In Buenos Aires, on September 18, 2003, the Judges of Chamber E, Drs. D. Paula Winkler, Gustavo A. Krause Murguiondo and Catalina García Vizcaíno (with the second of the aforementioned as president), met to rule on the case entitled: LA ECONOMíA COMERCIAL SA DE SEGUROS GENERALES s/rec. of appeal, file TFN No. 15.733-A and its cumulative case;
Dr. Winkler said:
I.- That on pages 5/6 and back, the signature of the epigraph, through its representative, files an appeal against the resolution of the Buenos Aires customs of 18.4.01, notified on 30.4.01 (see F4), issued in file No. 603.031/98. It challenges the procedure printed in the summary as null and void since the importer was not notified, to which effect it highlights that the verification of the address reported in said summary has no relation to the policyholder. It challenges the tax assessment because it considers it arbitrary, maintains the reservation of the federal case and requests that all actions taken be declared null and void and the appealed resolution be revoked, with costs.
That on pages 20/22 the tax representation answers the transfer conferred. After relating the procedure printed in the summary, it refers to the circumstance that neither the importer nor the plaintiff could disprove the presumption that is produced by the lack of compliance with the obligation to re-export in term the merchandise subject to suspensive import destination. It considers, therefore, that the sentence imposed on the buyer, and the tax requirement are in accordance with the law. It cites doctrine and jurisprudence in its favor and requests that the appeal be rejected, with costs.
II.- That, having ordered a measure, on pages 84 ref. and vta. the Vocalías with customs jurisdiction in full resolve to accumulate file 16.938-A to 15.733-A, of the same title.
That in the file cited first, the same plaintiff appealed, this time against the resolution issued in file No. 600.839/00, by which - in relation to the same temporary import clearance, that is, 4298-8/97 - another sentence was imposed and taxes were demanded from the insurer.
On fs. 64 ref. /67 ref. appears the appeal filed by the same appellant, who denies having issued any policy covering the loss reported (see fs. 64 ref. vta. of autos), attacks art. 972 of the CA as unconstitutional and cites with reservations the decision made by this Tax Court en banc in Microsistemas SA regarding the additional applicable to temporary imports made under the regime of decree 1554/86 and Res. MEYOSP No. 72/92. She challenges the tax assessment, offers evidence, maintains the reservation of the federal case, requests that the insurance be declared non-existent and, in due course, that the challenged resolution be revoked, with costs.
At pages 80 ref./82 ref. and vta., the attorney general's office replies to the notification made by the attorney general's office. It replies to the exception of lis pendens filed by the appellant (pages 80 ref. vta., sic). It says that it is not unaware that two administrative proceedings have been initiated for the same dispute, but it notes that, since both had the intervention of the appellant, the fact is that there is a different cause for the appeals, for which reason it considers that said exception should be rejected, without costs. It then refers to aspects related to the insurance contract and states that the loss had to be configured, for which reason it requests that the appeal be rejected, with costs, in due course. At pages 129, the appellant is asked to clarify whether its assertion about not having issued any policy implies imputing the certified copy of the same, in the file, to be falsified, which is not contested. At pages 134 The files are sent to Chamber E, which passes judgment, so the case is ready to be resolved.
III.- That no exception has been raised in this case by the appellant.
IV.- That from the comparison of both administrative proceedings n° 603.031/98 and 600.839/00 it appears that, with respect to the same temporary import clearance, that is to say the aforementioned n° 4298-8/97, two different sentences have been imposed. Indeed, on pages 48/49 of the first of the cited files, judgment n° 2094/01 is issued and on pages 34/35 of the second, resolution n° 759/02 is issued. In both cases, the same importer Ciorla, Luis R.- and the same insurer are sentenced.
In light of the above, it is my opinion that it is necessary to first analyze the effects of this processing of two investigations for the same infraction in relation to the same facts and the alleged offense.
That in this case both rulings arrive at different results regarding the amount of the sentences and the tax requirement.
That the highlighted circumstances are in themselves evidence of a serious, manifest and incurable irregularity, which contravenes the principle of non bis in idem, in force in criminal matters, with constitutional support. Such rule is contained in art. 897 of the CA, which expressly provides that no one can be convicted more than once for the same act considered an infraction.
That, for the reasons stated above, in my opinion it is appropriate to refer to the judgment in re: Minassian, Juan Miguel v. DGA s/ appeal, file TFN No. 17.895 and its cumulative judgment, judgment of this Court, dated 20.8.03, specifically with regard to the declaration of nullity, which is also requested in the proceedings to be made ex officio.
A certified copy of said precedent is added by the Actuary, for the greater illustration of the parties, forming its grounds and conclusion regarding point 2 of said sentence, part of this document.
V.- That, for the reasons stated above, I vote to declare the absolute and incurable nullity of all the actions taken in the investigations processed in files No. 603.031/98 and 600.839/00 following the complaints filed on page 6 of the latter and on page 2 of the first of those mentioned, therefore including all subsequent actions, as well as the respective openings of investigations and other acts issued as a result. The nullity that I propose to declare extends to Resolutions No. 2094, dated 18.4.01 and No. 759/02, dated 13.3.02. Therefore, the DGA must initiate new investigations regarding the facts linked to DIT No. 4298-8/97. All of this, with costs to the Treasury.
