In the City of Buenos Aires, on the 23rd day of the month of March 2000, the members of the Second Economic Criminal Court, Drs. César Osiris LEMOS, Claudio Javier GUTIERREZ de la CíRCOVA and Luis Gustavo LOSADA, under the presidency of the first of the aforementioned, assisted by the Secretary, Dr. Leticia Graciela DíAZ de CALAíN, are meeting for the purpose of making known the factual and legal arguments of judgment No. 2-S / 359 issued in case No. 00 entitled AMAT, Miguel Angel Alberto s/contraband» regarding MIGUEL ANGEL ALBERTO AMAT, DNI No. 334, Argentine, son of Alberto Amat and Rita Pereyra, born on September 18.380.635, 1 in Adrogué, Almirante Brown District, Province of Buenos Aires, single, with completed university studies in advertising, editor of an industrial advertising magazine by occupation and currently residing at De Kay 1967, Burzaco, Province of Buenos Aires.
The Attorney General, Dr. Jorge A. PEZZANO RAVA, and Dr. Norberto CAPUTO, in charge of the defense of the accused, took part in the debate.
From whose records,
RESULTS:
1. That on pages 253/257 back, the Prosecutor before the Instruction, Dr. Roberto H. LEANZA, formulated a request for the elevation to trial of this case considering Miguel Angel Alberto AMAT the author of the crime of export smuggling in degree of attempt and as the author of the same, in the terms of arts. 863, 865 inc. fy 871 of the Customs Code and 45 of the Penal Code.
2. That, as stated in the aforementioned request, on May 9, 1998, during a routine inspection of the vehicles that were preparing to board the ship Nicolás Mihanovich of the Ferrylíneas company, agent Marcelo ANTUíA asked Miguel Angel Alberto AMAT, who was driving the Fiat Uno vehicle, license plate SIV 458, to show him the documentation proving legal ownership of the vehicle. Upon this, the aforementioned AMAT showed him an identification card for the vehicle (green card), and ANTUíA noticed something strange on the back of it, so he asked AMAT to remove the plastic covering it, which he did, ANTUíA noting that on the back there was a paper stuck to it with similar characteristics to that usually found on that side of these types of documents. The agent then asked AMAT to hand over the green card in question, proceeding to remove the tape that adhered the paper to the document in question, verifying that the data on the original back of the green card, corresponding to the owner of the vehicle, did not match those that appeared on the attached paper.
AND CONSIDERING
I. Conclusions of the parties during the debate.
3. In his argument, the Attorney General considered that the criminal act investigated in the present proceedings was duly proven. This was because AMAT himself acknowledged the attempt to leave the country with his vehicle, bound for the Eastern Republic of Uruguay, through the company Ferrylíneas and that the accused himself acknowledged that when the documentation of said vehicle was requested by customs personnel, he showed a green card with a paper with similar characteristics to the original attached to the back, but with false data regarding the ownership of the vehicle. He emphasized that the accused explained how, through a computer process, he made the imitation of the back of the document in question. He added that the excuses given by AMAT regarding the reason that led him to carry out the adulteration were not acceptable, even if they were true, since the circumstances described did not justify the conduct of which he was accused. He stated that the act legally fell within the figure provided for in art. 865 inc. f), pursuant to art. 863 of the Customs Code, in an attempted degree (arts. 871 and 872 of the same legal body), in ideal competition with art. 292 2nd paragraph of the Penal Code. In light of this, he pointed out that pursuant to the rules of ideal competition enshrined in art. 54 of the Penal Code, the minimum penalty to be applied was three years in prison, in light of the penalty established by art. 292 2nd paragraph of the Penal Code. Therefore, he requested that the accused AMAT be sentenced to said penalty, which could be suspended. Likewise, he requested that the aforementioned be subject to the disqualifications provided for by art. 876 section 1 of the Customs Code, in its subparagraphs d, e, f -regarding the security forces- and h, requesting that the aforementioned subparagraph e be six months. All this, plus the costs of the process.
