The Protocol against the smuggling of migrants by land, sea and air, supplementing the United Nations Convention against Transnational Organized Crime, defines smuggling of migrants as “a crime involving the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State of which the person is not a national or a permanent resident”. Smuggling of migrants constitutes a crime against State sovereignty and migratory order in the country of origin, transit and destination.
In accordance with the international definition as seen in the Protocol against smuggling of migrants by land, air and sea, supplementing the UN Convention against Transnational Organized Crime, the Penal Code (modified by Article 2 of Law 28950, published January 16, 2007) typifies this crime in the following way:
Article 303 - A - Third - Degree Criminal Offense of Smuggling of Migrants
The person who promotes, favors, finances, or facilitates the illegal entrance or leaving of the country by another person, with the direct or indirect objective of gain profits or other beneficial gain for himself, herself or a third party, will be incarcerated for no less than four nor more than six years.
Article 303 - B - Second - Degree Criminal Offense of Smuggling of Migrants (Elevated Crime)
The sentence shall not be less than four nor more than eight years in accordance with Article 36 sections 1), 2), 3), 4), 5), of the Penal Code, specifying:
1. - The criminal agent is a public official and commits the crime in the performance of his/her duty.
2. - The criminal agent is a promoter, employee, or representative of a social or business organization, and takes advantage of his or her condition in order to commit the crime.
3. - There exists more than one victim.
4. - The victim is between 14 and 18 years old, or has a mental or physical disability.
5. - The crime is committed by more than one person.
6. - The criminal is a spouse, cohabitant, adoptive parent, legal guardian, fourth degree blood relative or second degree family relative, or is a caretaker of the victim for whatever motive, or lives with the victim in the same household.
First-Degree Criminal Offense of Smuggling of Migrants (Elevated Crime), prison sentence will be no less than 25 years when:
- The crime involves the death of the victim, or serious injuries that affect the life and the safety of the person in question.
- The transport conditions put at risk the victim’s physical and psychological health.
- The victim is less than fourteen years of age, and suffers either temporarily or permanently from a mental or physical disability.
- The agent is part of a criminal organization.