1. Introduction.
Dr. Cotter published an article in which he quotes and considers a vote that states that not every inaccurate declaration can give rise to the application of a sanction. I recommend reading this work; however, I am forced to make some observations regarding the understanding of my judgment. Specifically, I would like to make an observation regarding the author's conclusion, which states: 'We say that no sanction is appropriate, because in these cases the conduct of the declarant, although mistaken, does not merit reproach for an infraction, given that there is not the minimum degree of fault required by the Customs Code for the application of the sanction.'
2. Authorship in administrative violations.
First of all, what characterizes administrative offences is that any person who is part of the organization or entity can be considered the author, regardless of how he or she empirically contributed to the commission of the act. He or she may have acted on his or her own, making things easier for another to carry it out, persuading another to do it, among other possibilities. In other words, this means that, whether the subject bound by the duty acts in the acts as author, accomplice or instigator, he or she will always be considered the author in terms of his or her responsibility. This is because not only the person who infringes a duty must be considered the author, but no one else can be considered as such. Only the person who is obliged to fulfil the duty can infringe it and, if he or she does so, he or she will infringe it, regardless of the way in which he or she does so. The person who is not obliged to fulfil it can never infringe it, even if he or she collaborates so that the person obliged to do so or persuades him or her to do so. Consequently, the question of control of the facts is irrelevant in this case.
This is so, given that The breach of administrative obligation constitutes the core of the administrative offence. This duty does not refer to the general duty to respect the norm, which is common to all persons, but rather to the duty of distributive justice originating in the sectoral scope of administrative regulation. All this together reveals to us that, in administrative offences, only the person who violates an administrative duty that existed prior to the formulation of the type can be the author, given that the basis of liability is not based on the violation of the general duties of compliance with the law.
Thus, the basis of liability is not based on the violation of general duties arising from citizenship and the negative duty to prevent third parties from being affected in the exercise of autonomy of will. In other words, in the terms of general justice, the basis of liability is related to general duties of action, referring to the fact that each person, being a person, is obliged to fulfill general duties that apply to everyone on equal terms, and the most general duty is not to harm others in their property, which is known by its phrase neminem laedereThe truth is that, if a person in his or her sphere of freedom dominates the risk that ultimately affects or may affect a third party, from that affectation a crime is generated that is understood and explained in the idea of dominance of the fact.
It is thus proven that when a person violates the duties of his status, he is making use of his freedom in a way that the law disapproves of. A synallagmatic relationship between freedom of action and responsibility for the consequences of the administration of that freedom prevails.
Thus we come to a question that is the opposite of the previous one. Now consider a moment in which the basis of liability is given by the non-observance of special duties established by a special status, the administered, which implies a way of behaving determined by administrative law. In these cases, what was done is not relevant, but rather the relationship between the special obligated party and the object of legal property, because, unlike the authorship and participation in crimes of domain, which are constituted and determined through the control of the fact, in the administrative infraction field, authorship is constituted by the violation of duty.
This leads us to the conclusion that the liability of the obligated party participating in the event is not limited by the rule of whether or not he controls the act, but is determined by virtue of the special status or role of the subject. In other words, it does not matter whether the obligated party organizes a lot, a little or nothing; to the extent that he can prevent the act from being carried out, he is always liable as the author.
In fact, the determination of authorship is based exclusively on the breach of duty, and not on the control of the act. Even in cases where the person specially obligated acts in control of the act and violates his duty, authorship is still determined by the breach of the special duty and not by the control of the act.
Therefore, in these offences, what determines authorship is the fact that the subject has breached his duty, and not whether he had full control of the event. However, when the obligation resulted from an impossible breach, it is possible that the liability for penalties may be excluded. Thus, for example, although the importer is liable to be held liable – under the terms of art. 954 of the CA– due to the inaccuracy of its declaration in the request for customs destination relative to the quantity of the merchandise declared, this does not prevent such liability from being excluded if the evidence provided in the process shows that the missing or surplus goods should reasonably be attributed to the spheres of responsibility of other subjects –the carrier or the depositary– who intervene in operations prior to the request for destination, and who, like this last procedure, are subject to the control of the customs service (CSJN Fallos: 325:786).
