General proposals for the bill introducing legislative reforms aimed at discouraging the theft and robbery of mobile telephone equipment

A. PROBLEMS OF THE CURRENT SITUATION

With the advance of technology, the population has been acquiring cellular type goods because they have become necessary artifacts for the development of daily communication, work, organization and leisure activities, thus becoming very valuable goods both for their usefulness and their cost. In this sense, the possession of such goods has become an incentive for the commission of crimes of theft and robbery (with generally atrocious consequences for the victims), and also crimes of receiving, the same that are committed when acquiring the cellular equipment resulting from the two original crimes. This, in good account, becomes a business of commercialization and trafficking of cell phones with which its operators obtain great profits with relatively low risks, being able to move approximately US$550,000.00 (five hundred and fifty thousand US dollars) daily in Latin America, according to a report of the International Police Intelligence (INTERPOL).

For this commercialization cycle to work, illicit markets are fundamental as they are spaces where criminals can access cash – from a receiver – in exchange for the cell phones obtained through robbery or theft, which will later be sold by the receiver with the appearance of legality, even becoming tools for committing other types of crimes such as extortion. These illegal markets are currently very busy as they are places dedicated entirely to the sale of cell phones of dubious origin and easy access, with costs lower than the real value they have in the formal market, which encourages the occurrence of new thefts and robberies, thus completing what we could call a perverse circle of stolen cell phones.

According to the latest information provided by the Supervisory Body for Private Investment in Telecommunications (OSIPTEL), while for the first half of the year.

In 2019 the number of stolen cell phones reached 1’136,956, during 2021 this figure reached 1’350,352, and between January and April 2022 (the first four months of the year), this figure has already reached 524,971; meaning that, after the pandemic months, the theft of cell phones is increasing at a rate that will easily reach (and exceed) the pre-pandemic figures.

In view of this, all contingency strategies designed to date, including the issuance of Legislative Decree 1338 (which creates the National Registry of Mobile Terminal Equipment to prevent and combat illegal trade in cell phones), have proven to be inefficient, at least in light of the statistics, since the criminal incidence of robberies and thefts of cell phones with harmful and fatal consequences has not decreased and, rather, continues to be one of the greatest sources of citizen insecurity in our country.

Therefore, it is a priority for the State to legislate on the matter with regulations that punish and sanction in a harsher way the greatest incentive that criminals dedicated to the theft and robbery of cell phones have, that is: the reception of cell phones of dubious origin, which serves as food for the informal market of buying and selling of such equipment. That is to say, it is necessary to devise a better legal platform to combat the crime of receiving, which creates millionaire markets of informality and whose main suppliers are common criminals.

B. LEGISLATIVE MEASURES AIMED AT DISCOURAGING THE COMMISSION OF CRIMES OF THEFT – THEFT OF MOBILE TELECOMMUNICATIONS EQUIPMENT

i. Necessary legislative measures to be implemented in order to efficiently combat the crimes of theft or robbery of cellular equipment, as well as its reception.

