i.- Introduction
In recent years, there has been a growing trend to apply the principle of the most lenient criminal law (LPMB) in cases of smuggling related to foreign trade, especially those involving Textile Import Certificates (CIPT) and Advance Import Declarations (DJAI). Following the repeal of customs regulations, several defendants have been acquitted by applying the retroactive principle of the LPMB. However, this article analyzes the limitations of this interpretation and questions the reasonableness of such application in cases where the use of false documentation was verified.
ii.- The problem and its consequences
The core of the controversy in this type of case lies in the interpretation of the repeal of extra-criminal regulations, such as Resolution No. 343/2007 of the Ministry of Economy and Production, and its impact on the criminal liability of the accused. The National Chamber of Economic Criminal Appeals -CNAPE- has decided on several occasions to apply the LPMB due to the repeal of the aforementioned resolution, understanding that its elimination generates a more benign regulatory framework that should be applied retroactively based on the provisions of article 2 of the Argentine Penal Code.
However, this interpretation, it is humbly considered, does not take into account fundamental aspects of the crime of smuggling. The repeal of an administrative regulation does not change the fact that, at the time of the crimes, the actions of the accused constituted an infringement of the laws that remain in force.
The CNAPE's reasoning is based on the idea that, by eliminating the obligation to present the CIPT, the crime of smuggling could not be configured in the terms of articles 864 and 865 of the Customs Code. However, the crime of smuggling is not based solely on the extra-penal regulations that regulate the presentation of certificates, but on the act of circumventing customs control through fraudulent documentation (falsification of signatures), which directly impacts the protected legal asset: adequate customs control.
In this context, the application of the LPMB seems to ignore the nature of the crime. The falsification of customs documents is a typical and reprehensible conduct according to the Customs Code, and the modification of the documentary requirements does not annul the fact that the accused presented false certificates to obtain an undue benefit. As the Supreme Court of Justice of the Nation -CSJN- has pointed out in the precedent "Vigil", extra-criminal norms, such as ministerial resolutions, can change the way in which control is exercised, but they do not alter the criminal classification of fraudulent conduct.
On the other hand, it should be noted that the resolution of the Ministry of Economy did not introduce a decriminalization of smuggling, but rather a modification in the way in which customs documentation is presented. The replacement of the CIPT by the DJAI - and all the subsequent lineage - does not eliminate the obligation to present truthful documents, nor does it exonerate those who used false documents under the previous regulations.
Finally, the CNAPE ruling must also be reviewed in light of the "Cristalux" precedent, invoked on several occasions to support the application of the LPMB. In "Cristalux", the regulatory change was substantial, since it involved a complete liberalization of the exchange regime, which definitively altered the type of punishable conduct. On the other hand, in the smuggling cases under analysis, there was no decriminalization or liberalization of customs control, as will be attempted to be demonstrated with the subsequent analysis.
iii.- Jurisprudential analysis
As has been explained, the National Court of Appeals for Economic Criminal Matters (CNAPE) has, when issuing various rulings, cited relevant precedents such as the "Cristalux" case (Rulings 329:353) and others up to the "Vidal" ruling. In this context, the CNAPE reaffirmed its position of applying the principle of retroactivity of the most lenient criminal law, alluding to the criterion established by the SCJN in "Cristalux", where it was determined that favorable modifications to blank criminal laws, complemented by extra-criminal norms, must benefit the accused.
Thus, the CNAPE refers to the ruling “Vidal Matías F.” also from the CSJN of October 28, 2021. In it, it was resolved on the principle of retroactive application of the most lenient criminal law, regarding the “quantitative amounts” of tax criminal offenses. Likewise, regarding the quantitative amounts, but already in customs matters, the SCJN issued its decision in the recent precedent “Caravetta” of 3/5/2023 (Rulings: 346:407).
These two precedents, “Vidal” and “Caravetta” refer specifically to the change in the criminal type. “Vidal” refers to the change in the criminal type of evasion from Law 24.769 to that of Law 27.430; “Caravetta” refers to the change in the infraction type of minor smuggling - from $100.000 pesos established by Law 25.986 - to that of Law 27.430 - of $500.000 pesos. In other words, Law 27.430, in its art. 279, changed the criminal type of evasion and in its art. 250 raised the amount of the minor smuggling infraction.
However, the jurisprudence of "Cristalux" is not being questioned here. per se, but rather the application of guidelines for the proper use of the precedents of the Federal Supreme Court is proposed. In this sense, it is evident that the conflict raised in the case under analysis has no substantial relationship with the precedents cited by the CNAPE to resolve as it does. As the Supreme Court itself has stated, the circumstances of the case do not present a significant analogy with those mentioned by the Honorable Chamber. Both in their factual and doctrinal aspects, these precedents do not fit what happened in the present case.
