The duty to ascertain the truth in Customs Sanctioning Law

1.By way of justification for my recurrence

I admit to being repetitive with the topic I will address here. I have already tackled this issue from various perspectives in two previous columns (“An invitation to rethink customs sanctions law from the perspective of truth”, and “Can we speak of a “burden of proof” in matters of Customs Sanctioning Law?”); and this, despite assuming that it is not a “popular” topic. 

However, “truth” is central to Customs Law and its sanctions—as in various aspects of life—both because of its impact on the potential infringement of the rights of individuals or legal entities who may be subjected to a sanction that should not be imposed, and because of its fundamental importance in the application of the sanctioning rule—given its purpose—when a sanction is not imposed when it should be. Indeed, the effectiveness of Law and Justice depends on it.

Despite this, efforts to ascertain the truth in the judicial process or administrative procedure have been given little consideration, even relativized (under the concept of "procedural truth").

While the attributes of truth of a postulate or hypothesis about the existence of a fact or a legal act, and the way to verify or prove it in a process or procedure is a substantial matter of procedural law, the influence it has on sanctioning matters is absolutely significant.

Even so, the jurisprudential treatment regarding the truth of the facts, and their corroboration in the process is underdeveloped, or is limited to repeating formulations that are not in accordance with the relevance of the issue in matters of Sanctioning Law, maintaining a civilist stance of opposition of interests, such as that which attributes the burden of proof in the process, using it more as a "tie-breaking criterion", as stated by DE PAULA RAMOS.(1)

In addition, there is an emerging school of thought that, due to the difficulties encountered in obtaining sufficient corroboration of evidence regarding a fact, seeks to advance the imposition of sanctions by finding justifying arguments to accept as true facts for which there is no proof, through the use of presumptions. hominis.

However, a recent judicial ruling in Uruguay showed that, as we have been arguing in our previous columns, in matters of customs offenses (which extends to all Customs Sanctioning Law) there is a duty of the State to ascertain the truth, calling into question the traditional conception that there is a procedural “burden” of proof. 

2.A paradigm shift in evidence: from the burden of proof to the duty to prove

Thus, a recent ruling (2) The Court of Appeals in Civil Matters of the 4th Shift (Uruguay) emphasized the duty of the State in relation to directing its administrative and procedural action in the search for the material truth, and in accordance with this, determined that proof of the existence of a customs infraction constitutes a duty of the State.

Certainly, there are no jurisprudential precedents in Uruguay that have addressed the issue in the same way, normally limiting themselves to pointing out the procedural legal situation of the State, conceiving it as a procedural burden of proof. 

Thus, the Court said: 

“Within the framework of the customs process, it can be argued, as has been done on another occasion, that the burden of proof of the commission of a customs infraction falls on the Prosecutor's Office (cfme. TAC 2 judgment 92/2013 in RUDP 22/2014 page 482). Notwithstanding the foregoing, it is also necessary to point out that within the framework of a customs infringement process, the State (Treasury/National Customs Directorate) must be required to search for the material truth with which to determine the existence (or not) of an infraction that warrants the application of the sanction established by law. Such duty extends into the prior administrative stage and obviously (if it exists) into the judicial stage. Proof of the existence of an infringement establishes a duty of the State and in the event of not achieving this, it would not be in accordance with the law to seek the application of a sanction, a sanction that could not be applied in the event of a lack of certainty or reasonable doubt about the existence of the customs infraction (as a corollary to the presumption of innocence that also applies to the person being administered in this infraction process).

In conclusion, finally: 

“In short, in the opinion of the Court, the burden has not been met (actually should) to prove the fraud, nor the necessary intent or negligence, and this does not generate the necessary conviction to confirm the appealed sentence.”

As can be seen in the development of the Court's reasoning, it starts by recognizing the traditional conception that indicates that the one in the active position in order to produce evidence is the State, in the procedural action of its representative (Prosecutor's Office with customs jurisdiction in Uruguay).(3)

However, he then goes further, and even while acknowledging this, establishes an explicit requirement regarding the activity of the State, stating that the State “must be required the search for material truth".

This activity – and consequently proactivity – is functional to the central objective of any judicial process or administrative procedure in matters of sanctions, and in particular, in matters of customs infractions, since these have as their objective, as the Court states: “to determine the existence (or not) of an infraction that warrants the application of the sanction established by law”.

