As of General Resolution No. 2573/2009 (4/12/2009) and its amendments, it was regulated that the declarant is considered a faithful depositary, and must file and safeguard the customs documentation, as well as provide it upon request of the Federal Public Revenue Administration.
Currently, several Foreign Trade Auxiliary professionals (specifically Customs Brokers) have received notifications of proceedings that have been initiated for almost a decade, with their hearings scheduled for this year 2023.
I don't think anyone can be against proper controls by the Customs Service, but this is not a green light for such controls to go wild and violate clear constitutional guarantees. To clarify, various issues to be taken into account will be analyzed.
First question
The Prescription- Considering the dates of several of these proceedings (almost a decade prior to the current year 2023) and their current hearings, it is absolutely clear that the guarantee of defense enshrined in art. 18 of the National Constitution is violated in consideration of the reasonable time. Even more so taking into account the operational fact, the subsequent opening of the proceedings and the hearing, which makes it evident that the time has elapsed in excess, and even more so if there have been no acts that would have meant the interruption of the prescription.
For this reason, which we would say is elementary, the statute of limitations for the action must be taken into account. Furthermore, since the consequence is a sanction in accordance with an illegal type of the Customs Code (Art. 994), its treatment cannot be ignored.
In view of this and entering into the relevant consideration of the subject, the Customs Code provides with respect to the extinction of actions in matters of infractions (articles 929 to 946 CA) the causes for which said action is extinguished, among which is the prescription. That is, the passage of a certain time without said action having been initiated. In this sense, article 934 establishes that the prescription occurs after the passage of 5 (five) years, adding article 935 that said period begins to be computed from the first of January of the year following the event itself or, failing that, from the moment in which the illicit act is verified.
In accordance with the above, the problem now arises of considering the time elapsed before the opening of the summary and the new calculation from such a decision. That is, should the statute of limitations be considered suspended if the opening of the summary is carried out after 5 years have passed? Can the inaction of the person responsible for promoting the process harm the alleged offender? Is it truly legal to start calculating the period again once the interruption has been carried out, even if it occurred after 5 years have passed? And all of this must be analyzed in conjunction with the reasonableness of the time limits of criminal proceedings, such as those for customs violations.
If we understand that guarantees are a barrier to the arbitrary power of the State, we cannot fail to consider that public order is a major responsibility of the State and, since the issue of prescription in criminal matters is precisely one of public order, it is the State that has the greatest burden at the time of its fulfillment. Even more so when the majority of the guarantees regulated in our National Constitution and in our penal system are found in international treaties on human rights, and said guarantees must be transferred to the pertinent local penal instrumentation.
The Supreme Court established in the Mozzati ruling (1978) that the presumption of innocence and due process are integrated with a rapid and effective action in judicial decisions; and also the Mattei case of 1968 in explicit reference to the reasonableness of time in the criminal process. Therefore, the statute of limitations is the guarantee that allows the materialization of the right to be judged within a reasonable time. Sharing the reasoning, I understand that the statute of limitations has a procedural nature, as it entails the regulation of a maximum reasonable time in which a criminal action can be carried out and, beyond the fact that the claim remains latent, its exercise is hindered by the passage of time. That is, as a cut-off line until when an action can be carried out. It is also necessary to address the issue from the expectation of the State, as protector of the protected legal asset and promoter of the process, to obtain within a reasonable time the definitive result of a criminal process.
In the case of the order to open a customs investigation, which, in addition to the activities of the customs service, involves notifying the alleged offender so that he can assert his right, the order to open the investigation cannot be an instrument to interrupt the statute of limitations, but must contain, as an unavoidable requirement, the notification to the alleged offender; because if not, it would be left to the mere discretion of whoever decides to issue the order to open the investigation without considering the accused, which in my opinion is clearly unconstitutional because it would mean upsetting the very basis of legality of opening a customs investigation, since art. 1094 of the CA provides that the alleged offender must be summoned at the opening of the investigation (paragraph b), supplemented by art. 1101.
Second question
Reasonable Period of Trial- It is appropriate to begin by pointing out the importance of this issue, given the violation of a basic and fundamental right in any process. Thus, such consideration arises from an elementary guarantee of universal Human Rights, accepted for example in the American Convention on Human Rights, in whose text it is stated: “Everyone has the right to a fair hearing within a reasonable time by a competent, independent and impartial court or tribunal.” (Art. 8.1) Article 14, paragraph 3-c) of the International Covenant on Civil and Political Rights also recognizes the right of everyone accused of a crime to be tried without undue delay.
Both normative statements are part of the so-called block of constitutionality, as it arises from article 75, paragraph 22 of the National Constitution, thus granting them the corresponding constitutional hierarchy. And it is in this sense that there are no doubts about the obligation to apply the conventional provisions, as well as the duty to control the compatibility of the internal legal norms with the American Convention on Human Rights. Such consideration has already been pointed out by the Inter-American Court itself in the case “Almonacid Arellano and others vs. Chile” and by the Supreme Court of Justice of the Argentine Nation, highlighting as precedents the rulings “Mazzeo” (Fallos, 330:3248) “Ekmekdjian c/ Sofovich”. (La Ley, 1992-C-543) and Simón (Fallos, 328:2056).