  • Introduction of a qualified aggravating factor for theft and robbery offenses.
    An aggravating circumstance must be added to the crime of theft and robbery when the theft involves mobile telephony equipment, its components and peripherals; to this end, an additional circumstance of aggravated theft and aggravated robbery, respectively, must be included in articles 186 and 189 of the Criminal Code. Thus, these crimes would be equated with the crime of receiving, which does have an aggravating circumstance referring to telecommunication equipment; in the case of aggravated theft, the penalty would be no less than four and no more than eight years of imprisonment; while in the case of aggravated robbery, the penalty would be no less than twelve and no more than twenty years of imprisonment.
  • Increased penalties for the crime of aggravated receiving of stolen mobile telephone equipment..
    Currently, the punishment for the perpetrators of the theft of mobile telephony equipment is greater than the punishment for those who commercialize the mobile telephony equipment received. In other words, the “suppliers” of the criminal industry are punished more severely than “traders and final consumers” of the same, even when the latter are subject to an aggravating regime.Thus, we have that aggravated theft (art. 186º of the Criminal Code) has a penalty of not less than four nor more than eight years, that is, it is of greater intensity than aggravated receiving of cell phones (art. 195º numeral 2 of the Criminal Code), whose penalty has a maximum limit of six years. This disparity is not justified from the perspective of the principles of culpability, of proportionality of the penalties, nor of the preventive purpose of the same, for which reason the penalties for the crimes of aggravated receiving and aggravated theft should be homologated.Therefore, we propose that the criminal sanction for the crime of aggravated receiving provided for in art. 195º numeral 2 of the Criminal Code for theft – proposed as aggravated by this proposal – should be from four years to eight years of imprisonment, since this penalty is the same that corresponds to the perpetrators of the crime of aggravated theft, for reasons of proportionality.
  • Increased penalties for the crime of aggravated receiving of stolen mobile telephone equipment.
    Currently, the punishment for the perpetrators of mobile telephone equipment misappropriation is greater than the punishment for those who commercialize the mobile telephone equipment received. In other words, the “suppliers” of the criminal industry are punished more severely than “traders and final consumers” of the same, even when the latter are subject to an aggravating regime.Thus, we have that aggravated theft (art. 189º of the Criminal Code) has a penalty of not less than twelve nor more than twenty years, that is, it is of greater intensity than aggravated receiving of cell phones (art. 195º numeral 2 of the Criminal Code), whose penalty has a maximum limit of six years. Therefore, as in the grounds stated in the previous point, we consider that the criminal penalty for the receivers of mobile telephony equipment obtained through aggravated theft, since they have a higher criminal offense than the one attributed until now, should be higher than the current one, being that it should be at least equal to the one assigned to their “suppliers”, therefore, we propose that the criminal penalty for the crime of aggravated receiving of mobile equipment from aggravated theft should fluctuate between twelve to twenty years of imprisonment. In the case of theft of cellular equipment that has caused injuries, the penalty for the receiver should range from twenty to thirty years of imprisonment. And in the event that the theft has caused the death of the victim, the penalty for the receiver should be life imprisonment.at this point it is necessary to take into account the role played by the receiver in the commission of aggravated theft crimes. At this point it is necessary to take into account the role played by the receiver in the commission of aggravated robbery crimes, since the demand -and the profits they will have- these “suppliers” seek to achieve a more accurate result when appropriating cellular equipment using violence and threats.
  • The obligation to keep payment vouchers to verify the origin of cellular telephone products.
    In the mobile telephony equipment commercialization industry, two markets must be differentiated: the new equipment market and the second-hand or used equipment market. Both markets coexist and have legitimacy.the new cellular market originates from the manufacturer who distributes its products through distribution companies in a marketing chain that reaches the end consumer, taking care at all times of the legal obligation to issue and safeguard the proofs of payment of acquisition, as they are the ideal means to verify the origin of the products.

This obligation does not apply to end consumers, at least not in the sense of keeping (or requiring) proof of payment; thus, we have that, generally, such consumers do not have proof of payment to prove the origin of their purchases.

The second-hand cell phone market originates from end consumers who, not being legally obliged to keep their payment receipts, sell their equipment informally, generating a more flexible market, which is exploited by the parallel market for the commercialization of stolen or stolen products that we have been talking about since the beginning of this project.

Now, if we have that the payment vouchers prove the proximate origin of a product and with them we can trace the distribution chain of the same, being able to determine its licit and illicit origin, it is necessary that our legislation regulates the obligation of the final consumers of cellular equipment to safeguard the payment vouchers of the same.

In this sense, we propose the following legislative measures of secure exchange:

  1. The incorporation in the Payment Vouchers Regulation of the legal obligation of the final consumers of mobile telephony equipment to keep the payment vouchers for the purchase of their mobile telephony equipment until their transfer to another final consumer or dealer of used products, under penalty of being sanctioned. The corresponding sanction corresponds to the Tax Administration, in its discretionary power according to article 166 of the Tax Code.
  2. The incorporation in the Payment Voucher Regulations of the legal obligation of the final users or consumers to deliver the payment vouchers for the acquisition of their mobile telephone equipment at the moment of transferring them for valuable consideration or free of charge, under penalty of being sanctioned. The corresponding sanction corresponds to the Tax Administration, in its discretionary power according to article 166 of the Tax Code.
  3. Individuals or legal entities engaged in the sale of second-hand or used mobile telephony equipment are obliged to keep the payment receipts for the purchase of their mobile telephony equipment – delivered by their suppliers – for a period of 30 years from the date of purchase, under penalty of being sanctioned. The corresponding sanction must be established by the Tax Administration, in its discretionary power in accordance with article 166 of the Tax Code.
  4. Modification of numeral 7 of article 87 of the Tax Code to extend the term of conservation of payment vouchers for the acquisition of mobile telephone products for a term of 30 years from the date of acquisition, under penalty of being sanctioned. The corresponding sanction corresponds to the Tax Administration, in its discretionary power according to article 166 of the Tax Code.
  • The non-existence of proof of payment for mobile telephony equipment found in the possession of the receiver (in acts of keeping, hiding or selling or helping to negotiate) as a flagrante delicto:
    Taking into consideration that the criminal offense of receiving (article 194 of the Criminal Code) involves the actions of acquiring, receiving in donation or pledge, or keeping, hiding, selling or helping to negotiate, it can be inferred that of all these typical actions, four of them constitute permanent actions: keeping, hiding, selling and helping to negotiate, since their typical action extends in time in an unlimited manner. This condition makes it possible that the detection of the crime can be carried out with a wider range of opportunity than when acquiring or receiving. Under this premise, at the moment of carrying out operations against the crime of receiving, it should be requested and demanded that the intervened party -who is carrying out acts of keeping, hiding, selling or helping to negotiate cellular equipment- shows and hands over the payment receipts for the acquisition of the equipment (which they would be obliged to keep, according to the proposal of the present bill). If he does so, he would demonstrate the licit origin of these goods (or any other product); if he does not do so, it shall automatically be understood that the person involved has been found in the flagrant act of committing the crime of receiving, regardless of the time elapsed since he obtained the equipment (or other products), being able to apply to the particular case the immediate process indicated in articles 446; 447 and 448 of the Code of Criminal Procedure.It should be noted that any other case of operation against the crime of receiving that uncovers acts of keeping, hiding, selling or helping to negotiate products other than telecommunication equipment should be subsumed to this assumption.In this sense, the following legislative measures of secure exchange are proposed:1. Insert Article 194-B in the Criminal Code, which would indicate that the non-existence of proof of payment for the acquisition of any product at the time of being required in acts of keeping, hiding or selling, or helping to negotiate, constitutes flagrancy in the crime of receiving such product (or products), regardless of the time that has elapsed since its acquisition, so that, according to the regulations in force in this regard, the corresponding detention and treatment proceedings (immediate process) will be carried out; The defendant has the burden of proof to demonstrate the lawful origin of the products (in general) and/or of the mobile telephone equipment (in particular). Even more so if they had the legal obligation to keep the proofs of payment for the acquisition, according to the present proposal. This legislative proposal is in the spirit of what is established in the crime of money laundering, in which, through Plenary Agreement No. 03-2010, a series of indications were established that constitute incriminating evidence of the existence of the crime of money laundering and of the knowledge of the illicit origin, and it is up to the accused to disprove such incriminating evidence.

    This is when the importance of the payment vouchers becomes relevant, since they constitute a means of proof of the licit origin of the cellular equipment and their absence as proof of their illicit origin, as occurs in the case of illegal possession of weapons (which is proven by the lack of records in the DICSCAMEC, FFAA, CCFFAA or PNP).

Application of the immediate process in cases of flagrante delicto in the commission of the crime of receiving:

Any offender who is identified committing (in flagrante delicto) the crime of receiving, may be subject to the Immediate Prosecution provided for in articles 446; 447 and 448 of the Code of Criminal Procedure.

Regarding the application of the Immediate Process for cases of flagrante delicto in the crime of receiving, it will be necessary to point out the following:

  1. That, police custody shall have a maximum term of 48 hours.
  2. That, the request for the initiation of the Immediate Prosecution by the Prosecutor -in case of flagrancy of illegal possession of firearms- shall be made within a maximum period of 24 hours, under responsibility and containing the evidence that makes evident the commission of the crime.
  3. That, the Judge of the Preparatory Investigation will hold the single hearing for the initiation within a maximum period of 48 hours, as indicated in article 447, numeral 1 of the Code of Criminal Procedure.
  4. Article 447, paragraph 3 of the Code of Criminal Procedure should be amended to indicate that in the opening hearing the application of the principle of opportunity, a reparation agreement or early termination may not be requested if the Prosecutor’s request is in flagrante delicto for the crime of receiving stolen goods:
    • “3. At the aforementioned hearing, the parties may request the application of the principle of opportunity, a reparatory agreement or early termination, as appropriate. Except when the Prosecutor’s request is for flagrante delicto.”
  5. That the single hearing for the initiation of the immediate proceeding cannot be postponed and that the order resolving the request for Immediate Proceeding must be pronounced, without delay, at the same hearing for initiation.
  6. That, after the decision to initiate immediate proceedings, the Prosecutor must proceed to file an accusation within 24 hours, under responsibility. In the same way, the functional responsibility of the Preparatory Investigation Judge to send the proceedings of the day to the Criminal Judge.
  7. That, in cases of flagrante delicto, the single hearing for immediate trial must be held on the same day, as ordered by the initial part of article 448, numeral 1, of the Code of Criminal Procedure; avoiding the possibility of it being extended up to a maximum of 72 hours. In this hearing, the indictment and the summons to trial will be issued -if applicable- cumulatively, which may not exceed a maximum period of 24 hours.
  8. That, in cases of flagrante delicto, the trial will be held within 48 hours until the issuance of the sentence, which will be of immediate execution, which will not affect the right of appeal of the parties.
  9. It will also be necessary for the Judge, in the Sentence he issues, to order the Prosecutor’s Office in charge to carry out all actions leading to the recovery of any property that has been stolen as part of the commission of the crime of receiving.
  • Loss of ownership of movable and immovable property owned by those prosecuted for the crime of receiving, including the assumptions of front men.:
    The process of forfeiture of ownership allows for the expropriation of any assets that do not have suitable proof of legality. For this purpose, it is sufficient to demonstrate the criminal activity and that the assets have no justification in lawful business, in order to require that the accused proves their lawful origin. If this is not done, all the unjustified assets will be confiscated, something that normatively also extends to the assets detected as of illicit origin that are in the possession and under the ownership of third parties (or front men).We have up to eight assumptions in which the extinction of ownership is applicable, which shows its flexibility and broad spectrum of application. For the specific case that is the subject of this bill (receiving cell phone equipment obtained through theft and robbery), it is proposed that the accused may be subject to the process of extinction of ownership; thus, the crime of aggravated receiving of mobile telephone equipment should be expressly included in the list of crimes that are within the scope of application of Legislative Decree No. 1373, with the purpose that the assets of the receivers that do not have a demonstrable lawful origin may be transferred to the State, extinguishing the ownership of the receivers over them. This will make it unprofitable to commit the crime of receiving, since the cost would be to lose the assets that do not have a demonstrable lawful origin. This process is feasible to be carried out for the specific case of the receivers of mobile telephony, since unlike figures such as confiscation (which is subject to a complete criminal process) it can be resolved even before obtaining a judgment in the criminal proceedings followed for the crime of receiving, due to its autonomous and more dynamic nature.
  • On the obligation to execute an extraordinary precautionary measure of seizure, in cases of loss of ownership due to aggravated seizure of telecommunication equipment.:
    Article 15.2 of Legislative Decree No. 1373 – Law of Extinction of Ownership, allows that, during the stage of patrimonial investigation, the specialized prosecutor may exceptionally execute precautionary measure of seizure, this, for reasons of urgency.Now, for the reasons already stated in extenso, we have that the crime of receiving telecommunications equipment (such as cell phones) is one of the main reasons and supports of the serious crisis of public safety that afflicts us today as a society. In this sense, it is necessary that the authority has sufficient tools to prosecute not only the commission of the crime itself, but also its objects and effects.therefore, our proposal is that, in order to accelerate the loss of domain that the receiving criminals have over the goods, objects, effects or proceeds of the crime of receiving mobile equipment, an amendment to the aforementioned Article 15.2 of Legislative Decree No. 1373 is made, in the sense that the aforementioned Article 15.2 of D.L. No. 1373, in the sense that during the stage of patrimonial investigation the specialized prosecutor may exceptionally and for reasons of urgency execute a precautionary measure of immobilization, seizure, inhibition or registration order on any of the goods, and in the case of aggravated crimes of receiving of telecommunication equipment, a precautionary measure of seizure must necessarily be executed on any of the goods of the defendant.
  • Disqualification of those convicted of the crime of aggravated receiving of stolen goods by declaring relative incapacity subject to guardianship.:
    The theory of the Economic Analysis of Law, among some of its rules for designing effective criminal sanctions, points out the following: “make the evil of the penalty outweigh the benefit of the crime”, that is, to prevent future crimes it is necessary that the motive that reprimands the penalty is stronger than the motive that seduces (crime): “The penalty must be made to be feared more than the crime is made to be desired, because an insufficient penalty is an evil without any benefit”. In this sense, in the case of cell phone receivers, in order to make the penalty more to be feared than to desire the crime, it is proposed to apply, in addition to the respective custodial sentence, a principal disqualification penalty consisting of their declaration of relative incapacity subject to curatorship in accordance with article 44, numeral 8, of the Civil Code, situation in which their curator will exercise those acts for the subsistence of him and his (dependents) provided for in the curatorship regime, such as alimony, child recognition, etc. This is based on the provisions of article 36 of the Criminal Code, which prescribes a series of disqualification penalties that may be applied as main or accessory, being that article 38 of the same legal body establishes the extension of the main disqualification penalty according to the crime committed, ranging from six months to perpetuity.in this sense, the person convicted of receiving will be subject to the curatorship regime provided in the Civil Code, with the limitations provided therein, without prejudice to exercise the right to alimony, child support, etc. The duration of this regime will be extended up to five years after the completion of the custodial sentence.