That said, otherwise, the attribution factor in the administrative offense might not require the existence of intent or a minimum degree of negligence, so that the accused could only exempt himself from liability by proving that even if he had deployed all the means tending to avoid the inclusion of his conduct under the analyzed offense, the fulfillment of the obligation would become impossible to fulfill (1).
In this understanding of the subject, I am certainly not moved by or unaware of what the SCJN said in famous cases, where reference is made to the consecration of the principle of the “personality of punishment” (2). However, the consolidation of the breach of duty as a criterion for determining authorship in administrative offenses causes the way in which the offense is committed to lose meaning. For example, a taxpayer who has the responsibility of filing the sworn declaration will always be considered the author of the offense of failure to file the sworn declaration, regardless of whether he himself did not file it or delegated it to his accountant. The lack of importance in the way in which the offense is perpetrated is a determining element in establishing which excuses are accepted to delineate responsibilities.
Let me insist. A culpable action assumes that people have the obligation to carry out an appropriate activity by virtue of the knowledge that they are presumed to have of the law and the possibility of acting differently. It is worth asking what the reproach would be for the businessman who delegated the management of his business to a professional of his art and/or knowledge. There is a notable confusion when the effort is made to maintain culpability as an essential element of the administrative infraction and it is modified violation of law the legal basis for the sanction. In fact, the lack of control and/or due diligence regarding the extraneus who carried out the illegal act (3).
In this order of ideas, it is rarely required in the sectorial order in question to implement an organizational model that responds to a certain parameter.
3. Accepted excuses
Following the above, it can be said that it is clear that the only admissible excuse is the lack of reasonableness of the obligation imposed. A case, for example, would be one in which the norm does not allow to unravel what is permitted with respect to what is prohibited, but without forgetting that, by antonomasia, people have the obligation to know and comply with the norms that regulate their activity, and cannot claim ignorance as an excuse to justify illicit conduct. This principle is applied in a particularly strict manner in regulated sectors in which the subjects involved are expected to have a complete knowledge of the regulations that govern them (4).
In this state of affairs, it is clear that the establishment of a regime of joint liability may be constitutionally problematic if one considers the penal nature of administrative sanctions. It happens that, by multiplying the person and the assets in respect of which compliance with the fine can be demanded, a kind of internal control is introduced between the guarantor and the one who is usually the one who is in a position to comply with the due act. That is to say, in the administrative sanctioning field, passive solidarity allows imposing liability both on the direct offender and on the person who should guarantee compliance with the rules, in an objective manner and without the need to establish culpable conduct, since the administrative fine is imposed on the person who has the responsibility of guaranteeing compliance with the rules and administrative mandates, regardless of whether that person committed the infringement or not.
This perspective is based on the idea that the main objective of administrative sanctions is to ensure compliance with the rules and the protection of the public interest, and not necessarily the individualization and punishment of the offending conduct. Therefore, joint liability allows the administrative authority to act effectively and achieve the desired objective, even when the infringement has been committed by a person other than the person who is obliged to ensure compliance.
In this sense, let us consider the case of a company that is a licensee to drill an oil well and in this context hires the best professionals; but these imprudently cause an environmental disaster. Is the environmental legislator interested in determining in a process whether the licensee acted with due diligence in his control tasks with respect to his clients? Personal responsibility cannot necessarily penetrate the administrative sanctioning sphere because it ignores the meaning of the sanctioning system based not on moral reproach but on distributive justice. Indeed, in this case, the environmental legislator would be interested in guaranteeing compliance with the regulations and protecting the environment, so the administrative sanctioning responsibility would focus on compliance with the obligation to guarantee responsible and safe activity by the licensee company, without the need to establish the personal responsibility of the person who committed the infringement. In this sense, administrative sanctioning responsibility focuses on ensuring compliance with the rules and protecting legitimate interests, and not so much on the personal aspect of the offender's responsibility.
