Will Legislative Decree No. 1245 really guarantee the safety of the pipeline infrastructure?
Law No. 30506, in article 2) numeral 2) literal a) provides that the legislature delegates to the executive the power to legislate with the purpose of establishing clarifications and normative modifications in criminal matters, particularly with respect to the affectations to the infrastructure, facilities, establishments and means of transportation of hydrocarbons in the country, issuing legislative decree no. 1245 published in the official gazette “el peruano” dated November 06, 2016. It modified articles of the criminal code to guarantee the security of the infrastructure of the norperuvian pipeline, including hydrocarbons and their derived products as movable goods that can be subject to simple theft (art. 185 penal code) and aggravated theft (art. 186 penal code). It included numeral 12, stating that it will be punished with imprisonment of not less than three nor more than six years if the theft is committed “on goods that are part of the infrastructure or public or private facilities for the exploration, exploitation, processing, refining, storage, transport, distribution, commercialization or supply of gas, hydrocarbons or their derived products in accordance with the legislation on the matter. 206 penal code), with a penalty of not less than one year and not more than six years, introducing paragraph 7) “if the conduct affects the infrastructure or public or private facilities for the exploration, exploitation, processing, refining, storage, transportation, distribution, commercialization or supply of gas, hydrocarbons or their derivatives…”. 281 penal code) with a penalty of not less than six nor more than ten years for the one who creates a danger to the common security, performing any of the following conducts: introducing paragraph 1) attempts against factories, works, infrastructures, installations destined to the production, transmission, transport, storage or provision of sanitation, electricity, gas, hydrocarbons or its derivative products or telecommunications” and finally in the crime of hindering the operation of public services (art. 283 penal code) introduces “whoever, without creating a situation of common danger, impedes, hinders or obstructs the normal operation of transport or public services of telecommunications, sanitation, electricity, gas, hydrocarbons or their by-products shall be punished with imprisonment of not less than four nor more than six years”.
In the first place, we must analyze that Legislative Decree No. 1245 introduces modifications to the basic and aggravated criminal type of the different crimes mentioned in the preceding paragraph, having as a novelty the stiffening of the penalties for these crimes. Then, our first question would be : does the stiffening of the penalties or the increase of the quantum of the same, produce a decrease in the crimes? The categorical answer is no, it has been proven ad nauseam in the various experiences of international criminal legislation and dogmatics, concluding that the toughening of penalties is a failed criminal policy and does not tend to reduce the crime rate in any state, much less serve as a repressive means to reduce crime, the efficiency of the penalty is not in the severity but in its legal effectiveness, and criminals should be arrested and the criminal law correctly applied with all the ius imperium of the law.
Secondly, in our opinion, the main purpose of the legislative decree is to fight the sabotage that the various oil companies whose operations are located mainly in the jungle of Peru have been suffering, specifically due to the vandalic acts of pipe cutting committed by third parties outside of the oil operation, said pipe cutting has been occurring more frequently in the last five years and due to the fact that the state company Petróleos del Perú s. a. has denounced that the last five oil spills have been due to acts of vandalism by cutting pipes and, above all, because it has recently declared an emergency, the Peruvian state has issued this legislative decree, which in our opinion does not attack the root of the matter but rather serves as make-up to try to combat the criminal offenses that oil companies constantly suffer in the Peruvian jungle.
Thirdly, the legislative decree seeks to patch up the 1991 penal code through these modifications, not applying a reform of modern penal dogmatics, much less obeying a real criminal policy, it seeks to try to update the law in the face of the obvious facts. In these cases, to punish the perpetrators of the crimes committed mainly against the infrastructure of the North Peruvian oil pipeline, which to date is paralyzed, the state did not know that there were these attacks against the pipeline, that the pipe was cut with semicircular closures, that the clamps or clamps were violated, that they were broken or punctured, that they were broken or punctured, that they were broken or punctured. This was evidently committed by people who knew the area, who hid under the darkness of the night and the inaccessibility of the area committed these crimes. This has been demonstrated by the criminal practice, vandalic acts of pipe cutting that are detected by the low pressure of the pumping or by the communication of the environmental monitors on the line or by information given sometimes by the inhabitants of the communities of influence or nearby where the incident of crude oil spill has occurred.
In fourth place, following the analysis of this order of ideas, it is also worth asking ourselves; what is the real intention of the pipeline cuts due to vandalism? Due to the experience of criminal practice and the constant acts of vandalism, we have been able to reach a conclusion: the leak occurs and the oil is collected by the alleged perpetrators of the crime in buckets or other containers (theft) to be taken to other areas where it is sold to unscrupulous persons (receiving). This pipe cutting generates the crime of aggravated damage to the pipeline infrastructure and this incident also leads to the crime of environmental contamination and finally generates self-employment on the part of the inhabitants, since the company immediately activates its contingency plan and has the obligation to hire the inhabitants to clean up the affected area, this is well known to the tax authorities, but the big problem arises in identifying and individualizing the perpetrators of the crime. The company proceeds to file a complaint against those responsible, but since the perpetrators cannot be identified, the process is archived and in some cases, where it has been possible to identify them, they are also archived, because they point out that the simple accusation of a witness does not create conviction, nor does the fact that the person has been seen at the scene of the crime prove that he is the alleged perpetrator of the crime. In other words, the problem lies in the incorrect application of the criminal and procedural norms, explaining to some prosecutors that at the preliminary level, only revealing indications are required and it is not required to have evidentiary elements that reliably determine the crime. This happens in the stage of the preparatory investigation, highlighting that in the criminal practice, they reveal in other cases, that the simple fact of being a member of a native community directly applies art. 15 of the penal code – error of cultural understanding conditioned, considerations that conclude that the community member is exempt from criminal responsibility because he acts according to his uses and customs, creating in the background a sensation of impunity due to the incorrect application of the penal types and the procedural norms, highlighting that if they wanted to apply the uses and customs as a source of the right recognized by the oit convention n° 169, it does not establish that the member of a native community can violate the fundamental rights established in the Peruvian constitution.
Finally, we are of the opinion that we must be positive and always look at the glass half full, with the only purpose that the legislative decree n° 1245, is applied according to the ius imperium of the law with the purpose of being able to condemn with drastic penalties to the authors of criminal offenses to guarantee the security of the infrastructure of the northern Peruvian pipeline, always respecting the environmental norms and policies that all the companies in Peru must have.