1. LEGAL BASIS:

2. “Interpol unveils potential profits from illegal cell phone trade in Latin America”
https://tinyurl.com/3wjssek9

3. https://repositorio.osiptel.gob.pe/handle/20.500.12630/250
(data revision carried out on 06/24/2022).

4.

  • Decree Law No. 25632 – Framework Law on Payment Vouchers, Article.
  • Tax Code, Article 97.
  • Tax Code, article 87, numeral 7.

5. SUPREME DECREE Nº 002-2005-IN – Regulation of Law Nº 28397 that regulates the surrender of civilian and/or war weapons, ammunition, war grenades or explosives.
WEAPONS IN ILLEGAL POSSESSION Weapons of civilian use and/or weapons of war in illegal possession are those that are not registered with the DICSCAMEC – MININTER, the Armed Forces, the Joint Command of the Armed Forces and the PNP, and therefore do not have the corresponding license.

6. Legislative Decree No. 1373, which establishes the following as its scope of application:
“… applies to all assets that constitute objects, instruments, effects or profits related to or derived from the following illicit activities: against the public administration, against the environment, illicit drug trafficking, terrorism, kidnapping, extortion, human trafficking, money laundering, smuggling, customs fraud, tax fraud, illegal mining and others with the capacity to generate money, goods, effects or profits of illicit origin or activities related to organized crime”.

7. Legislative Decree No. 1373, Article 32:
Article 32. Scope of the judgment
The judgment declaring the claim founded must be based on concurrent and reasonable indications, or on the pertinent, legal and timely evidence incorporated to the process. It must declare the extinction of all rights in rem, whether principal or accessory, as well as the nullity of any act on the property that is the object of the proceeding or the forfeiture of the property previously seized in favor of the State. Likewise, it orders that such assets be transferred to the administration of the National Program of Seized Assets (PRONABI) within twenty-four (24) hours of the issuance of the judgment. However, this entity may not dispose of those assets until the judgment becomes res judicata.

8. Legislative Decree No. 1373, Article 7.1:
a) When dealing with assets that constitute object, instrument, effects or proceeds from the commission of unlawful activities, unless by law they must be destroyed or are not susceptible of patrimonial valuation.
b) In the case of goods that constitute an unjustified increase in assets of a natural or juridical person, because there are no elements that reasonably allow considering that they come from licit activities.
c) In the case of assets of lawful origin that have been used or destined to conceal, cover up, incorporate assets of unlawful origin or that are confused, mixed or indistinguishable from assets of unlawful origin.
d) In the case of assets declared abandoned or unclaimed and there is sufficient information that they are directly or indirectly related to an illicit activity.
e) When the goods or resources in question come from the alienation or exchange of others that have their direct or indirect origin in illicit activities or constitute the object, instrument, effects or profits of the same.
f) In the case of assets and resources that have been affected within a criminal proceeding and that the origin of such assets, their use or illicit destination have not been subject to investigation, or having been subject to investigation, a final decision has not been taken on them for any reason whatsoever.
g) In the case of assets subject to inheritance by cause of death and the same are within any of the above assumptions.