Consequently, joint liability in the administrative field of sanctions is an important tool for the protection of the environment, public safety, etc., but it must be established in a reasonable manner and within the limits of equality before the law. The imposition of joint sanctions must be based on real and objective obligations, which are enforceable and do not compromise equality before the law. It is important that the administrative authority considers the limits and specific circumstances of each case to ensure that the application of joint liability is fair and impartial.
In conclusion, solidarity in administrative liability for sanctions is a relevant aspect that must be considered, however, it must be limited by the principles of reasonableness and proportionality. The imposition of a joint sanction must be based on the attribution of a reasonable and possible obligation of compliance, and not on an arbitrary and disproportionate imposition. At the same time, an unjustified excuse for liability must be avoided, since this could result in impunity in many situations and in ineffectiveness of administrative regulations. Therefore, it is important to find a balance between the need to hold accountable those who have the obligation to ensure compliance with the regulations and to protect fundamental rights, such as the guarantee of equality before the law and the presumption of innocence. Indeed, it is absolutely unreasonable to compromise it by introducing a risk for every event.
It is therefore important that administrative sanctioning law evolves in line with social and economic changes to ensure that rules and sanctions are applied fairly and equitably. Furthermore, administrative sanctions not only seek to protect collective interests, but also to foster a culture of compliance with the rules and promote the social responsibility of individuals and companies in their actions. Therefore, it is necessary to find a balance between respect for the rights of individuals and companies and the protection of collective interests.
In this regard, it should be noted that the administrative sanctioning model must respond to modern production methods. If the law really wants to continue being a living reality, it cannot be alien to these changes and remain impassive. Otherwise, acting with indifference would imply failing to comply with the constitutional mandate to protect situations of collective incidence. Therefore, it is important to design and apply a legislative administrative sanctioning policy that allows compliance with regulations in an effective manner, instead of simply following traditional formulas and instruments.
From this perspective, although the classic parts are still seen as forming the core of administrative law, it is no less true that sectoral regulations invite us to rethink many of the concepts coined in the past. Precisely these new situations are those that allow us to act away from the traditional formulas and instruments, copied from criminal law, even if they are later disguised.
Indeed, the reformulation of the administrative sanctioning power is necessary to guarantee its effectiveness in compliance with the regulations. The power examined must be designed autonomously and with its own logic that adjusts to the specificities of the activity that is intended to be prosecuted. The focus on the principles and rules of criminal law is not appropriate in this case, since the purposes and objectives are different. Therefore, a comprehensive reformulation is necessary that takes into account the belonging of the attribution to administrative law and its specific characteristics. Specifically, as we saw, the formulation of a relationship of genus to species is not satisfactory because it presents deficiencies, both from a theoretical and dogmatic perspective, given that the purposes of both powers do not correspond either theoretically or practically. In reality, the principles and rules are dissimilar and, in the aforementioned conditions, a comprehensive reformulation of the power is necessary, which takes into account its belonging to administrative law.
Finally, it is important to mention that the aforementioned attribution must be understood as a tool for achieving distributive justice and not as a simple punitive power, as it has been in the past. The evolution of society and the new situations that arise require an adaptation of legislative policies and administrative action to guarantee effective compliance with regulations.
In short, it is clear that attribution must be more directional and less restrictive, and its main objective must be to promote compliance with regulations and the general well-being of society. In addition, the administrative sanctioning system must be adapted to new realities and be more responsive, overcoming the thesis of jus puniendi the State's sole authority and offering a more just and equitable approach. Definitely, if power wants to be a tool for achieving distributive justice, it must incorporate a responsive view adapted to the distribution of risks within the framework of 21st century society, which must overcome the controversial thesis of jus puniendi unique in the State.