This aligns with our understanding of the purpose of the judicial process for customs violations (or, where applicable, the administrative procedure), which should aim to establish, through judicial (or administrative) verification, the occurrence and veracity of the reported (or noted) facts, and their attribution to one or more individuals. Secondly, it should focus on determining whether the facts fall under the applicable infraction; and only if this is verified should the conduct of the perpetrator(s) be judged by assessing their culpability (unless liability is attributed to them on the basis of strict liability). Finally, thirdly, unless a justification exists. (4)The consequences provided for in the legal norm must be imposed on its author or authors and/or the other responsible parties, always within its limits, with the degree of proportionality to the conduct developed by the author or authors, guaranteeing the offender, in all cases, the full exercise of his rights of defense.(5)  

Thus, the purpose of the Customs Process (rectiusThe purpose of the "Procedure for Knowledge of Customs Infractions" in Uruguay is to determine whether the reported facts constitute violations. This aligns with our understanding of the purpose of the judicial process for knowledge of customs infractions (or, where applicable, the administrative procedure), which should aim to establish the judicial (or administrative) verification of the occurrence and veracity of the reported (or noted) facts, and their attribution to one or more persons. Secondly, it should be oriented towards verifying whether the facts fit (or do not) the infraction; and only if this is verified should the conduct of the perpetrator(s) be judged by assessing the subject's culpability (unless the responsibility is imputed to them on the basis of strict liability). Finally, thirdly, unless there is a valid reason for justification, the consequences provided for in the legal norm must be imposed on its author or authors and/or the other responsible parties, always within its limits, with the degree of proportionality to the conduct carried out by the author or authors, guaranteeing the offender, in all cases, the full exercise of his rights of defense.  (6)

Customs officials, or any other State official, or a private individual, have committed acts that have been brought to the attention of the judicial authority; and in such case, whether or not they constitute a customs infraction; and if so, to determine who the perpetrator(s) are, to judge their conduct, and to impose on the responsible party(ies) the legally established sanctions as a reproach for said conduct – fines, confiscations, court costs and expenses, as appropriate to the infraction in question –; as well as, where applicable (7), arrange for the payment of the “corresponding taxes”, and this, once it has been previously requested by the Fiscal Representative (Prosecutor's Office with customs competence), the sole holder of the action in the customs dispute. 

But the requirement established by the Court at the level prior to judicial proceedings is also significant. That is, in the previous stage, the administrative one, when it states:Such duty [in search of material truth] It extends into the prior administrative stage and obviously (if it exists) into the judicial stage.”

This requirement must be contextualized by considering that in Uruguay the competence to substantiate the investigation of the existence of facts that may be classified as constituting a customs infraction, and eventually to judge the conduct of its authors, and impose the corresponding tax and sanctioning consequences is in the hands of the Judicial Branch (except in the case of the customs infraction of Contravention, which is in the National Customs Directorate, which must substantiate the corresponding administrative procedure).

What the Court rightly points out is that in administrative proceedings, prior to reporting alleged infractions to the Judicial Branch, the Customs Administration must direct all its efforts towards ascertaining the (material) truth of the facts.

What is observed in practice is that many times the efforts in administrative proceedings are limited to exclusively reinforcing an infraction hypothesis that justifies the Complaint, avoiding the effective verification of alternative explanations or the investigation of all the facts that may rule out the existence of the customs infraction that was initially presumed to have been configured.

This entails numerous problems with diverse economic dimensions, some of which are not even considered, or are simply disregarded, by the State. This is because a lack of evidence on the part of the Customs Administration, and its subsequent legal action, can subject an individual to legal proceedings, generating uncertain outcomes. In many cases, such as with companies that have a more advanced level of organization and procedures, or that are subject to audits, this creates the obligation to provision for the potential contingency, with the consequent financial burden.

Furthermore, negligence in the evidentiary process, or the deficient production of evidence, also results in a loss of resources for the State, since it dedicated human and physical resources to investigating facts that did not achieve their purpose, or only partially determined them, and based on this, it maintained a hypothesis of wrongdoing that lacked sufficient factual support, ultimately leading to a judicial declaration of acquittal, when it should have been promptly dismissed. If the outcome of this only occurs through the judicial process, the impact on resources is even greater.

The corollary of this is also captured in the aforementioned Judgment, since the Court concludes that, in the event that it is not possible to prove the existence of the facts required to establish the infraction: “…it would not be in accordance with the law to seek the application of a sanction, a sanction that could not be applied in the event of a lack of certainty or reasonable doubt about the existence of the customs infraction (as a corollary to the presumption of innocence that also applies to the person being administered in this infraction process).”

3. The existence of facts, the postulates about them, and the truth (or not) of these

Things exist (or don't) and events happen (or don't) in the real world, and they don't require a postulate for this. Postulates are of human nature and contain assertions about the existence or non-existence of a thing or event.

The truth about a postulate arises when it corresponds to reality. A fact or a thing is not per se true, since it is the postulate that contains or describes it that can be true, and this, only if there is that correlation or correspondence of it with reality.  