In this regard, the following case law precedents are noted: SCJN, “Mattei”, Fallos, 272:188. 7 SCJN, “Camilo Mozzatti”, Fallos, 300:1102. SCJN, “Alderete”, Fallos, 324:1944. 10 SCJN, “Espósito”, Fallos, 324:4135. 11 SCJN, “Lépori”, Fallos, 324:1710. 12 SCJN, “Bartra Rojas”, Fallos, 305:913. 13 SCJN, “Arrastía”, Fallos, 326:4650 and “Barra”, Fallos, 327:327. 14 IACHR, Case of Genie Lacayo v. Nicaragua. Merits, reparations and costs. Judgment of 29 January 1997. Series C No. 30, para. 77.
It should also be noted that the matter in question does not represent such a complexity that it requires a necessary extension in time; and in most cases the professionals agree to pay a fine. However, the conduct of the Regulatory Entity has demonstrated a serious lack of diligence in giving an adequate resolution to the case, without taking into consideration the passage of time on the right to be heard and to obtain, within a reasonable period, a decision. Bear in mind the precedent IACHR, Case Bulacio vs. Argentina. Merits, reparations and costs. Judgment of September 18, 2009. Series C No. 100, paras. 114 and 115 and Case Myrna Mack Chang vs. Guatemala, Merits, reparations and costs. Judgment of November 25, 2003. Series C No. 101, para. 207. And of course, it is appropriate to include the Resources, for which the first act directed against the accused must be taken as a starting point (IACHR, Suárez Rosero vs. Ecuador Case, op. cit., para. 70.)
Considering the two issues mentioned above, it is imperative to maintain and combine both issues, since while the statute of limitations implies a limit for the prosecution for the application of a sanction, the reasonable period of time plays a role in considering the correct duration of a process, which results in the loss of the subsistence of the right to action by the State and therefore, the dismissal of the accused; this, with constitutional and conventional basis. Even when a process is extended in an inadmissible manner, even if in such circumstances the statute of limitations had not occurred, it is appropriate to declare extinction.
In this regard, it should be noted that in general terms, even though all administrative/commercial documentation must be kept for a period of TEN (10) years, according to the terms of art. 328 of the Civil and Commercial Code, certainly, the effects of such custody expire after (5) five years to enable the exercise of customs control. – according to the statute of limitations for actions that customs may take in tax matters as infractions -
It is in this sense that the Tax Court of the Nation took into consideration the prescription of an action due to the violation of the reasonable period. In this case, it was established in the case “Egea, that whatever the criteria adopted regarding the suspension of the course of the prescription, “the duration of the criminal process for (in this case) almost two decades, blatantly violates the guarantees of the reasonable period of the process and the right of defense” (Rulings: 327:4815). “Therefore, and in accordance with the criteria derived from such precedents, it is appropriate for this Tax Court to put an end to this case – as far as it is concerned here – by declaring the extinction of the criminal action due to prescription” (cfr. Ruling of the National Tax Court – Case 23.905-A – Burello, Alejandro Adrian vs. General Directorate of Customs s/ appeal” – ruling 10/12/2014)
Third question
Absence of a Fact Generating an Infringement- The issue is treated as a presumed serious fault that would be an obstacle to proper customs control. But in reality, the lack of digitalization has not prevented, at the appropriate time, said control. And it may well be considered a fault, its formality is fulfilled with the fine, so it cannot lead to coexistence in another new process, even under the rite of a disciplinary sanction. Which is contrary to the guarantee non bis in idem. On the other hand, when the party exercises its will to pay in the indicated terms, the law provides for the extinction of the action and the absence of antecedent. Showing that, if the effects of this extinction result in the fact being not registered in the nature of an antecedent, not only can it not be channeled as a record for future evaluations, but it cannot be applicable as data to open a summary of this kind.
In cases of involuntary errors or mere non-compliance, the sanction to be imposed should not be greater than necessary to prevent its repetition, and the fact may only be observed, without this weighing on a state of serious misconduct. In this sense, the eventual possible non-existence of having entered the digitalization of the file, cannot be considered a serious misconduct, since The customs service still has sufficient control powers, even without the digitalization of the document.
Furthermore, it is still necessary that for the correct configuration of an infraction, not only the material configuration of the fact is required, but also the subjective element of it, that is, the participation of its author, since the opposite would give rise to a dangerous, merely objective responsibility that is only determined by the consequence of a result. In view of the rulings of the highest national court, following the same line for the judgment of offences as for the judgment of crimes, it would not be appropriate to presume in advance the guilt of the alleged offender, requiring the reversal of the burden of proof, since it is also a constitutional principle.Errors: 311:2779; 303:1548; 297:215; 310:1822)
Consequently, it must be considered that the basis of punishment is found in the actions of the perpetrator, that is, the subjective element must be validly considered by the judge to arrive at the determination of the degree of punitive responsibility in the matter of infraction in advance and beyond the possibility of being merited for the graduation of the penalty in the terms of art. 915 and 916 of the Customs Code. And in this sense, cases like these should not violate constitutional rights and guarantees, relying on a public interest that has in no way been undermined.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