Furthermore, the current activity carried out by administrative bodies does not even correspond to the outdated administrative policy which, as we all know, was characterized by the imposition of restrictions, duties or in any way ordered private actions in order to guarantee some public interest, monitor compliance and react to non-compliance to reestablish legality. In the opposite sense, administrative activity today covers an endless number of situations of collective impact in which it is necessary not to carry out a merely limiting activity but rather a fundamentally directing one, in order to rear supervise and, in any event, sanction the derailment.
I reiterate to the reader that it is important that the administrative sanctioning power be adapted to new realities and be designed with a more responsible and adaptive approach, which allows the AP to act effectively in the protection of public interests and the maintenance of legality.
In this way, it will be possible to ensure that the AP has the necessary tools to carry out its functions effectively, while respecting the rights and guarantees of individuals. In this regard, it is essential to bear in mind that power should not be seen as an end in itself, but rather as a means to achieve a higher end, which is to ensure compliance with regulations and the maintenance of public order.
In this regard, it must be kept in mind that the techniques used to direct activities are extremely varied and their compliance is far from being dispensed with by diligent action. These prerogatives would be of little use if they do not agree with recognizing the AP's ability to sanction individuals for violations of the administrative regime through a conceptual and practical apparatus that is far removed from criminal law.
In short, solidarity in the administrative sanctioning regime means that individuals can be sanctioned for failure to comply with the obligations established by the AP, regardless of their personal imputation. The only valid defense, in this case, is to demonstrate compliance with the obligation or that the failure is a situation that would have occurred at any time and place. Solidarity in this context implies a form of sanctioning liability for the actions of third parties, and, therefore, evidence showing that the owner did not commit the infringement is irrelevant (5).
Ultimately, solidarity in the regime under consideration implies the existence of several subjects in the obligations or duties of the administered party, which means that the performance is unique. The institution of solidarity aims to guarantee that the obligation is enforceable against subjects other than the author of the prohibited conduct. The figure of solidarity in administrative sanctioning matters does not violate the right to due process as long as the obligated party is allowed to attend the process.
In this context, denying the morphological differences between crimes and administrative offences seems to be a reckless act based on the rejection of the obvious. Simply maintaining that there is no difference between the two is to fail to notice that the duties are not equal nor directed at the same recipients. In general, in the criminal legal system the duties of respect for legal assets are directed at all citizens. However, there are few crimes that generate duties of protection directed only to certain recipients with special positions in relation to the legal asset (special duties), such as the judge, the prosecutor or the administrator of another's assets.
Despite this, the cause of the imposition of the penalty is not the simple breach of duty, but a judgment of reproach based on the fault and/or the deceit of the agent who caused it. Therefore, criminal law would not admit special crimes in the name of intraneus lacking in morals, which is contrary to the sustainability of the system of administrative obligations.
But there is another very important thing. In the field of criminal offences of breach of duty, the breach of the special duty only justifies authorship and not the wrong. It must be understood that, in the field of punishability, repression is not exhausted with the breach of a duty, but it requires the affectation of a legal asset. Consequently, the basis of the criminal legal charge – the material presupposition of the wrong – supposes the concurrence of both elements. Indeed, if the intraneus If they do not have control over the vulnerability of the protected legal asset or over the supervision of the source of danger, their role as guarantors would not be sufficient to carry out the sentence.
I have said that liability in administrative sanctions is not based on the intention or fault of the subject, but on the fact of not complying with the obligations established by the regulations. The imputation does not require a moral evaluation of the subject, but an evaluation of his compliance with the obligations.
To simplify, we could say that, in the administrative field, the focus is on the fulfillment of the obligation and not on the morality or intention of the subject. Instead of evaluating guilt or fraud, the AP evaluates whether the subject's conduct complies with the established norms and, if not, may impose sanctions. In addition, in the area of administrative sanctions, liability can also be imposed for acts carried out by third parties, establishing a form of objective liability.
