Octopus Cybercrime Community

Peru is one of the few countries of Latin America with an independent law that punishes and sanction cybercrime (Law 30096 on Computer Crime), which has been in force since October 2013 and subsequently amended by Law N° 30171, dated 10 March 2014 and adopts - to a certain extent - some of the substantive law provisions of the Budapest Convention.

Under Supreme Decree N° 010-2019-RE, dated 10 March 2019, the Peruvian Government ratified the Budapest Convention. This Convention was published in the Official Journal El Peruano dated 22 September 2019 and stated that the date of its entry into force was 01 December 2019.

The offenses related to the use of information and communication technologies that are sanctioned and punished under the current substantive law in Peru are the following:

Misuse of devices and information mechanisms (Art. 10 Law on Computer Crimes and article 220-B of the Criminal Code)

Illegal access to computer systems (Art. 2 Law on Computer Crimes)

Sexual Harassment (Art. 176-B of the Criminal Code)

Advocacy of crime (Art. 316-A of the Criminal Code)

Violations of the radio electrical spectrum (Art. 186.7 of the Criminal Code)

Attack against the integrity of computer data (Art. 3 Law on Computer Crimes)

Attack against integrity of computer systems (Art. 4 Law on Computer Crimes)

Illegal data trafficking (Art. 6 Law on Computer Crimes and Art. 154-A of the Criminal Code)

Attacks against Telecommunications (Arts. 162, 186.10, 222-A of the Criminal Code)

Attack against satellite signals (Arts. 186-A and 194-A of the Criminal Code)

Crimes against Intellectual Rights (Arts. 220-A, 220-B, 220-C, 220-D, 220-E, 222-A of the Criminal Code)

Crimes against the Public Administration (electronics and mobile phones in imprisonment centers) (Arts. 368-A, B, C and D of the Criminal Code)

Defamation (Art. 132 of the Criminal Code)

Racial, religious, sexual and genetic discrimination, age, disability, language, ethnic and cultural identity, clothing, political opinion or economic condition through information and communication technologies (Art. 323 of the Criminal Code)

Espionage (Art. 331-A of the Criminal Code)

Computer Fraud (Art. 8 Law on Computer Crimes)

Interception of computer data (Art. 7 Law on Computer Crimes)

Child pornography (possession, manufacture, distribution, exhibition, sale, marketing, publishing, importing and exporting) and pedophilia (Art. 183-A of the Criminal Code)

Solicitation of children and teenagers for sexual purposes by technological means (Art. 5 Law on Computer Crimes)

Identity Theft (Art. 9 Law on Computer Crimes)

Illegal Trafficking of Personal Data (Art. 154-A of the Criminal Code)

Misuse of Computer Records (Art. 157 of the Criminal Code)

Telephone Interference (Art. 162, 162-A, 162-B of the Criminal Code)

Violation of Privacy (Art. 154 of the Criminal Code)

The Law on Computer Crimes provides powers to attorneys, -pursuant to the urgency of the particular case and due diligence - to authorize the use of undercover agents in order to conduct investigations of the offenses provided in the law, as well as of every crime committed using information communication technologies. (Second Final Supplementary Provision of the Law on Computer Crimes)

The Law on Computer Crimes provides the power to the National Police of Peru to establish communication mechanisms with the governing bodies of the Government Attorney General´s Office and provide expertise in developing programs and actions for the proper prosecution of computer crimes and to develop programs for general protection and safety. (Third Final Supplementary Provision of the Law on Computer Crimes)

The Law on Computer Crimes includes the obligation of the National Police of Peru, Public Prosecutors, the Judiciary and private sector entities involved in the fight against cybercrime to establish operational cooperation protocols to ensure the exchange of information, transmission of documents and interception of communications. (Fourth Final Supplementary Provision of the Law on Computer Crimes)

The Law on Computer Crimes provides that the Peruvian State may conduct joint actions with other States in order to implement concrete actions and measures to combat massive attacks against information infrastructure and provides the establishment of necessary preventive mechanisms, including coordinated responses and exchange of information and best practices. (Seventh Final Supplementary Provision of the Law on Computer Crimes)

Law 27697 grants the authority to the public prosecutor for the intervention and control of communications and private documents and in exceptional cases, it grants constitutional powers to judges to access and control the communications of individuals who are the subject of preliminary investigations on cybercrime. (First Amending Supplementary Provision of the Law on Computer Crimes and Art. 1 of Law 27697)

Obligations of providers of public telecommunications services to facilitate the geo-localization of mobile phones and procedures of intervention, recording and wiretapping of communications within a term of thirty working days, as well as information about the identity of customers, customer registration numbers, telephone line and equipment, traffic of calls and internet protocol numbers in real time through a judicial warrant. Companies must keep the secrecy of communications, the intervention of which has been requested. Telecommunications providers must provide access, compatibility and the connection of their technology with the System for Intervention and Control of Communications of the National Police of Peru. (Third Amending Supplementary Provision of the Law on Computer Crimes and Art. 230 section 4 of the Criminal Procedural Code)

