At the recent Customs Law Conference held in Uruguay, one of the topics discussed by the distinguished speakers was the principle of proportionality of punishment.
In this regard, Dr. Lorena Bartomioli (1) pointed out that, when evaluating the proportionality of a penalty, abstract proportionality must be differentiated from concrete proportionality. When referring to concrete proportionality, she asked what can the judge do?, indicating that, in most cases, it is annulled so that Customs can issue a new ruling adjusted to this principle and bases on which the Court reviewed it. But she considered that it would be more advisable for the same judge to address the issue and resolve it, to avoid delays and above the specialty of certain Courts. But, ultimately, there is jurisdictional control regarding this issue of sanction and its proportionality. Rescuing that, there are international standards that mark a path regarding the proportionality of penalties, such as Art. VIII of the GATT 1947 Agreement and the recent Trade Facilitation Agreement. Based on this analysis, he referred to the Argentine Customs Code, alluding to articles 915, 917 and 927, which act as the executing arms of this principle of proportionality. He pointed out that, with respect to the margin of attenuation, the power to apply it should reside with the judge, and not be conceived as an attribution of the administration itself. Attentive to the application of the principle of proportionality, the judge must have the possibility of adjusting the sanction through this tool. He concluded that the principle of proportionality lives on its own, and can be supported without resorting to criminal law, observing in Customs Law itself the scope of its corresponding application scheme.
The mitigation of article 916 and proportionality
Based on these definitions, with which we fully agree, it is necessary to observe what happens with the mitigation of the penalty prescribed by article 916 of the Customs Code. Here, it is worth remembering that the regulatory framework referred to establishes that, "when there are sufficient reasons for mitigation, the penalty to be applied may be reduced below the minimum limits provided for in this Title, subject to the provisions of article 1115."
In order to do so, it is noted that the rule sets out with greater precision the true power of the judge to consider the existence of real reasons that may give rise to a mitigation of the sanctions provided, establishing the possibility of reducing the penalty below the minimum. This is closely related to the principle of proportionality. Obviously, as regards fines, they can be estimated between a minimum and a maximum as it appears in the different violations of the Customs Code, which requires that for their determination a clear justification must be observed with the principles of reasonableness and proportionality between the penalty to be applied and the fact subject to imputation. Likewise, article 915 of the CA itself sets out different guidelines to follow for the graduation of penalties, being that they take into consideration both the violation itself; that is, its nature and seriousness, as well as the personal conditions of the offender, in order to whether or not he has a history of customs violations or crimes. This is when it should be noted that the decision on the penalty is based on the principle of reasonableness of the rules, which is protected by Article 28 of the National Constitution.
Dr. Daniel Emilio Morin (2) was able to maintain that, “criminal law protects only a part of legal assets, and even that portion not always in a general way, but frequently (as in the case of property) against specific forms of attack and of a certain magnitude; such limitation arises from another principle of criminal law, that of proportionality, which in turn derives from the republican principle and demands the existence of a certain relationship between the injury to the legal asset and the punishment.” For his part, Dr. Juan Francisco Linares (3) reminds us that, “there is an adjective due process and a substantive due process. The first of these is identified with what in Argentina is called “due process” or “defense of trial”, that is to say that it is a procedural guarantee, tending to the defense of the rights of a person in a judicial process.
The second is identified with the criterion of reasonableness that the Court sets forth. The cited author, seeking a conceptualization of substantive due process, maintains that it is a standard, pattern or module that allows determining, within the discretion that the Constitution leaves to the legislator, to what extent the latter can restrict the freedom of the individual. Now, attempting a more formal definition, he maintains that this guarantee of reasonableness is the constitutional requirement that laws must contain an equivalence between the antecedent fact of the legal norm created and the consequent fact of the performance or sanction, taking into account the social circumstances that motivated the act, the ends pursued with it and the means that such act establishes as performance or sanction.
From this, it is relevant what Dr. Guillermo AF López (4) highlights, in that, “all powers must adhere, in the exercise of their functions, to what the Constitution mandates. The Judicial Power must act in such a way that it does not affect the guarantee of defense in court (due adjective process) and the Legislative Power must not alter the substance of the rights by regulatory means (due substantive process). As for the Administrative Power, it must observe both. Ultimately, this principle has to do with the application of the fair penalty and not the one that is most burdensome for the subject, since cruel punishment is not necessarily synonymous with fair punishment. Thus, it has been pointed out that the types require affectations of legal assets; the penalties reflect the legal disvalue of the typical conduct and, therefore, must keep a certain proportion with the magnitude of affectation of the asset; When the magnitude of the damage to the good is very small, this necessary proportionality is broken, thereby revealing that the type of crime did not intend to cover those conducts with insignificant damages. Otherwise, the constitutional provision that prohibits cruel punishments would be violated. “Cruel” punishment is not the antonym of “merciful” punishment, but of “rational” punishment, that is, adequate to the magnitude of the injustice.”
In this way, any application of the normative precepts that have a causal link for the evaluation and application of the penalty, find support in the principle of reasonableness and proportionality, enshrined in the National Constitution. It is the duty of the judging body, when deciding, to base the elements that have led to the imposition of the penalty. Remembering that jurisprudence has established as guidelines for this path the offender's background, whether he has acted in good faith, whether the value of the merchandise in question is low, etc.