Thus, in the field of administrative sanctions, it is possible to assign responsibility for acts that escape the subject's awareness, will or control, such as those carried out by third parties, and to introduce a form of objective responsibility. Strictly speaking, in the administrative field, when a conduct falls within a sanctioning norm, if no cause for justification is corroborated, it is not necessary to ask whether the obligated agent acted with intent or fault. Once again, the unreasonableness of proposing the full incorporation of the elements of the theory of crime and its analytical categories of action, typicality, unlawfulness and guilt in the administrative sanctioning matter is confirmed.
To sum up: in the field of administrative sanctions, liability is different from criminal liability. It is based on the violation of an administrative rule and does not require a moral evaluation of the subject's behavior but rather an evaluation of his compliance with the obligation. Furthermore, in the imputation of liability, it is not necessary to investigate the physical person who had control of the act. It must be recognized that the administrative sanction does not aim to punish for the fault or intent of the subject, but for his failure to comply with an obligation and, consequently, the magnitude of the sanction should not be proportional to the subject's fault in order to avoid excessive punishment.
This point can be highlighted by observing that the obligation to comply with administrative regulations falls on the person who is in a position to do so, regardless of his or her knowledge or intention to breach said regulations. In this sense, the principle of culpability is not a requirement for imposing an administrative sanction, although this does not mean that factors such as fault or intent cannot be taken into account in determining the magnitude of the sanction.
In the theory of administrative wrongdoing, the distinction between action and omission loses relevance. Instead of looking at what behaviour the individual performed, it is necessary to focus on two key questions: whether the obligation was breached and whether the accused had a legal duty to avoid the result due to a position of guarantee or legal competence to prevent the unlawfulness.
All of this seems to confirm that the crux of the problem comes down to determining who is obliged. This means that the analysis of objective imputation focuses on which institution was obliged and who, within the institutional organization, had the assigned competence. However, it is important to note that this way of understanding administrative responsibility is subject to limitations and exceptions. For example, there are situations in which compliance with the administrative rule is impossible, such as when there is a circumstance of force majeure that prevents it. In these cases, the administrative sanction would not be applicable.
It should be noted that there are two forms of objective liability in the field of administrative sanctions: objective imputation and express objective liability. Objective imputation is based on objective facts, but the accused is still allowed the right to a defence and to demonstrate grounds for exempting him from his liability. On the other hand, express objective liability does not guarantee the presumption of innocence, since it does not allow the accused to demonstrate grounds for exempting him from his liability.
In this context, I wish to emphasise that the relationship of imputation cannot be one of absolute normativity, which would mean that the person responsible would be the absolute guarantor of compliance with the administrative order, given that these sanctions must be proportionate and subject to the limits and guarantees established in the Constitution and in the rest of the legal system.
Furthermore, it is important to note that objective liability does not imply that the sanctioned subject is automatically considered guilty. The objective imputation of a sanctionable conduct only means that the act is considered a breach of a duty or obligation established by law, and that, therefore, it is possible to apply a sanction. However, the sanctioned subject has the right to a defense and to allege circumstances or causes that exempt him from liability, such as when the imputed act is impossible to fulfill by any person at any time and place due to superior circumstances.
In other words, if there were a legitimate and superior situation that justified non-compliance, then it would not be considered an infringement and, therefore, the sanction provided for would not be applied. It should also be said that this could occur, for example, in situations of force majeure or in cases where the imposed conduct is impossible for any person to comply with at any time and place.
In this regard, it is important to highlight that the establishment of these exempting causes is the responsibility of the legislator and their application will depend on the analysis of each particular situation. But it is not always necessary to delve into whether there has been intent or fault if the administrative sanctioning rule ignores this requirement. Indeed, in the administrative field, sanctioning liability can be based on an objective criterion, independent of the personal circumstances of the responsible party, such as failure to comply with an obligation imposed by law or the commission of prohibited conduct. Therefore, the success of administrative sanctioning regulations is achieved when the need to evaluate the intention or degree of fault of the responsible party is avoided, and they focus on standardized methods to determine their liability.