It should be noted that the Supreme Court has made it clear that, for a precedent to be correctly used, there must be similarities in both the facts and the legal aspects. To this end, the major premise of the reasoning derived from a precedent must be aligned with that of the case under discussion. In other words, the validity of a precedent as such depends on its capacity to reflect the conditions that motivated its formulation, something that would not be observed in the application made by the CNAPE in the subject under study. Thus, citing the doctrine of the Supreme Court in a context without substantial similarity, as has been attempted in this case, constitutes an incorrect use of precedents. This practice not only distorts the original meaning of the doctrine, but also evades the guidelines established for the rigorous and responsible use of judicial decisions (342:278).
iv.- Brief doctrinal review
In order to continue to thoroughly analyze the issue, it is important to note what is developed in Dr. Bonzón Rafart's book, where he states that for this LPMB principle to be applied retroactively, there must have been a decriminalization, let's say, that the previously punishable conduct ceases to be so due to a legislative change. In the case at hand, there was no modification in articles 863, 864 or the aggravating factor of 865 of the Customs Code (CA); what existed was a change in a Ministerial Resolution, an administrative act genetically derived from the administrative function, which clearly does not amount to a legislative modification.
For her part, Dr. Robiglio, in her work “The Principle of the Most Benevolent Criminal Law” (2023), exhaustively analyzes the precedents of the most benign criminal law, placing special emphasis on the “Ayerza” ruling, in which Dr. Petracchi’s dissent served as the basis for the “Cristalux” doctrine. Robiglio emphasizes that the principle of retroactive application of norms complementary to criminal law does not apply when they only regulate differently what was previously permitted, but only when they grant greater freedom of behavior.
In this regard, the case of customs regulations is paradigmatic. Ministerial Resolution No. 343/2007, which regulated import certificates for textile products, was repealed in 2013 by General Resolution No. 11/2013 of the AFIP. However, at no time was customs control ceased, as evidenced by General Resolution No. 3252 of 2012, which introduced the DJAI, a mechanism to streamline and anticipate customs control. These types of changes cannot be considered as a liberalization of punishable conduct, but rather as an administrative adaptation to the current circumstances of foreign trade - a predominantly dynamic matter - without modifying the criminal type.
Thus, the precedent "Cerámica San Lorenzo" cited by Dr. Petracchi in "Ayerza" is applicable to the present case. This precedent establishes an exception to the principle of retroactivity when there is no change in the social assessment of the facts, but simply an update in the administrative control mechanisms. In this sense, article 120 of the Customs Code, which establishes the control powers of the Customs, remained intact over time.
Therefore, considering the retroactive application of an administrative regulatory change, as CNAPE has done, could lead to what Carlos Santiago Nino called a case of "silly anomie." According to Nino, this situation occurs when a collective action becomes inefficient and frustrating for the agents involved, which in the particular way of resolving issues such as the one developed here, would result in an ineffective use of judicial and social resources.
In short, the regulatory change in customs matters does not constitute a more lenient criminal law in the terms of the "Cristalux" ruling, since the conduct complained of remains punishable under the Customs Code. Thus, the "Vigil" ruling of the SCJN, which also establishes exceptions to the principle of retroactivity in customs contexts, is more appropriate to be applied in this case.
v.- Conclusions
In conclusion, it will be said that the principle of the most lenient criminal law, recognized constitutionally and frequently applied in the criminal field, plays a key role in protecting the rights of the accused. However, its application in the customs field must be carefully evaluated to avoid distorting the central objective of customs control: protecting the public interest through the proper exercise of such control and thus ensuring transparency in international commercial operations.
In the smuggling cases studied, the presentation of false certificates constitutes conduct that violates customs control. The regulatory modification of documentary requirements, such as the repeal of the CIPT and its replacement by the DJAI, SIMI, SIRA, and SEDI, does not justify the elimination of criminal charges for those who committed smuggling while the original regulations were in force.
In this way, the legal analysis shows that the repeal of an extra-criminal norm should not be confused with a decriminalization of the conduct. In this sense, the Supreme Court's precedent "Vigil" offers a more appropriate guide to interpret these cases, highlighting that the change in administrative regulations does not annul the criminal classification of smuggling conduct.
In conclusion, the crime of smuggling, as defined in the Customs Code, remains in force and must be applied rigorously to ensure proper control of borders and foreign trade.
- National Chamber of Appeals in Economic Criminal Matters, ruling CPE No. 1198/2012 “R. et al. s/Violation of Law 22.415”.
- Article 2 of the Argentine Penal Code.
- Supreme Court of Justice of the Nation rulings: “Legumbres” (Rulings 312:1920), “Cristalux SA” (329:1053), “Vigil” (323:3426), “Vidal Matías F.” (346:407), “Caravetta” (Rulings: 346:407), “Freire Diaz” (342:278), «Cerámica San Lorenzo» (Rulings: 311:2453), and “Ayerza” (321:824).
- Bonzón Rafart, JC, “Customs Criminal Law” – 2022, Ariel, Ed. 1°, p. 176; Robiglio, M. Carolina, “The Principle of the Most Benevolent Criminal Law” – 2023, Ed. 1°, p. 180; Carlos S. Nino, “A Country Outside the Law”, Ariel, ed. 4°, p. 155.
The author is a lawyer from the General Directorate of Customs and has a diploma in Customs Law from the Catholic University of Córdoba.