4. For its part, the technical defense of the accused pointed out that the fact had been correctly described by the trial prosecutor but that it disagreed with the legal classification given. In this regard, it stated that the green card was not adulterated since, once the paper prepared by AMAT was removed, said document was intact. It added that the acts that AMAT described in his statement regarding the preparation of the paper found on the back of the green card were not punishable since they were merely preparatory acts. It also emphasized that the copy made was so rough that it could not deceive anyone. Consequently, it stated that the act should not be classified as aggravated smuggling due to the adulteration of documentation, but as simple smuggling in the terms of art. 863 of the Customs Code, in the degree of attempt (art. 871 of the CA). For all these reasons, taking into account the lack of criminal records of his client, his cooperative attitude and the remorse he expressed, he requested that the legal minimum established by the aforementioned art. 863 be applied to him.
II. Description of the evidence gathered in the case
a) Statement of the accused
5. At the trial, Miguel Angel Alberto AMAT said that he fully ratified the statement he had given before the investigating judge. Nevertheless, he made some clarifications regarding the fact that he had purchased his ticket to Colonia, Republic of Uruguay, through a promotion by the company Pago Fácil. From there he had planned to travel in his vehicle to the city of Montevideo, where his girlfriend lived. He stressed that he was desperate to travel since he had had a fight with his girlfriend; so in order to go in his vehicle and take a bicycle to her, he used his computer to make an imitation of the back of the green ID card corresponding to the vehicle, recording his details there. He indicated that he had not made the transfer of the car because he lacked money and that at no time had it been intended to smuggle. Regarding the procedure, it was consistent with what was stated in the respective minutes.
b) Witness statements
6. María Cristina ROVEDA, who acknowledged her signature in the minutes on pages 3/12 and the green card that was shown to her, stated that on that date she was working as a customs supervisor in the port area. She stated that agent ANTUÍA was the one who detected the anomaly in the vehicle's documentation and that, in response to this, he summoned her. She stressed that when she arrived at the scene, the green card was already dismantled into three parts. She added that she took care of getting witnesses and the relevant procedural aspects. That ANTUÍA told her how he had noticed the adulteration of the green card and the process of dismantling it. As for the attitude of the accused, she stated that in her opinion he only became aware of what was happening when she proceeded to formally arrest him.
7. Marcelo ANTUÍA, who acknowledged his signature in the minutes recorded on pages 1/5 and 7/9 and the questioned green card, stated that on the day of the incident he was in the parking lot of the Ferrylíneas company checking the documentation of the vehicles that were to be shipped to Colonia, Uruguay. He stated that when AMAT showed up with his vehicle, the deponent asked him for the vehicle identification card, which was covered with a plastic that obscured the image of the same. That in response, he asked AMAT to remove the cover, noting that there was a paper stuck with adhesive tape to the back of said card. He stated that when said paper was removed, which had similar extrinsic characteristics to the aforementioned back, he noted, on the original back of the document, that the owner of the vehicle was not the named AMAT. He added that after that, he informed the shift manager of what had happened, who called two witnesses.
9. Carlos ATALA PIRIS, who acknowledged his signature on pages 3, 4 and 5 and the green card in question, said that customs personnel required him to show them some documentation. He stressed that when he arrived he saw a plastic case and the green card separated into two parts. He added that they told him what had happened and that there was also another witness.
III. Evaluation of the evidence
10. In accordance with the rules of sound criticism governing the assessment of evidence (art. 398 of the CPP), it has been duly proven, based on the testimony received and the relevant procedural documents, that on May 9, 1998, Miguel Angel Alberto AMAT attempted to take a Fiat Uno vehicle with registration number SIV 458 out of the country on the ship Nicolás Mihanovich of the Ferrylíneas company bound for Colonia, Uruguay, carrying and showing the customs agent ANTUA a vehicle identification card (green card) on the back of which was a paper attached, with extrinsic characteristics similar to the back of the original document mentioned above, in which the accused AMAT appeared as the owner of the vehicle, while the original had the details of another person.
