About violations
On a previous occasion and through this same prestigious medium, I have had the opportunity to refer to the subjective element of customs violations (1). On that occasion, I pointed out that “The difference between a crime and an infraction within the Customs Code is of a legal nature, since the same legal body establishes that an infraction is similar to a culpable act, such as the failure to observe correct conduct that it imposes in certain circumstances. However, it is still necessary that for the correct configuration of an infraction, not only the material configuration of the act 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.”
And this is so, since it is in the code itself where responsibility is placed for the fulfillment or non-fulfillment of certain duties imposed as a determining condition for considering whether a specific regime has been complied with or not. This is in no way an obstacle to exempting the person from the sanction provided for, taking into account the subjective element and in virtue of certain circumstances.
In the reference note, it was also mentioned that The Supreme Court has understood in various rulings that in the judgment of infractions it is appropriate to follow the same line as for crimes, which implies moving within the general principles of criminal law; which means that this should be the rule despite the specificity of customs matters, since the opposite would imply a violation of the general principles of criminal law, given the punitive nature of the sanction imposed in customs violations. (Rulings: 311:2779; 303:1548; 297:215; 310:1822).
In conclusion, the note ended with these terms: In view of the rulings of the highest national court, following the same line in the case of infractions 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. If the difference between crime and infraction is qualitative or quantitative, the guidelines of general criminal law are applicable to contraventions. To consider that the difficulty involved in determining the guilt of the accused means an illusory punitive sanction is to arbitrarily impose an equally illusory differentiation between crime and contravention, given that both are judged with the imposition of penalties, beyond the fact that one is a deprivation of liberty and the other of a pecuniary nature.
Consequently, it must be considered that the basis of punishment is found in the actions of the author, 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.
It is therefore appropriate to add some consideration regarding the legal nature of the fine, the opportunity, merit and convenience of its application, its reasonableness and proportionality, in accordance with the fact investigated at the customs office through the relevant summary.
It should be noted first that the Supreme Court of Justice of the Nation has determined that the general provisions of the Penal Code are applicable to customs violations, according to which only the guilty party can be punished, that is, the person to whom the punishable action can be attributed both objectively and subjectively (2). It is therefore for this reason that the general principles of Criminal Law are applicable to violations. And it is for this reason, then, that a punitive penalty for violations can only be admitted if it is proven beyond a doubt that all the elements that configure the criminal type are present and that the person to whom the penalty is imputed is really responsible. Such consideration is found in a basic principle, through which responsibility is assigned to the guilty party, that is, the person to whom the punishable action can be attributed both objectively and subjectively. (3)
For example, in situations of force majeure, it has been taken into account that the absence of the subjective element of the accused did not correspond to the straightforward application of the punitive sanction of the infraction, due to the mere objective fact. In a ruling by the National Chamber of Appeals in Federal Administrative Litigation, it was held that "It should be remembered that in customs infringements, the verification of the objective fact generates a presumption of guilt, which means that it exists independently of any intentional element, which is why the offender is only released from liability when force majeure, fortuitous event or similar situations justify the failure to comply with legal duties, since they are completely unrelated to the intention of the obligated subject (art. 902 of the CA) (Chamber V, in re: «Compañía Elaboradora de Productos Alimenticios SA CEPA c/ANA s/ANA, file No. 11.188/96, of 11/11/99)”(4) It should also be noted that the term “presumption” does not mean the improper, automatic and reductionist consideration of the arbitrary imposition of a sanction.
Nature of the fine
This is a sanction applied as a consequence of illegal conduct, which generally has a purely repressive purpose. This also means that the criterion for imposing a fine implies a didactic reprimand. Therefore, it is not conceivable that there is a constitutionally acceptable fault or violation, as long as there is no specific injury to a legal right.
From this arise the principles of reasonableness and proportionality. The first of these even arises with constitutional support from art. 28 of the CN, as the principles, rights and guarantees enshrined in the CN cannot be altered by norms that regulate their exercise. In this sense, the appropriate proportionality must be given between the measures that the act involves and the purpose that it pursues, as one of the limits of discretionary action, thus being the ideal means of defense against arbitrariness the Public Administration. And when there is a disproportion, the sanctioning act becomes unfounded and arbitrary, and therefore, illegitimate. This criterion was established by the Supreme Court (5) and also the National Chamber in Federal Administrative Litigation has held: «The Judiciary is vested with the power to review administrative acts of a disciplinary nature that emanate from the Administration, including the possible scope of the intervention of the magistrates, not only the judicial control of their regularity, but also the reasonableness of the measures that the officials adopt in the exercise of their powers, so that the judges can annul them when they have incurred in manifest arbitrariness. (6)
As for reasonableness, the national Supreme Court has specified "The power to graduate the fine between the minimum and the maximum provided for in the law does not escape the reasonableness control that corresponds to the Judiciary with respect to the acts of the Public Administration, even when it is a matter of discretionary powers of the latter", adding that "Discretion does not in any way imply a freedom of extra-legal appreciation that prevents judicial review of the proportion or adjustment of the punitive alternative chosen by the authority with respect to the proven circumstances, in accordance with the purpose of the law.". (7)
Considering the timeliness, merit and convenience of the administrative sanctioning act, it is appropriate to take into account that said resolution act imposing a fine must be assessed in terms of its convenience, in addition to those elements that give reasonable value to the decision adopted.
Conclusion
From the above, it is concluded that the State must exercise its reaction in accordance with a criterion of proportionality and reasonableness to arrive at the appropriate application of a sanction, and not the application of sanctions per se, exhausted in its sole objective mention, since the mere objective consideration cannot lead to an arbitrary materialization of the State's punitive power. When in a given case, the alleged offender in the face of a recent event, agrees to comply with the relevant duties, for example, by paying the corresponding tax rights of an operation, what "instructive" sense would there be in adding the imposition of a fine? What would be its merit and convenience?
Perhaps it is time to consider some modification to our Customs Code, incorporating alternatives for resolving customs violations, even of a punitive nature, given the criminal nature of these, in order to reduce the huge number of cases and their consequent damages, both for the State and for the operators; for example, similar to a Probation or an Abbreviated Process, making the treatment of this type of offenses more effective and faster, especially when it comes to operators who do not register recidivism (which is not the same as reiteration), conforming to the logical sanctioning expectations of the State and the need for international trade not paralyzed by situations that could well be resolved in reasonable times, considering also that in many cases, the fine does not fulfill its preventive function, but ends up being a mere collection tool.
- Sueldo, Guillermo J. (2019, September 27). The subjective element in customs violations. Customs News. https://aduananews.com/el-elemento-subjetivo-en-las-infracciones-aduaneras-2/
- Errors 290:202 and Errors 311:2779
- Errors 271:297 ; 303:1548; 320:2271
- CNACAF Room II Herbas Ramírez César Antonio TF 27050 c/DGA 7/03/23
- Errors 306:126
- CNACAF Room V Delgadillo, Ernesto c/Ministry of Defense ED 177:503
- SCJN ED 183:966
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