It is also important to note that the imposition of sanctions for objective liability is not exceptional in administrative sanctioning law, although it is subject to certain requirements. Indeed, sanctions for objective liability are in accordance with the Constitution provided that they do not have an eminently retributive purpose, that is, sanctions that not only specifically compromise the administrative function, but are imposed due to the disdain shown by the accused regarding compliance with the law.
Let me now insist that, given the circumstances mentioned, the notable differences with the punitive field, where personal conditions are decisive in determining sanctioning responsibility, are evident. In fact, from the perspective that is considered appropriate, to a large extent, the success of administrative sanctioning regulation depends on avoiding introspection in personal matters and delving into standardized methods of responsibility.
From an institutional point of view, this situation contributes to the efficiency of the system and to the obvious saving of resources in determining administrative sanctioning liability. In this situation, it is important to bear in mind that the obligated party is expected to avoid any of the foreseeable elements of risk involved in the exercise of his activity (6).
It should also be said that the imposition of sanctions for objective liability is intrinsically related to the fact that regulatory success depends on saving resources to determine sanctioning liability.
1. In the context of a financial summary, the Superintendency of Financial and Foreign Exchange Entities of the Central Bank of the Argentine Republic imposed fines on HSBC Bank Argentina SA and the members of the Information Technology Committee of said bank. The sanctions were based on the failure to include the “payment of salaries” option in the “Transfers” menu of the bank's online banking service, in contravention of a communication from the BCRA. The chamber confirmed the fine imposed on a bank for failing to include the “payment of salaries” option in the “Transfers” menu of the bank's online banking service. home banking the “payment of salaries” option in breach of BCRA Communication “A” No. 6242, since it considered that, even in the hypothetical case that the development of the option had been unfeasible immediately after the regulation was issued, when the communication was published, it should have informed and accredited to the BCRA the alleged difficulties in the imposed implementation and timely request an extension for compliance or the suspension of its effects (CNACAF “HSBC Bank Argentina SA and others v. Banco Central de la República Argentina s/ Financial Entities – Law 21.526 – art. 42”, 2020).
2. In “Parafina del Plata” (Rulings: 271:297), judgment of September 2, 1968, and “Usandizaga, Perrone and Juliarena SRL v. In the case of the Directorate General of Taxation” (Fallos: 303:1548), judgment of October 15, 1981, the Supreme Court respectively stated that: “the materiality of the withholding of sums corresponding to third parties, destined for the payment of the tax, after the deadline has expired to constitute tax fraud is not enough, since the rule enshrines the criterion of the personality of the penalty which, in essence, responds to the principle that only the person who is guilty can be punished, that is, the person to whom the punishable action can be attributed both objectively and subjectively”, since “tax violations and penalties are part of special criminal law and the general provisions of the Penal Code are applicable to them, unless there is an express or implied provision to the contrary” (see fs. 219, of the main proceedings).
