The Supreme Court of Justice of the Nation in the case: Chukwudi, Anthoni s/incident of extraordinary appeal, dated 11/11/21, ruled on the constitutional nature of the equalization of penalties established by art. 872 of the Customs Code, which constitutes an exception to what is established by the Penal Code in the case of an attempt.
In this case, Chamber II of the Federal Court of Criminal Cassation decided to partially uphold the appeal for cassation filed by the defense, declaring the unconstitutionality of article 872 of the Customs Code, partially annulling the contested sentence and resolved to remove the Third Economic Criminal Court, which sentenced the accused to four years and eight months of effective prison and accessories to the sentence, as co-author of the crime of attempted smuggling, aggravated by the fact that the drugs were intended for sale with the intervention of three or more persons and by the use of a false document.
Against this decision, the Attorney General filed an extraordinary federal appeal, because a sufficient federal issue had been raised and against the decision comparable to a final judgment regarding a law of Congress, in the case of art. 872 CA, basing the challenge on the understanding that Chamber II CFCP distorted the letter of the law, concluding that its decision was an unreasonable interpretation of the regulations applicable to the case, disqualifying it as a valid judicial act for being arbitrary in light of the doctrine and in pursuit of the guarantees of defense in court and due process.
The federal extraordinary appeal filed by the Attorney General was denied, which is why a complaint was filed, maintained by the Attorney General of the Nation.
The Court upheld the complaint and declared the extraordinary appeal admissible. It considered that the crime of smuggling does not require the effective violation of the control of the customs service, but rather preventing or hindering it, in accordance with art. 863 of the Customs Code. It also understood that the specific characteristics of the crime of smuggling and its attempt do not affect the debated constitutionality of the equalization of penalties, nor do they violate the principles of harm, culpability and proportionality of penalties in relation to and recognized by arts. 18 and 19 of the National Constitution and international agreements with constitutional rank as established by its art. 75, paragraph 22.
He pointed out that the regulations within the framework of a single and broad penal scale, allow the magistrate to determine the degree of punishment for the person seeking justice, taking into account the particularities of the case.
Based on all of the above and the constitutional principle of separation of powers, the Court unanimously resolved to annul the ruling of Chamber II of the Federal Court of Criminal Cassation in accordance with the criterion of specificity of the crime of smuggling upheld by the Drafting Commission of the Customs Code, which in the statement of reasons states: …” Art. 862 corresponds to art. 190, section 1, of the Customs Law, maintaining the criterion of punishing attempted smuggling with the same penalties as those corresponding to the completed crime, but introducing a variant wording that is considered technically more correct since it highlights that the comparison lies in the punitive aspect. The criterion of equal punishment, which is a long-established principle of legislation in the country and abroad (see, for example, French Customs Code, art. 409), has been maintained, since the nature of the crime of smuggling, in the most common cases, does not allow for differentiation between attempted and completed crime, as occurs in other common crimes. This justifies the departure from the rules of common criminal law.
We conclude that, as expressed by the Court, the departure from ordinary criminal law in the case of attempted smuggling is not in conflict with the provisions of the Criminal Code, which provides in its article 4 the possibility of departure from the provisions of article 44 of said legal body, in the case of crimes provided for by special laws.
In this order of ideas, we express that, although Chamber II of the Federal Court of Criminal Appeals leans towards the unconstitutionality of art. 872, it is necessary to point out that Chambers I, III and IV have established the declaration of constitutionality and the Highest Court maintains a restrictive criterion for the declaration of unconstitutionality of a law, according to its statements in the ruling in reference, (…) “the convenience or correctness of legislative solutions are not points on which the Judiciary can rule (Rulings: 324:3345; 328:91 and 329:4032)”. In this sense, it has been said that, no matter how broad the judicial powers are in order to interpret and apply the law: “…the constitutional principle of separation of powers does not allow judges the power to disregard what is provided by law with respect to the case, under color of its possible injustice or error…” (Rulings: 241:121; 342:1376). Only cases that transcend this scope of appreciation, to enter the field of the unreasonable, iniquitous or arbitrary, enable the intervention of judges (Rulings: 313:410; 318:1256 and 329:385, among many others)”. (Emphasis is ours)
Claudia Marinelli is Vice President of AAJC and Director of the Bachelor's Degree in International Trade at UAI
Alejo Basualdo Moine is a Member of the Institute of Customs Law and International Trade of AAJC