Power of its application
On the other hand, Art. 916 of the CA, when referring to the application of the mitigation of the penalty, establishes that it must act in accordance with the provisions of article 1115 (5) of the Customs Code. This reveals that in the case of decisions such as the one in question, the approval of the General Directorate of Customs will be required. In virtue of this, it is eloquent that establishing this mitigation is an attribution that the legislator rested on the power of whoever is administering justice, which would be in the first instance of the Customs itself. Which leads us to a question, regarding whether such power is limited only to the Customs Administration.
When resolving the application of this type of attenuation enshrined in article 916 of the CA, the Dr. Miguel Licht (6) In its vote, it held that, “in relation to the request of the plaintiff, regarding the attenuation of the fine in the terms of art. 916 of the CA, it should be noted that, in the case of an administrative act issued in the exercise of discretionary powers, it is not appropriate for this jurisdictional body to replace the competent administrative body in determining the applicable sanction. I have said so when publishing in doctrine when holding that, although it is possible to recognize the judge's authority to verify compliance with the regulated elements and disqualify the administration when it fails to observe them, this does not imply that the judge is authorized to replace the syllogism practiced by it, unless the premises that compose it are purely regulated, in which case, the judge, as we have previously noted, would see his role reduced to activating the factual assumption provided for in the rule (Cfr. The sanctioning power of the Administration and its judicial control in the face of normative reality, ED-DCCLXIV-708).”
We do not support this position, since, as previously indicated, the penalty must be reasonable in terms of proportionality between the act that is the subject of the charge and the circumstances that show its commission, including the offender's background and the conduct that the accused may have carried out in relation to the subsequent infraction; therefore, if the customs administration applies a sanction, which in its result may show an affectation of this principle, it is eloquent that it is the task of Justice to review the possible violation of this clear constitutional guarantee and this includes the Tax Court of the Nation.
Otherwise, powers would be prioritized that the legislator has not considered possible to be absent from the due review in the face of arbitrariness that may arise, whether due to omission or unfounded denial regarding the applicable penalty, taking into consideration all the precepts established by the norm for its resolution, including within these reviews the possibility of finding that the attenuation component that the law prescribes for these cases has been reached in accordance with Art. 916 of the CA.
Thus, it may be the case that, in the face of the self-reporting made by the taxpayer, even if it does not fall within the scope of article 917 of the Customs Code, due to a lack of form, it is true that such conduct may result in the application of an attenuation in accordance with the provisions of article 916, which is the subject of comment here. Since such a procedure finds a foundation that supports the spirit of this rule, which is based on the attenuation of facts such as the one in question, which should not always be in line with the fact reproached, but rather with the behavior of someone who, noticing an error committed, approaches the customs service to report it and this, in various circumstances, may happen outside the established deadlines, but before being noticed by Customs, which merits observing a conduct aligned with what should be, acting in good faith and providing valid support to establish an attenuation of the sanction, serving for this the precept of Art. 916 of the CA
Therefore, if there are circumstances that justify applying a mitigation of a penalty in accordance with the framework established by the Law, if it is not ordered by the customs administration, it cannot be conceived as being outside the protection of reviewing such a decision by means of the resources imposed by the law to reach the higher authorities that have the power of jurisdictional control.
Conclusion
Thus, we consider that the mitigation regulated by the Customs Code in Art. 916 is based on the principles of proportionality and reasonableness for its possible application. Consequently, taking into account that all punishment must safeguard the guarantee of proportionality and reasonableness with the fact that is the object of reproach, and the control of legality of this measure must rest on who has the power of jurisdictional control, that is, the Judicial Power by virtue of the National Constitution, we must conclude that, as regards the budgets that the law teaches to apply the correct sanction in terms of due justice, there is no possibility of limiting jurisdictional control; in this, the mitigation that Art. 916 of the CA promotes must be included.
- Dr. Lorena Bartomilio, “On proportionality in the imposition of sanctions”, at the 2024 Academic Conference on Customs Law. Ref.: Highlights of the XI Academic Conference on Customs Law in Uruguay, 15.08.24/XNUMX/XNUMX, Aduana News.
- Dr. Daniel Emilio Morin, vote in judgment of 10.07.2017, Criminal and Correctional Court of Appeal, Chamber 2, CCC 26265/2014/PL1/CNC1. Judges Niño and Sarrabayrouse joined.
- Dr. Juan Francisco Linares, «Reasonableness of the laws» Ed. Astrea, 1970. Referenced by Dr. Guillermo AF López, “The impact of constitutional jurisprudence on due process”, Volume La Ley, p. 920, Id SAIJ: DACA980155.
- Dr. Guillermo AF López, “The Impact of Constitutional Jurisprudence on Due Process,” Volume La Ley, p. 920, Id SAIJ: DACA980155.
- Law 22.415 (Official Gazette 23.03.1981/1115/5.000), Article 916: Resolutions by which the administrator: a) Dismisses the complaint, dismisses the case or acquits the case, provided that the customs value of the merchandise involved in the case exceeds FIVE THOUSAND PESOS ($5.000); b) Mitigates the penalty, in accordance with the provisions of Article 41, provided that said mitigation is for an amount greater than FIVE THOUSAND PESOS ($25.986). (Article replaced by Article 5 of Law No. 1, Official Gazette 2005/XNUMX/XNUMX.)
- Dr. Miguel N. Licht, vote in the case LATIN COMPANY SA v. DGA s/ Appeal”, File No. 30.921-A., judgment 28.05.2024/XNUMX/XNUMX, TFN, Chamber G, Dr. Claudia Beatriz Sarquis and Dr. Horacio Joaquín Segura agree.
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The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