11. It is noteworthy that the accused AMAT admitted the facts as they were narrated. In this sense, his statements represent a plain and simple confession that constitutes full proof of conviction, given that the other evidence gathered in the case - already specified - corresponds to them, granting them the due plausibility and consistency.
IV. Legal qualification and graduation of penalties
Dr. Cesar Osiris LEMOS said:
12. The act described in the preceding paragraphs typically falls within the case of aggravated smuggling provided for in art. 865 inc. f) of the CA, in accordance with art. 863 of the same legal body. In this case, the ruse required by the basic rule - art. 863 of the CA - is represented by the falsification - in the manner indicated - of the identification card of the vehicle driven by the accused AMAT. For its part, the figure of art. 865 inc. f) of the CA punishes anyone who, in any of the cases of simple smuggling - arts. 863 and 864 of the CA - commits the same by presenting to the customs service adulterated or false documents, necessary to complete the customs operation. This is a so-called complex crime since its structure always assumes the preexistence of the crime of document forgery contemplated in Title XII, Chapter III of the Criminal Code.
13. In the case at hand, the falsified document turns out to be a vehicle identification card (green card); such conduct is described in art. 292, second paragraph, of the Criminal Code, as it is a document intended to prove the authorization to circulate motor vehicles (art. 2 Decree-Law 22/6582, version Decree 58/1114). Since the customs operation that was intended to be carried out consisted of an export (exit from the country) of the vehicle already described, the aforementioned document appears to be necessary to complete the same, given that its possession authorizes circulation with the vehicle. It should be noted that AMAT was not allowed to drive the vehicle because the vehicle identification card was not in his name and had expired on March 97, 7 (see the legend on the front of the document stating that its possession certifies the right or authorization to use the vehicle and that when shown by the owner it has not expired). This shows that AMAT made the forgery in order to be able to freely drive the vehicle, when he could no longer do so for the reasons mentioned above.
14. It is not possible to agree with the argument of the technical defence that the application of the aggravating circumstance provided for in art. 865, paragraph f) of the CA would not be applicable due to the fact that the original document was not altered. In this regard, it should be noted that AMAT made a similar copy of the back of the green card using a scanning system, imitating the extrinsic characteristics of the aforementioned document and inserting its data into it, thus falsifying the information contained on the original back. Consequently, the forgery was consummated by creating an essential part of a document and by including data that did not correspond to reality. Nor will the defence's argument be accepted that the imitation of the document was crude and therefore unable to deceive anyone, since the mere observation of it shows the opposite (almost identical colouring and the same format and size). 15. The defenses put forward by the accused do not justify his criminal conduct, since the attempted journey could easily have been made without the vehicle in question. Consequently, AMAT is held responsible for the disvaluable action carried out, as simple and direct intent, and the person named must be held responsible as the author (art. 45 of the Criminal Code). I understand that with his actions the accused hindered adequate customs control -art. 863 of the CA- so that, once the conduct has been exhausted with the concretion of the action -in this case, hindering-, the act has reached the level of consummation.