 

Scope of the criminal procedure and jurisdiction on cybercrime (Third Amending Supplementary Provision of the Law on Computer Crimes and Art. 473 c of the Criminal Procedural Code)

The protection of human rights and safeguards under the laws of Peru are the following:

Equality and due judicial process (Art. 24 f, g of the Political Constitution of Peru and Art. I Preliminary Title of the Code of Criminal Procedure)

Right to personal and family privacy and that public or private computerized information services do not provide information affecting private life. (Art. 6 Political Constitution of Peru)

Right to the inviolability of the home (Art. 9 Political Constitution of Peru)

Right to a legitimate defense (Art. 23 Political Constitution of Peru and Art. IX Preliminary Title of the Criminal Procedure Code)

Rights of accused parties (Arts. 1 to 20 and 37 to 41 of the Criminal Enforcement Code and Art. 71 of the Criminal Procedure Code)

Secrecy and inviolability of private communications and documents, seizure, interception or intervention only through a judicial judgment and with the guarantees provided by law (Art. 10 Political Constitution of Peru)

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

 

Constitution of Peru

https://web.oas.org/mla/en/Countries_Intro/Per_intro_fundtxt_esp_1.pdf

Law 30096 on Computer Crimes

http://www.leyes.congreso.gob.pe/Documentos/Leyes/30096.pdf

Ley N°30171- Amendment of the Law on Computer Crimes

http://www.leyes.congreso.gob.pe/Documentos/Leyes/30171.pdf

Criminal Code

https://web.oas.org/mla/en/Countries_Intro/Per_intro_fundtxt_esp_2.pdf

Criminal Procedure Code (Law Decree No. 957)

https://web.oas.org/mla/en/Countries_Intro/Per_intro_fundtxt_esp_4.pdf

Code for Criminal Proceedings

https://web.oas.org/mla/en/Countries_Intro/Per_intro_fundtxt_esp_3.pdf

Law 27697 that authorises the Prosecutor (Public Ministry) for the intervention and control of private communication and documents in exceptional cases

http://www.leyes.congreso.gob.pe/Documentos/Leyes/27697.pdf

 

Law 28493 that regulates the use of Unsolicited Commercial Emails (SPAM)

http://www.leyes.congreso.gob.pe/Documentos/Leyes/28493.pdf

 

Law 28774 that creates the National registry for mobile phones, establishes interdictions and penalizes the alterations and commercialization of mobile phones of questionable origin http://www.leyes.congreso.gob.pe/Documentos/Leyes/28774.pdf

 

Law 29499 that establishes the Electronic Surveillance of the prosecuted and convicted persons

http://www.leyes.congreso.gob.pe/Documentos/Leyes/29499.pdf

 

Law 29733 Data protection

http://www.leyes.congreso.gob.pe/Documentos/Leyes/29733.pdf

 

Law 29867 that adds to the Criminal Code certain articles regarding the security in the detention centres

http://www.leyes.congreso.gob.pe/Documentos/Leyes/29867.pdf

 

Law 30076 that modifies the Criminal Code, Criminal Procedure Code, Criminal Enforcement Code and the Code for Children and Adolescents and creates a registry and protocols for the scope of enforcing the public safety

http://www.leyes.congreso.gob.pe/Documentos/Leyes/30076.pdf

 

Law 30077 against Organised Crime

http://www.leyes.congreso.gob.pe/Documentos/Leyes/30077.pdf

 

Organic Law of Judiciary powers

https://web.oas.org/mla/en/Countries_Intro/Per_intro_fundtxt_esp_5.pdf

 

Organic Law of the Public Ministry

https://web.oas.org/mla/en/Countries_Intro/Per_intro_fundtxt_esp_6.pdf

In accordance with Article 512 of the Peruvian Criminal Procedure Code, the Office of the Attorney General is the Central Authority in matters of international judicial cooperation, which, when permitted by Treaties, communicate directly with foreign Central Authorities. The International Judicial Cooperation and Extradition Unit is the designated office in the Public Ministry of Peru and can be found at the following link: https://www.mpfn.gob.pe/ucjie/

 

Likewise, paragraph 5 of Article 521 of the Peruvian Criminal Procedure Code states the responsibility of the Ministry of Foreign Affairs to provide the necessary support to the Office of the Attorney General, which is the Central Authority, in its relations with other countries and international bodies, and to intervene in the processing of requests for cooperation made by national authorities. Similarly, if the Treaties so provide, to receive and make available to the Central Authority the requests for international judicial cooperation submitted by foreign authorities.

Legal Framework

The VII Book of the Criminal Procedure Code regulates the international judicial cooperation in criminal matters, among the main principal actions we have: International mutual legal assistance (Art. 528 to 537), extradition (Art. 513 to 527), prisoners transfer (arts. 540 to 544), among others.

Specific procedures and best practices for International Cooperation