General proposals for the project to amend criminal and criminal procedure regulations (immediate prosecution) in cases of flagrante delicto, in the context of the public security crisis.

In Peru we are currently suffering the onslaught of three major pandemics: 1. the health crisis; 2. the economic crisis; and 3. the security crisis.

The security crisis is certainly not a recent phenomenon in our country, but it can be corroborated as accentuated as it is the result of the sum of the first two crises mentioned (health and economic), which clearly translates into the high rates of assaults, robberies and armed murders, committed at any time, anywhere and at any place, and which clearly translates into high rates of assaults, robberies and armed murders, This clearly translates into high rates of assaults, robberies and armed murders, committed at any time, in any place and against any type of citizen, putting the guardian institution (the PNP) in a situation of impotence before the overflow of its functions and a justice system that allows the rapid release of criminals who are arrested committing crimes with firearms – who, of course, return to crime immediately – and diminishing the preventive capacity of the police; and diminishing the preventive capacity of the serenazgo services, which must carry out their public security work without the capacity to carry weapons in the face of armed criminals.

This situation has escalated to such a level that it is no longer uncommon to see criminals showing and exhibiting their illegal weapons on social networks, in attitudes that can be seen as a total mockery of the national security system. It even happens that the main advice given by police authorities to citizens in case of armed robbery is to hand over all goods without offering resistance in order to avoid exposing personal integrity. However, it turns out that this advice no longer represents any guarantee in the face of the onslaught of widespread insecurity, since, as the media report, now criminals do not even show scruples to shoot their victims, even when the latter end up handing over all their belongings and shouting so as not to be harmed.

Faced with this panorama, few concrete proposals for a solution have been put forward by the different sectors of society. The legal sector, by the way, is one of those that constantly seeks formulas to help alleviate this serious problem; and we now join this effort by presenting to you our general proposals for the draft modification of the criminal law, the criminal procedure and the Immediate Process in cases of flagrancy.

1. The first step to be taken in this regard is the necessary declaration of an emergency in the Peruvian State’s Interior Sector. This, with the aim of establishing extraordinary economic and financial measures to strengthen the operational capacity of the Peruvian National Police and the Interior Sector, as well as to dictate more drastic measures to increase citizen security within the framework of the Citizen Security Crisis detected and established in the previous paragraphs.

2. Following this, urgent amendments should be made to criminal and criminal procedure regulations, emphasising Book Five, Section I of the Code of Criminal Procedure (the Immediate Prosecution), as follows:

2.1. The unauthorised carrying of firearms -contemplated in article 279-G of the Criminal Code- should establish a higher penalty than the existing one and limit the penitentiary benefits. This, taking into consideration the serious emergency circumstances that citizen security is going through in our country; a situation that has escalated to the extreme degree of perceiving the illegal possession of firearms as a previous step to, for example, qualified homicide. Thus, with the increase of this penalty, the State will be reinforcing the preventive and protective role of the penalty. In this sense, we consider that the first paragraph of the aforementioned article should be modified as follows:

“Anyone who, without being duly authorised, manufactures, assembles, modifies, stores, supplies, markets, traffics, uses, carries or possesses firearms of any type, ammunition, accessories or materials intended for their manufacture or modification, shall be sentenced to privation of liberty for not less than six nor more than fifteen years, no penitentiary benefit and disqualification in accordance with section 6 of article 36 of the Criminal Code”.

2.2. The unauthorised possession of firearms – indicated in article 279-G of the Penal Code – should be considered as an aggravated offence. This, taking into consideration what has been indicated in the previous point and under the current perception of the illegal possession of firearms as a prior step to the commission of any other crime, it is necessary to establish a more severe penalty for the agent whose illegal possession of firearms is established from the commission of any criminal act.

In this sense, we consider that a second paragraph should be added to the aforementioned article, which specifically states the following:

When the agent commits any criminal act making use of the aforementioned firearms of any type, ammunition, accessories or materials intended for their manufacture or modification, he shall be sentenced to imprisonment of not less than fifteen nor more than thirty-five years and no penitentiary benefit shall be applicable. If the penalty for the criminal act is greater than the penalty contemplated for the offence under this Article, the more severe penalty shall be applied, in accordance with Article 49 of this Code.

2.3. The unauthorised carrying of firearms – contemplated in article 279-G of the Criminal Code – should clearly indicate that its configuration will be established with the mere mediate possession, as indicated in the Nullity Action N° 345-2018, Lima East. In this regard, we consider that a paragraph should be added to the aforementioned article that specifically states the following:

“The unauthorised carrying of firearms is configured with the sole mediate or immediate possession, even photographs or videos of the agent serving as proof of this.”.

