1. As was duly reported on this portal (1), the National Executive Power modified the Article 1026 of the Customs Code by Decree of Necessity and Urgency 575/25, published in the Official Gazette of 13.08.2025 (2).
The reform establishes that said article will be worded as follows:
"The cases to be investigated for the crimes provided for in Section XII, Title I, of this Code will be substantiated:
a) in court, as regards the application of custodial sentences and those provided for in articles 868, 869 and 876, paragraph 1, in their subparagraphs a), b), d), e), h) and i), as well as in f) exclusively as regards the security forces;
b) before the administrator of the Customs in whose jurisdiction the act occurred, as regards the application of the penalties provided for in Article 876, paragraph 1, in its subparagraphs c) and g), as well as in f), except as regards the security forces. "
Thus, from this modification, the sanction linked to the confiscation of the merchandise subject to the crime of smuggling and/or the means of transport related to it, is no longer applied by the customs service, now passing into the orbit of the judiciary.
2. As can be seen from a simple reading of the transcribed article, what is known as "dual jurisdiction" applies to customs matters, whereby two proceedings are established for the same act, one in the judicial jurisdiction and the other in the administrative jurisdiction, determining the penalty that may be applied in each area.
Thus, the Explanatory Memorandum of Law 22.415, when referring to dual jurisdiction, refers to Law 21.898, pointing out that said law had resolved the division of the judgment of cases for customs offenses, reserving for the courts the application of some of the penalties provided for the crime of smuggling and attributing the application of the remaining penalties to the customs service, which already occurred in the previous regulations.
Thus, by transferring the application of the confiscation penalty to the judicial sphere, the effect of this "dual jurisdiction," which has always been harshly criticized, is somewhat reduced, and for this reason, this is a positive change.
3. Now, what will be the possible practical effects that this modification will generate?
Firstly, it should be noted that the immediate effect of confiscation is that it ceases to be considered an accessory penalty and becomes a principal penalty (3).
Thus, since it is a principal penalty, there is no doubt that in cases where the institute of suspension of the trial on probation is considered applicable (see art. 76 bis of the Penal Code), in addition to offering to repair the damage to the extent possible, it will also be necessary to abandon the merchandise, which could previously be debatable (4).
Furthermore, this situation should also prompt a change in domestic regulations regarding the feasibility of extinguishing criminal proceedings under Article 59, Section 6 of the Criminal Code, which establishes the so-called "comprehensive reparation of damages."
In this regard, both Provision No. DI-2023-131-E-AFIP-AFIP, and the subsequent General Instruction 5/2024 dated March 18 of the year (IG-2024-5-E-AFIP-DGADUA) established requirements linked to the merchandise for the purposes of the origin of any type of consent linked to this institute, which must be considered as repealed since customs no longer has any influence regarding its possible confiscation.
In another vein, this amendment also means that customs will no longer be involved in any decisions that may be made within the framework of a judicial proceeding related to the return of merchandise. That is, both deliveries prior to a final judicial ruling and those after the case has been closed (see Article 238 of the National Code of Criminal Procedure) must be resolved directly by the judge, regardless of the customs service's position on the matter.
Thus, if a court orders a dismissal or acquittal, the merchandise that is the subject of the alleged crime must necessarily be returned, regardless of whether the facts could be considered a possible residual customs violation that requires obtaining testimony for this purpose.
Furthermore, changes should be made regarding who is responsible for the custody of seized merchandise, as well as whether or not Article 1042 of the Customs Code applies, regarding the storage costs that typically arise when merchandise is seized in connection with a charge of smuggling.
Finally, this reform will lead to the development of case law related to the grounds for exclusion from confiscation provided for in sections a) and b) of Article 876 of the Customs Code.
Thus, it is necessary to analyze what is meant by the phrase: "when the owner or whoever has legal access to the merchandise should not be liable for the penalty"; as well as what the difference would be with the cause established in the following paragraph, which states "unless they belong to a person unrelated to the act and the circumstances of the case determine that they could not have been aware of such illicit use."
4. In conclusion, the reform discussed here will not only allow for a reduction in the time taken to apply the confiscation penalty, but will also initiate the elimination of the so-called "dual jurisdiction" system, which is often criticized, and will also have some interesting practical effects regarding the interference of the customs service in seized merchandise.
- https://aduananews.com/delitos-aduaneros-se-traslada-a-la-justicia-el-tratamiento-de-la-sancion-de-comiso/
- This amendment is part of the objective of Decree 575/25, which approves the new "Regime for the Conservation, Administration, and Disposition of Assets from Illegal Activities, Seized and Recovered in Criminal Proceedings Under National and Federal Jurisdiction, as Well as in Cases of Asset Forfeiture."
- In this regard, our Supreme Court, when referring to this penalty before the reform analyzed here, stated that "... the sanction contemplated in art. 876, section 1 for smuggling offenses... is accessory to the sentence of freedom (Rulings 321:2926 and 323:637)."
- See in this regard, ruling of the Supreme Court of Justice No. 3526/2015/CS1 “Tortoriello de Boero, Mónica Alejandra s/ smuggling article 863 – Customs Code” of 06/28/2018
Lawyer. Specialist in Criminal Law from the Universidad Austral. Professor of Customs Criminal Law at various public and private universities. Author and contributor to books and articles on this specialty. Currently, he is a partner at the Durrieu Abogados law firm, in charge of the Customs Criminal Law Department.