16. Regarding the scale of penalties applicable to the case, I must make some clarifications. Art. 865 of the CA, in all cases, provides for a minimum prison sentence of 2 years and a maximum of 10 years. In the sub lite it is noted that AMAT, in order to carry out the smuggling attributed to him, committed the crime of forgery described in art. 292 2nd paragraph of the CP which establishes a minimum prison sentence of 3 years and a maximum of 8 years. In summary: while the crime of aggravated smuggling (final crime) is punished with a minimum of 2 years in prison, the crime of forgery in the hypothesis of the 2nd paragraph of art. 292 of the CP (medium crime) establishes a minimum of 3 years in prison. In this light, it does not seem logical to me to assume that, after committing the aforementioned falsification, AMAT managed to reduce the legal minimum that could be applicable to him by committing the crime of aggravated smuggling (from 3 years - art. 292 2nd paragraph of the CP - to 2 years - art. 865 inc. f of the CA-). Once the contradiction is evident, the solution to be given to the case will be based on the principles of reasonableness and equality before the law (since it is void to maintain that someone who only committed the crime of art. 292 2nd paragraph of the CP is liable to a greater minimum penalty than someone who also infringed another criminally punishable figure). Thus, I understand that an integration of the punitive scales of the aforementioned criminal types must be carried out; the applicable legal minimum must be three years in prison - cf. art. 292 2nd paragraph of the CP - and the maximum ten years in prison - cf. art. 865 inc. f) of the CA-. This conclusion does not turn the judge into a legislator, as might be assumed at first sight, but in situations such as the present one it is imperative to develop a solution that responds to the sense of justice based on the principles of reasonableness, proportionality and equality (in a similar sense, GJ Bidart Campos La interpretacion y el Control Constitucionales en la Jurisdicción Constitucional, p. 135)
17. That being said, for the purposes of quantifying the amount of the penalties to be imposed, the following elements of judgment must be taken into account, in accordance with the provisions of arts. 40 and 41 of the Penal Code:
a) the personality of the accused in light of the reports in the case file, as well as the good personal impression perceived during the debate;
b) the nature of the action committed;
c) the age of the accused, his education, habits and conduct before and after the crime,
d) the lack of police and/or judicial record of the accused.
18. In accordance with the above and not seeing any grounds for justification or innocence, I vote to sentence Miguel Angel Alberto AMAT to a penalty of THREE (3) YEARS of suspended imprisonment, as I do not consider it appropriate that the same be effectively served (art. 26 of the CP), plus the accessories provided for in art. 876-1º subsections. d), e), f) and h) of the CA, in the proportion determined therein, corresponding to setting at SEVEN (7) MONTHS the disqualification to engage in commerce described in the aforementioned subsection e). I do not consider it necessary to apply to the accused the provisions of art. 27 bis of the CP, since I consider the imposed penalties sufficient to prevent the commission of new illegal acts. Lastly, I vote to impose on AMAT the costs of the process.
V. Other issues
19. The regulation of professional fees for private lawyers involved in proceedings will be suspended until they prove their unique tax identification numbers (CUIT) and their qualifications for value added tax (VAT).
Drs. Luis Gustavo LOSADA and Claudio Javier GUTIERREZ from CARCOVA said:
I. We adhere to the vote of our distinguished colleague in everything that relates to the conduct attributable to the accused AMAT and the assessment of the evidence.
II. We will only have to disagree with regard to the legal classification of the act and, consequently, the penalties to be applied. In this understanding, in the opinion of the undersigned, the alleged act is susceptible to being included in the hypotheses of arts. 863 and 865 inc. f) of the CA, as author and in degree of attempt (arts. 861 and 871 of the cited legal text).
III. In art. 865 of the CA, both in its subsection d) in fine and in its subsection f), what is known in doctrine as the complex crime of smuggling is enshrined. Its characteristic lies in that, in a teleological relationship from means to end, it is composed of aggravating elements or circumstances that, by themselves, constitute autonomous criminal types. Since such crime is then integrated as a criminal unit or single infraction, the common rules of the concurrence of crimes are not naturally applicable to it (arts. 54 and 55 of the CP).
IV. The legislator, in the case of art. 865, subsection d) in fine, provided for the relationship between means (any other crime) and end (smuggling) in a generic manner, such that the consummation or attempt of any crime carried out in relation to the crime of smuggling will receive the aggravating factor in question. On the contrary, if the hypothesis of art. 865, subsection f) is verified - presentation before the customs service - any adulteration or falsehood that in itself constitutes a crime other than smuggling will yield to its specificity (art. 865, subsection f cited).