When the postulate aims to affirm the occurrence of past events, current and direct verification of those events is not possible, and therefore requires a process of reconstruction of those events based on the collection of elements that can prove their existence, which makes their verification difficult.

The correspondence between a postulate asserting the occurrence of an event and the actual event determines its truth. Thus, the truth of the postulate may or may not be perceived. The latter can occur either due to imprecision in the method used to ascertain the facts, or simply due to a lack of interest, preventing the truth from being established through the appropriate verification process.

Similarly, a postulate can be asserted as true without any verification, and yet still be true, or vice versa. 

However, the relevance of legal principles and their correspondence with reality becomes crucial when a specific legal consequence is assigned to a principle, and even more so when that legal consequence involves the infringement of a right. The legal system considers this consequence legitimate only under the assumption that the aforementioned fact or conduct has occurred.

Thus, if it is stated as a postulate that there exists a fact (or set of facts) to which the legal system has assigned a sanctioning consequence because they are unlawful, it is necessary to be able to verify that said postulate is true, since it is the only assumption that the legal system legitimizes in order to apply the sanctioning consequence.

Considering this, in matters of Sanctioning Law, the postulate that must be determined as true in order to apply the legal consequence provided for in the sanctioning norm is the one that describes the conduct in the infraction type, since it is the normative prerequisite for applying the sanction.

Only if the event described in the rule is determined to have occurred, or the conduct to have been carried out, can the sanctioning consequence be determined. Likewise, if the event is determined not to have occurred or the conduct not to have been carried out, or if there is no certainty that the event occurred or that the conduct was carried out, the legal consequence cannot be applied, because the normative link for this (the relationship between antecedent and consequent) is not met.

4.Bsearch for the material truth and duty to prove the accusation

Now, based on the above, the question arises: Is it possible to apply a legal consequence without its prerequisites being proven? The answer at this point seems quite clear. No, it is not possible. Just as the State would not agree to pay a debt that does not exist, it cannot apply a sanction without verifying the existence of the legal prerequisites for its imposition.

When the Court of Appeals in the cited Judgment says: “…The State (Tax Authority/National Customs Directorate) must be required to search for the material truth with which to determine the existence (or not) of an infraction that warrants the application of the sanction established by law.”It is recognizing the finalistic function of the duty to investigate the facts (search for the material truth), which is to be able to determine if the necessary condition for the imposition of the sanction was verified, which can only occur if the realization of the typical facts is verified, the relationship of a subject with the facts, the conduct of the subject related to them, and there are no elements that exclude the responsibility of the same.

Now, the question arises: What actions should the State take to verify the occurrence of the events foreseen in the infraction law for which a sanction was determined? The answer also seems clear: All actions necessary to ascertain whether the events that appear to be infractions actually occurred or not.

The search for material truth, even when conceived as a principle, guides the conduct of the Administration. In this sense, as ÁVILA reminds us: “Principles establish the duty to adopt behaviors necessary for the realization of a state of affairs or, on the contrary, establish the duty to effect a state of affairs by adopting the behaviors necessary for such purposes.”(8)

The duty required by the Court in relation to the search for the truth and the consequent duty to prove the existence of a customs infringement implies an imperative subjective situation that is definitively opposed to a procedural burden.

DE PAULA RAMOS points out that a “burden” is a weak, subjective, passive situation that describes behavior that the law “values” but does not categorically demand, allowing the subject to choose whether or not to act in accordance with the behavior (positive or negative), without the failure to perform the conduct constituting an offense. Meanwhile, a “duty” is a strong, subjective, passive situation that establishes a mandatory legal rule and describes behavior (positive or negative) that the law categorically demands. The obligated subject does not have the possibility of choosing whether or not to act in accordance with the behavior (positive or negative), so that if they do not perform it, an offense is committed.

That is why we had pointed out (9) If we apply these ideas to the evidentiary activity of the Administration in an administrative procedure, and even more so in a sanctioning administrative process, we can conclude that referring to "burden" of proof on the part of the Administration is technically inadequate and significantly dangerous.

Any attempt to advance with the aforementioned rule within the field of administrative sanctioning activity reveals its functional inconsistency, since it clashes head-on with the duties of the Administration, the necessary lack of interest that the Administration must have in a particular result and the duty to orient its conduct towards the full realization of the law, and consequently, towards the search for the material truth for that purpose. 

In matters of administrative procedures, assigning the burden of proof to the Administration determines an interest in optional execution, and although it would imply an adverse consequence if its result were negative, this is far removed from the function that the Administration must fulfill.

That's why we also said (10) Regarding the review of administrative acts issued by the Customs Administration, since the act is subject to the jurisdictional review of a third party, it does not determine the verification of facts different from those of the administrative act, but rather the appropriate resolution in relation to the factual verification carried out in administrative proceedings, and the correct application of the law, which is evident in the motivation of the resolution.