2.4. The above will help to ensure that the type of flagrancy established in Article 259, numeral 3 of the Code of Criminal Procedure (identification of the agent by audiovisual means, devices or equipment with whose technology his image has been recorded) can be applied more effectively against criminals who commit illegal possession of firearms, it being necessary to modify this numeral in order to extend the time in which the agent who commits the aforementioned offence can be found:

3. The agent has fled and has been identified during or immediately after the perpetration of the punishable act, either by the injured party or by another person who has witnessed the act, or by audiovisual means, devices or equipment with whose technology his image has been recorded, and is found within twenty-four (24) hours of the punishable act. In the case of the offence of illegal possession of weapons, the time elapsed until the capture of the agent may be up to 180 days.

2.5. Thus, any offender who is identified as committing (in flagrante delicto) the crime of illegal possession of firearms may be subject to the Immediate Prosecution provided for in Articles 446, 447 and 448 of the Code of Criminal Procedure.

2.6. With regard to the application of the Immediate Process in cases of flagrante delicto for the crime of illegal possession of firearms, it is necessary to point out the following:

• That, police custody will have a maximum period of 24 hours.
• That, the request for the initiation of the Immediate Prosecution by the Prosecutor – in a case of flagrancy of illegal possession of firearms – will be made within a maximum period of 24 hours, under responsibility and containing unquestionable evidence of the commission of the crime.
• That, the Judge of the Preparatory Investigation will carry out the single hearing of initiation within a maximum period of 48 hours, as indicated in article 447, numeral 1 of the Code of Criminal Procedure.
• That, Article 447, paragraph 3 of the Code of Criminal Procedure should be amended to indicate that the opening hearing may not be used as a pretext to urge the application of the principle of opportunity, a reparatory agreement or early termination, if the Prosecutor’s request is for flagrancy of illegal possession of firearms.
  In this regard, this paragraph shall be amended as follows:

“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 for illegal possession of firearms.”

• That the single hearing for the initiation of the immediate proceedings cannot be postponed and that the order resolving the request for immediate proceedings must be pronounced, unpostponable, at the same hearing for the initiation of the proceedings.
• That, following the decision to initiate immediate proceedings, the Prosecutor shall proceed to file an indictment within a maximum period of 24 hours, under the responsibility of the Prosecutor. In the same way, to influence the functional responsibility of the Preparatory Investigation Judge for the sending of the day’s proceedings to the Criminal Judge.
• That, in cases of flagrancy of illegal possession of firearms, 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 extending up to a maximum of 72 hours. At 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.
• That, in cases of flagrante delicto for illegal possession of firearms, the trial will be held within a period of no more than 48 hours until the issuing of the sentence, which will be immediately enforceable, without affecting the right of appeal of the parties.

2.7. Finally, it will be necessary for the Judge, in the Sentence he issues, to order the Public Prosecutor’s Office in charge of the execution of all actions leading to the recovery of any property that has been stolen, altered or damaged to cause of the offence of illegal possession of a firearm.

In the midst of the gloomy scenario that has been described, we have held general elections in our country; an event of several months in which the different candidates to the Presidency of the Republic or to the Congress, have deployed their campaigns in a variety of different ways. offerings and proposals for improvement of the conditions in which we citizens find ourselves, surrounded day by day by the three great pandemics identified at the beginning of this text.

None of these proposals has resonated with citizens as much as the hope of showing greater severity against crime and against insecurity in general. And this is so because ordinary Peruvians, those who go out to work every day and have to interact in the streets, recognise the shortcomings and weaknesses of our security system, with overburdened police, criminals caught and then released, recidivism in assaults, robberies and death, and the lack of a clear and effective security system. general unease at the prospect of being trapped, in addition, by the COVID pandemic and the economic crisis.

For these reasons, we consider it pertinent to apply the aforementioned measures and legal modifications; especially to combat such a pernicious crime as the illegal possession of firearms, which, in our opinion, is the starting point for rampant delinquency. A crime which, if dealt with correctly, can perfectly well be repressed in an effective manner due to its flagrancy, in a rapid manner with the use of the Immediate Prosecution and in a decisive manner with the stiffening of its penalty, which could mean not only the improvement of the way in which the State faces one of its greatest security crises in history, but also – in an immediate manner – the eradication of crime that uses firearms in short and affordable periods of time.