V. In the case in question, there is no doubt that the vehicle identification card issued by the respective Registry constitutes a document suitable to prove the legitimate ownership and possession of the vehicle. Nor is there any doubt that the card used in the case by the accused AMAT was adulterated (understood in the sense of altering a true document). Nor is there any doubt that it was shown to prove to the requesting authority the ownership of the Fiat brand vehicle that he was driving. In short, such exhibition constituted a necessary requirement to permit the export of said vehicle.
VI. Therefore, the conduct in this case is susceptible to being framed exclusively within the hypothesis of art. 865, paragraph f) of the CA, as the author and in the degree of attempt. In this last aspect, the defense's claim to consider AMAT's action as mere non-punishable preparatory acts must be rejected, since it is clear that the very characteristics of the facts - in terms of time and space - mediated the beginning of the execution of such action (art. 871 of the CA). On the other hand, the sophisticated preparation of the adulterated sheet - virtually identical to the original - is sufficiently significant to mislead as to its suitability.
VII. Taking into account the characteristics of the crime, the personality of AMAT evaluated in light of the reports in the case and the personal impression received during the debate, the lack of criminal records and other circumstances provided for in arts. 40 and 41 of the Criminal Code, the accused shall be sentenced to the minimum applicable scales of arts. 865, 876 and 1026, paragraph a) of the Criminal Code. In terms of the manner of serving the sentence, the prison sentence shall be suspended as it is not considered appropriate to carry it out (art. 26 of the Criminal Code) and the remaining sentences shall be served effectively (id.). The guidelines of art. 27 bis of the Criminal Code shall not apply as the sentences already applied are sufficient. In short, our vote is to CONDEMN the accused AMAT, as the author of the crime provided for in arts. 863 and 865, paragraph f) of the Criminal Code, in the degree of attempt, to suffer the following sentences:
a) TWO (2) YEARS IN PRISON, suspended upon fulfillment;
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed (art. 876 section 1, subsection d of the Customs Code);
c) SPECIAL DISQUALIFICATION FOR SIX (6) MONTHS for the exercise of trade (art. 876 section 1 subsection e of the Customs Code);
d) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces (art. 876 section 1, subsection f of the Customs Code);
e) ABSOLUTE DISQUALIFICATION FOR FOUR (4) YEARS to serve as a public official or employee (art. 876 section 1 subsection h of the Customs Code).
It's our vote.
For all these reasons, arts. 398 and 399 of the CPP, the court by majority
RESOLVED:
1º) TO CONDEMN MIGUEL ANGEL ALBERTO AMAT, whose other personal details are included in this document, as the author of the crime of aggravated export smuggling, in degree of attempt, provided for in arts. 863, 865 inc. f), 871 and 872 of the Customs Code, to suffer the following penalties:
a) TWO (2) YEARS IN PRISON, the sentence being suspended.
b) LOSS of the concessions, special regimes, privileges and prerogatives enjoyed (art. 876 section 1, subsection d of the Customs Code);
c) SPECIAL DISQUALIFICATION FOR SIX (6) MONTHS for the exercise of trade (art. 876 section 1 subsection e of the Customs Code);
d) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces (art. 876 section 1, subsection f of the Customs Code);
e) ABSOLUTE DISQUALIFICATION FOR FOUR (4) YEARS to serve as a public official or employee (art. 876 section 1 subsection h of the Customs Code).
2?) IMPOSE on the named AMAT the payment of the legal costs (articles 29 paragraph 3 of the Penal Code and 403, 530 and 533 of the Criminal Procedure Code of the Nation).
3?) SUSPEND the regulation of professional fees of private lawyers involved in proceedings, until they provide the Court with their respective tax identification numbers (CUIT) and their qualifications with respect to value added tax (VAT).
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