Therefore, the burden of proof cannot be invoked in this context either. If it is determined that the Customs Administration issued an administrative act imposing a sanction that was not warranted, it failed to fulfill its duty to prove the matter to the degree required by the applicable standard of proof. The risk allocations determined by the objective burden of proof are not transferable and are therefore inapplicable to this case.

We also argued in the aforementioned columns that, in matters of judicial processes, the representative of the State, holder of the fiscal action, has a power-duty to orient his procedural action towards the search for the material truth, and not towards the realization of a different particular interest (whether fiscal or repressive). 

He further stated that, in the case of the State, its sole guiding principle in legal proceedings is the correct application of legal norms, and not any self-serving interest contrary to those norms, even if doing so might yield a favorable economic outcome. Therefore, under the guise of a punitive regime, the State would be pursuing a revenue-generating objective, disregarding the proper application of the law.

Therefore, the representative of the State in a judicial sanctioning customs process must act in accordance with the duty of the State.

Whereas, in administrative processes there is no burden of proof on the Administration, but rather the duty to prove the facts legally required for a sanctioning charge, otherwise the administrative act will be unjustified.

Therefore, we duly concluded that the burden of proof is inoperative in sanctioning matters, given that the presumption of innocence resolves cases of non liquet (it is not clear), as the Court also maintains now in the cited judgment, stating: “…a sanction that could not be applied in the event of a lack of certainty or reasonable doubt about the existence of the customs infraction (as a corollary to the presumption of innocence that also applies to the person being administered in this infraction process).”

Considering the above, it would be desirable for the State to adopt a proactive stance in the search for the material truth, and abandon the evidentiary inertia that often characterizes the State's actions in judicial processes and administrative procedures for customs violations. 

What is at stake is not the specific imposition of a sanction or the collection of taxes, but the very realization of the Law.

It is time to turn the page and build a Sanctioning Customs Law based on truth.

I hope we're on that path.

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1. DE PAULA RAMOS, Vitor. The burden of proof in civil proceedings: from the burden to the duty to prove. Marcial Pons, Madrid. 2020, Page 100.

2. Judgment No. 249/2025, of September 15, 2025. Accessible at: https://bjn.poderjudicial.gub.uy/BJNPUBLICA/busquedaSelectiva.seam

3. Article 230 of the Customs Code of the Eastern Republic of Uruguay (CAROU).

4.Articles 234 to 250 of the Customs Code of the Eastern Republic of Uruguay (CAROU).

5. For example, state of necessity, which excludes unlawfulness.

6.VARELA, Andrés. “Reflections on the judicial process for customs violations in Uruguay”, in YACHAQ Law Magazine No. 11, from the Center for Research of Law Students (CIED), National University of San Antonio Abad of Cusco. Cusco, 2020, pp.189-205

7. In this regard, it should be remembered that not all infractions result in the identification of a responsible party and the payment of the corresponding taxes, as is the case with infractional abandonment (Customs Code of the Eastern Republic of Uruguay, 2014, art. 207). Likewise, in cases of smuggling, when it is verified “the violation of essential requirements for the definitive import or export of certain goods established by special laws and regulations, not yet customs regulations”This does not normally imply non-payment of taxes.

8.VILA, Humberto. Theory of principles. Madrid: Marcial Pons, 2011, p. 71.

9. See our column: “Can we speak of a “burden of proof” in matters of Customs Sanctioning Law?”

10..Ibid.

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Bibliographic references

DE PAULA RAMOS, V. (2020). The burden of proof in civil proceedings: from burden to duty to proveMadrid: Marcial Pons.

FERRER BELTRÁN, J (2019). “The Dynamic Burden of Proof. Between Confusion and Unnecessity” (pp. 53-87), in Against the Burden of ProofMadrid: Marcial Pons.

NIEVA FENOLL, J. (2019) “The Burden of Proof: A Historical Relic That Should Be Abolished” (pp. 23-52), in Against the Burden of ProofMadrid: Marcial Pons.

TARUFFO, M. (2010). Simply the truth: the judge and the construction of the facts. Madrid: Marcial Pons.

TARUFFO, M. (2019) “Almost an Introduction” (pp. 11-21), in Against the Burden of ProofMadrid: Marcial Pons.

VARELA, A. (2017) “An essential need: To definitively abolish the strict liability regime for customs offenders”. Journal IUS ET VERITAS No. 55Lima: IUS ET VERITAS Association, 236 – 254 

VARELA, A. (2020). “Reflections on the judicial process for customs violations in Uruguay”, in YACHAQ Law Magazine No. 11, from the Center for Research of Law Students (CIED), Cusco, National University of San Antonio Abad of Cusco, 189-205.