Sectors linked to justice and Argentine foreign trade met on Thursday (23.11.2023) to analyze and discuss risks and inequalities inherent to the practice of the Customs broker profession, as well as proposals for future solutions.
The day called “Criminal liability of the Customs Broker", sponsored by the Customs Brokers Center of the Argentine Republic (CDA), had the participation of national experts, who considered the subject from three perspectives.
La Lawyer and Customs Broker Stella Maris Ruiz examined the performance of the professional who moves in a risk scenario, which introduces him into the field of criminal liability. He pointed out the concept of customs broker addressed in article 36 of the Customs Code.Customs brokers are persons of visible existence who, under the conditions provided for in the code, carry out, on behalf of others, procedures and formalities before the customs service relating to import, export and other customs operations. Customs brokers are auxiliaries to trade and the customs service.
Ruiz said that the shipping agent was given more responsibilities than he was supposed to have and stated: "This means that we are accused of some customs violations and crimes without being fully involved in the matter."
In her presentation, the lawyer and broker reviewed the problems that occur in the field of professional performance when being responsible for inaccurate declarations regarding classification and valuation of merchandise. She suggested, in this sense, that the broker be released from this last task because he does not intervene in international buying and selling.
In turn, the CDA Advisor, Miguel Galeano, analyzed the concept of customs valuation in Argentine legislation from a technical perspective, highlighting the factors that go beyond the price documented in the declaration. In this sense, Galeano argued that the commercial circumstances for applying the value “are known only by the importer and the seller; the clearing agent is not involved in the negotiation. This is typical of the positive notion of value.”
The specialist based his intervention on a document from the World Customs Organization, issued at a session of the Technical Valuation Committee: “EIn most countries, importers usually hire agents who act on their behalf to clear the goods and to provide advice on customs valuation issues. However, and without prejudice to national legislation, the person responsible for the correct declaration of the customs value is the importer and not the agent.".
The event gave way to the third panel to analyze the situation of the Customs Broker in the judicial field. The presentations were given by Dr. Aldana Ponce, Deputy Secretary of the Economic Criminal Chamber and Dr. Juan Carlos Bonzón, former Judge of the Economic Criminal Chamber.
In his presentation, the Dr. Aldana Ponce He stated that the Criminal Procedure Code describes prosecution and dismissal differently, that is, from articles 306 to 311 there are “more relaxed guidelines.”
“If we are going to link the dispatcher in a certain case, the Criminal Procedure Code requires certainty, but for the prosecution, no – it will depend on the judge,” he explained. “We start from a different basis.” He added a series of rulings from 2021 and 2023 to make known the treatment of the conflict and controversial cases, clarifying that for justice “the dispatcher is not a simple manager; he will always have a greater responsibility.”
El Dr. Juan Carlos Bonzon He reflected on the performance of judges and more specifically on the delicate task of judging the conduct of other people for the purposes of whether or not to impose a sentence.
Focusing on this, the former magistrate referred to the Cartagena Declaration, a document on the responsibility of the customs broker, approved by ASAPRA at its 48th Assembly, held on November 1, 2017 in the city of Cartagena, Colombia, at the initiative of the Center of Customs Brokers of the Argentine Republic.
The document consists of ten principles, of which the former magistrate referred to:
First principle: “The Customs Broker or Customs Agent (DA or AA) does not participate nor has any responsibility in the commercial transaction that originates the customs clearance and will be responsible for faithfully transcribing the data recorded in the documents received from their clients, consignors or consignees of the goods. For Bonzón, this means that the customs broker, if he documents in accordance with the documentation provided by the client, this exempts him from customs criminal liability. He added "prudently" that if the broker has a doubt per se, you better abstain.
Third principle: “For the purposes of applying a sanction to a DA or AA, the starting point must be the failure to comply with the obligations that regulate their professional performance, which are only those expressly imposed in the applicable regulations according to the regime, operation or destination in question. The analogy is not admitted.According to Bonzón, this details what the customs agent has to document.
Fourth principle: “With regard to the obligations under their responsibility, the benefit of the doubt applies and, in countries where it is enshrined as a general principle, the application of the most lenient criminal law”For Bonzón, the focus of doubt and the most lenient criminal law in the Cartagena Declaration is in order to avoid a sentence.
In the conclusions, the Lawyer and Advisor of the CDA Hector Vidal Albarracín He agreed with former judge Bonzón on the relevance of the guidelines of the Cartagena Declaration for the knowledge of judges. Errors in criminal matters cause “irreparable damage,” he said. For this reason, he highlighted “the delicate task of administering justice,” meaning that “it must be measured and prudent.”
His proposed solutions include, in the future, the modification of the CA where the suspension of the customs agent is not automatic but optional/facultative; that is, it may not be imposed when certain requirements are met. In this regard, he recalled the Draft Amendment for the update of the Argentine Customs Code prepared by the private sector in 2019.
Héctor Vidal Albarracín also pointed out the project for the collegialization of the Customs Brokers Center, which is still in parliamentary status, which includes a Court formed by the customs agents themselves, to judge the conduct of their peers.
Regarding the role of the judge, the specialist suggested that the magistrates should be fully aware of the duties of the dispatcher, the times and the place where they must be fulfilled.
In the relationship between the dispatcher and Customs, Vidal Albarracín made clear aspects that highlight inequalities in the treatment of the measures that restrict the exercise of the activity of this collaborator. He recalled that the dispatcher, when prosecuted, is suspended from the Registry, even when it is not firm, different from the regime that is applied for other cases such as customs officials.
Finally, Dr. Héctor Vidal Albarracín stated that this situation is also evident with importers/exporters, subjects regarding whom, by Decree 971/2003, regulated by AFIP Resolution 26/2022, they were granted the exception to avoid registration suspension in the event of processing with sufficient guarantee. The basis invoked was the affectation of the free exercise of commerce and the presumption of the principle of innocence, which also occurs in the case of the forwarder.
"It could end with the invitation to another meeting to develop other inequalities with respect to the dispatcher," he concluded.
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