On first case, They considered that the Argentine Customs lacks the authority to inspect cargo and control customs offences., in accordance with the provisions of the Mercosur International Land Transport Agreement (AICT); while the Federal Court of Cassation has understood that in said international treaty it is not excluded the possibility of customs service control functions from the country in transit.
I consider it necessary that we first conceptually address the transportation of goods in transit, as established by the Custom code. To this end, Article 296 of said legal body, determines that I understand by import transit, any operation by which imported merchandise without free circulation within our territory, circulates through it from the customs through which it entered and with destination to another exit, to be submitted to another destination., complementing the art. 297 about direct transit and inland transit.
The judicial authorities of Misiones considered that, pursuant to the corresponding International Land Transport Agreement, the customs of the transit countries can only check that the documentation is in order, as well as the seals of origin, without the power to inspect the transported merchandise and the veracity of its declaration, understanding that such power would be excessive and that it would only correspond to the customs of departure and final destination. The First Instance judge considered that such an operation could not be classified within those called transit according to our Customs Code, but only covered by the ATIT and the Treaty of Montevideo, granting it in that case a special different category, but focusing only on the tax aspect of the issue, without considering the control powers that the national Customs Service has over all merchandise transported within the customs territory. This was also understood by the Federal Court of Misiones.
But I must say that I agree with the assessment made by the Federal Court of Criminal Appeals, since instead of complementing the conceptual considerations of the rules in alleged conflict, emphasis was placed solely on the nature of the transit protected by a regime that, while aimed at facilitating trade between the signatory countries of the agreement, does not in any way exclude the legal powers of the customs authorities of the country through whose territory the transit is carried out. In this sense, let us remember that the legal asset protected by the criminal type of smuggling, aims at the adequate control that Customs has over the merchandise, both in its entry, exit and transit, under an egalitarian regime and without being subject to mere fiscal considerations; sinceor is it tax collection that is protected?But the proper verification control of the merchandise that enters, leaves and circulates through the customs territory.
On the other hand, the concurrence of international standards (Treaties) with internal standards, It is well defined by the National Constitution, both in its origin through article 31 and since its reform in 1994, regarding the preeminent character of the International Treaties; this situation motivated the assessment taken by the judges of origin of this case, in consideration of dismissing the control powers of the Argentine Customs, considering that the ATIT and the Montevideo Treaty excluded the national customs service from control over the merchandise because it is a transit customs and not a destination customs.
Now, observing the provisions of the ATIT, Annex I (Customs Aspects) Chapter IV, art. 7, the power of the Customs of the transit country to verify the transport and its content is clearly established. And furthermore, article 17 of Chapter IX must be interpreted as meaning that the Customs of the border crossing has control powers; and by art. 19, paragraph 1, Chapter XI, always following the ATIT, that is, an International Treaty, it is very clearly determined that if the Customs of any country (obviously also that of the border crossing) were to detect the commission of any customs offense, it may adopt the legal measures corresponding to its own legislation; thus, it categorically establishes the control power even of the Customs of the transit country, since it does not mention any exclusion in this regard. Therefore, from a constitutional point of view, there is no limit to the appropriate controls at border crossings.
It could be wrong to interpret that the objective of the signatory countries of the ATIT and the Montevideo Treaty, when signing these legal instruments to facilitate trade, considered the exclusion of adequate controls that could prevent and suppress possible illegal acts, especially taking into account the possibility that on such occasions arms, ammunition, narcotics and even people were transported; without excluding other possibilities, as was the case in this case with counterfeit merchandise; since International Treaties must be interpreted in good faith (art. 31 Vienna Convention) and I would add, considering that legal norms cannot serve as an excuse or instrument to evade adequate customs controls on the entry, exit and transit of merchandise. Furthermore, in the case at hand, the applicable legislation in force (Law 26.458) is clear regarding the prohibition of import or export of counterfeit merchandise, whether under the definitive or suspensive destination regime.
In accordance with the above, I consider the legal treatment given to the case by the First Instance Judge and the corresponding Federal Court of Posadas to be inadequate, since I consider that they wrongly focused on the case without considering the conjunction and harmonization of norms, as well as those of the ATIT cited; fully adhering to what was held by the Federal Court of Criminal Cassation in relation to the authority of the Customs Service of the border crossing for the correct verification, control and eventual determination of any customs offense. It would be illogical to consider the State's renunciation of controlling what transits through its territory.
Author: Dr. Guillermo Sueldo | [email protected]
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
