunications services (Arts. 89 and 90 of Law No. 642/95 of 29 December 1995 Telecommunications)

One problematic area remains the lack of procedural legislation that correctly defines the powers of the judicial and police authorities.

The following legislation provides for the protection of human rights and safeguards:

• Due process and the rights of the parties in criminal proceedings (Art. 16 and 17 of the Code of Criminal Law No. 1286-98 and Art. 8 of Law No. 1 of 8 August 1989 approving and ratifying the Inter-American Convention on Human Rights, "Pact of San José Costa Rica")
• Rights of the accused parties (Art. 12 National Constitution of Paraguay and Art. 75 and Arts. 84-96 of the Code of Criminal Procedure Law No. 1286-98)
• Right to personal liberty (Art. 9. National Constitution of Paraguay and Art. 7. Of Law No. 1 of 8 August 1989 approving and ratifying the Inter-American Convention on Human Rights, "Pact of San José Costa Rica" )
• Right to trial and legitimate defense (Art. 9. National Constitution of Paraguay and Arts. 97-109 of the Code of Criminal Procedure Law No. 1286-98) Procedural rights (Art. 17 Constitution of Paraguay and Art. 9 of the Code of Penal Law No. 1286-98)
• Right of equal access to justice and before the law (Art. 47. National Constitution of Paraguay)
• Habeas Corpus (Art. 133  National Constitution of Paraguay)
• Habeas Data (Art. 135 National Constitution of Paraguay)
• Right to personal and family privacy, respect for private life and dignity and image of individuals (Art. 33. National Constitution of Paraguay)
• Right to the inviolability of documentary heritage and private communications (Art. 36 of the National Constitution of Paraguay and Arts. 89 and 90 of Law No. 642/95 of 29 December 1995 on Telecommunications and Art. 9 of Decree the Executive 14135/96)
• Right to expression of personality, freedom of speech and press (Arts. 25 and 26 National Constitution of Paraguay)

The following laws contain provisions relating to offenses committed through computer systems and the Internet, as provided in the sections on substantive and procedural law:

• Constitución de la República de Paraguay 
• Código Penal 
• Ley 4439/11  Delitos informáticos 
• Ley 1,680/2001 Código de la Niñez y la Adolescencia 
• Ley No. 2861/2006 que reprime el comercio y la difusión comercial y no comercial de material pornográfico utilizando la imagen u otra representación de menores e incapaces 
• Ley No. 57 del 20 de Septiembre de 1990 que aprueba y ratifica la Convención de las Naciones Unidas sobre los Derechos del Niño
• Ley No. 2134 del 22 de Julio de 2003 que aprueba el protocolo facultativo de la Convención de los derechos del niño relativo a la venta de niños, la prostitución infantil y la utilización de niños en la pornografía 
• Ley No. 642/95 de 29 de Diciembre de 1995 de Telecomunicaciones 
• Ley No. 2378/04 que aprueba la Convención para prevenir y sancionar los actos de terrorismo configurados en delitos contra las personas y la extorsión conexa cuando estos tengan trascendencia internacional 
• Ley 5994/17 que ratifica el Convenio de Budapest 

The Criminal Procedural Code of Paraguay contains a section on cooperation with foreign authorities and extradition (Arts. 146-150) where the procedure to conduct the extradition of suspects from its territory is established.

Paraguay is part of the Inter-American Convention on Extradition, of the Central American Extradition Agreement of 1924 and of the Treaty on Extradition of 1903, instruments of which mutually recognize and facilitate the criminal extradition of individuals subject to legal processes with the great majority of Latin American countries. Likewise, Paraguay has entered and ratified extradition treaties and conventions on international judicial cooperation in criminal matters with the following countries: Argentina, Brazil, Canada, Chile, Colombia, Costa Rica, Ecuador, Spain, United States, Mexico, Panama, Peru, Uruguay and Venezuela.

The official list of extradition treaties and conventions on international judicial cooperation in criminal matters that Paraguay has concluded and ratified is available on the website of the Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition.

The competent authority to investigate cybercrime in Paraguay is the Public Prosecutor through the Specialized Cyber Crime Unit of the Public Prosecutor's Office with the direct assistance of the National Police or the Judicial Police. The powers and attributions of the Public Prosecutor (Ministerio Publico) are contained in Articles 266-272 of the National Constitution and Articles 52 to 57 and 315 to 326 of the Criminal Procedural Code and its respective Organic Law.

The powers, duties and attributions of the National Police in investigative functions are provided in Articles 58 to 61 of the Criminal Procedural Code and the powers and attributions of the Judicial Police -which directly assists the Public Prosecutor (Ministerio Publico)- are contained in Articles 62 to 66 of the Criminal Procedural Code.

The extradition of accused parties is conducted through the provisions of the National Constitution of Paraguay and the provisions on extradition contained in articles 146 to 150 of the Criminal Procedural Code and the corresponding extradition treaty with the country where the accused party is being processed.

The authorities and official channels to carry out an extradition in Paraguay are the Office of Attorney General, the Ministry of Foreign Affairs, the Ministry of Justice and the Supreme Court of Justice.