3. Indeed, the absence of direct participation in the infractions is not considered to exempt one from the administrative sanction, since the responsibility inherent to the position arises from the sole circumstance of being part of the entity, regardless of the functions that they actually performed and even when the subject did not act directly in the investigated facts. Responsibility is a consequence of the duty incumbent upon them when assuming positions that reasonably enable them to verify and oppose irregular procedures, without the modalities of management of the social business excusing them from their obligations (CNACAF “Banco Municipal de Rosario and others v. BCRA – Resol. No. 188/13 – File No. No. 100480/06 – Sum. End. No. 1247”, case No. 21.356/13 of 18/03/2014). Thus, those who, even without materially acting in the facts, did not carry out their duty of directing and supervising the activity developed by the entity, and thus contributed through unjustifiable omission to the configuration of irregular behavior, are punishable (CNACAF “Cambio América SACT and others v. BCRA s/ financial entities – Law 21.526”, case No. 54.824/13, dated 28/08/2014). Consequently, the lack of direct intervention of those sanctioned does not exclude their responsibility, if they consent with their silence and inaction to the non-compliance with the LEF and its regulatory standards (CNACAF “Daimlerchrysler Cía. Financiera SA and others v. BCRA – Resol. No. 53/11 – File No. No. 100.005/02 – Sum. End. No. 1066”, case No. 15.808/11, dated 26/09/2011). The fact is that, by voluntarily accepting their appointments, they knew – or should have known – the specific rules to which they were subject and were obliged to respond – as a rule – for the acts of the entity, since, due to their functions, they should have warned them and tried to prevent their execution (CNACAF “Ghibaudi, Enrique R. c. BCRA on financial entities – Law 21.526 – art. 42”, case No. 39.034/13, dated 12/08/2014). In short, the members of a banking entity are held responsible for the violations committed, to the extent that they accept or tolerate, even through omission, the commission of a fault, and the mere allegation of ignorance is not enough to exonerate them (CNACAF “Banco Patagonia SA and others v. BCRA on financial entities – Law 21.526 – art. 41”, case No. 40.469/13, dated 14/10/2014), or the generic invocation of the principle of guilt (CNACAF “Banco Patagonia SA c. UIF s/ Penal Code – Law 25.246 – Decree. 290/07 – art. 25”, case No. 55.011/18, resolved jointly on 29/10/2019 with the proceedings “Andreo Alledo Claudemir and others v. UIF s/ Penal Code – Law 25.246 – Decree. 290/07 – art. 25”, case No. 55.017/18; in the same sense, Chamber III, CNACAF “Ace Seguros SA and others v. UIF s/ Penal Code – Law 25.246 – Decree. 290/07 – art. 25”, case No. 14.600/17, dated 27/06/2019; “Lead General Insurance Company SA and others v. UIF s/ Penal Code – Law 25.246 – Decree. 290/07 – art. 25”, case No. 61.665/17, dated 18/07/2019).
4. In all cases, the obligated party must demonstrate that he has acted with normal and reasonable behavior in the face of the event in which he found himself, proceeding with the prudence that the situation required (CSJN Rulings: 319:1524).
5. Indeed, since this is a joint obligation, in the external relations of this, it would not be possible to claim that the infringement was not committed, because this would be a matter specific to the internal relations of solidarity. In reality, solidarity implies that payment can be collected, even if the act is not attributable to the party, given that we are in the presence of a form of punitive liability for the act of third parties.
6. This means that the permitted risks render the administrative obligation void. In this regard, however, it should be noted that there are foreseeable situations that may specifically be justified by the regulator by considering a margin of tolerance with the obligated party. This would be the case of the delay in the punctual provision of the transport service caused by a suicide bomber jumping onto the tracks. This risk could be avoided by providing security measures that prevent immediate access to the tracks by people when the train reaches the platform, but the solution is so impractical that the regulator prefers to exempt the obligated party from this risk and establish a cause for justification. Note, in effect, that this risk is tolerated in exchange for the time savings that said organization of the service is proportional to the passengers. Consequently, from the above, under the imputation modality that can be established by the DAS, the case could be contemplated in which the obligated party is held responsible for the actions of the victim who ends up damaging his own legal assets. In accordance with this criterion, the victim's fault, capable of completely cutting the causal link between the event and the result, must appear to be the only cause of the event and have the characteristics of unpredictability and inevitability typical of fortuitous events or force majeure. In relation to the above, it should be emphasized that, even when the victim participates in the increase in risk, the administrative party may be held responsible for the consequences of his actions, since the assumed duties are not interrupted by the victim's actions at his own risk. An example of the above is that of a passenger who suffers an accident in a regulated means of transport for not wearing a seat belt. In this example, the transport regulatory body will sanction whoever forces passengers to be transported in health and safety conditions. The actions described by the victim do not exonerate the party responsible for his responsibilities. The same would happen if a person purchases medication without the corresponding prescription.
President of the National Tax Court