Dr. Gustavo A. Krause Murguiondo said:
That the simultaneous processing, from a certain point onwards, of two investigations in relation to the same facts, a situation that occurs in the case and that continues in the appeals before this Court, gives rise to the grounds for nullity referred to in the preceding opinion. Added to this is the fact that resolutions 2094/01 and 759/02 having been issued, which imply sentencing twice for the same facts, deferring said sentences in the amounts claimed for fines and taxes, said situation prevents knowing what the real punitive and tax claim of the Treasury is.
In the opinion of the undersigned, this situation cannot be validated or corrected later, not only for constitutional reasons, but also because the procedural distortions it causes may affect the modalities of the rights of defense involved and their proper exercise.
That, for the reasons stated above, I substantially agree with the preceding vote.
Dr. Catalina García Vizcaíno said:
I) That the facts have been recounted in points I to IV of Dr. Winkler's vote.
It should be added that Resolution No. 2094/01 issued on pages 48/49 of file No. 603.031/98 sentenced Ciorla Luis Rómulo to pay a fine of $42.316,30, and charged him and the appellant with taxes for $81.611.
That, subsequently, PLA Resolution No. 759 of 13/3/02 issued on pages 34/35 of file No. 600.839/2000 sentenced Ciorla Luis Rómulo to pay a fine of $62.466,96 and imposed a tax charge of $85.374,68.
Since both resolutions refer to the same office, PLA Resolution No. 759 of 13/3/02 has obviously violated the principle of non bis in idem, which is why I support the nullity of this resolution and the subsistence of Resolution No. 2094/01, for the reasons I explain in the following point.
II) That there is no doubt that in file No. 600.839/2000 the principle of non bis in idem has been violated.
That he held that: The principle non bis in idem is enshrined in art. 897 of the CA. This principle, which prohibits double prosecution for the same act, is implicitly included in the context of declarations, rights and guarantees (art. 33 of the CN), and has been broadly included in art. 1 of the CPP. However, it was formulated in a restricted manner by art. 897 of the CA, by virtue of the fact that this rule provides that no one can be convicted more than once for the same act contemplated as an infraction, unlike the CPP, which prohibits (broadly) even that someone be criminally prosecuted more than once for the same act. This means that the Customs may impose sanctions for infractions (e.g., for unjustified possession of foreign merchandise for commercial or industrial purposes) even if, based on the same objective and subjective elements of the facts, an acquittal judgment has been issued (art. 402 of the CPP) or a dismissal order (arts. 334 to 338 of the CPP), or, of course, the preventive proceedings may be ordered to be closed because no crime has been established (art. 195 of the CPP), or the fiscal request may be rejected (art. 195 of the CPP), or the complaint may simply be dismissed (art. 180 of the CPP) for any of the customs offenses contemplated in title I of section XII of the CA. In these cases, there is no identity of cause, since the judges and courts in economic and federal criminal matters do not have original jurisdiction in matters of customs infractions. If, on the other hand, a conviction had been handed down, for the same facts and persons, there would be no grounds for proceedings for violations of Title II of Section XII of the CA, and the provisions of Article 913 of the CA would apply.
However, laws must be interpreted in accordance with the national Constitution, so that if in the customs procedure for infractions (without having substantiated a customs procedure for crimes) the triple identity of subject, object and cause (...) occurs with respect to a person, this person is protected by the principle of 'non bis in idem', even if he or she has not been convicted for the same act, but has been acquitted or acquitted, preventing him or her from being subjected to a new trial. Thus, the dismissal (...) of art. 1099 of the CA and the acquittal of art. 1112 of the CA (approved in the terms of art. 1115 of the CA) prevent the initiation of a new procedure for infractions for the same act and beneficiary, applying the principles of arts. 17 and 33 of the CN (Tax Law, Volume II, pp. 96/97. Depalma Buenos Aires, 2nd Edition, 2000).
In this case, the appeals against the contested resolutions must be treated jointly due to the identity of the subjects, object and cause.
Considering that PLA Resolution No. 759 of 13/3/02, issued in file No. 600.839/2000 (see pages 34/35 of that file) affected the aforementioned principle of non bis in idem, it is necessary to declare its nullity.
I support the subsistence of Resolution No. 2094/01, given that in my opinion the application of the principle of non bis in idem does not imply the annulment of all resolutions that may refer to the same fact, but only of that or those that violate the single judgment for the same fact.
III) That the way in which this resolution is voted on by the majority renders unnecessary the consideration of the grievances formulated regarding Resolution No. 2094 of 18/4/01.
That's how I vote.-
Pursuant to the above vote, by majority, IT IS RESOLVED:
Declare the absolute and incurable nullity of all the actions taken in the investigations that were processed in files No. 603.031/98 and 600.839/00 following the complaints made on page 6 of the latter and on page 2 of the first of those mentioned, therefore including all subsequent actions, as well as the respective openings of investigations and other acts issued as a consequence. The nullity that I request to be declared extends to Resolutions No. 2094, dated 18.4.01 and No. 759/02, dated 13.3.02. Therefore, the DGA must initiate new investigations regarding the facts linked to DIT No. 4298-8/97. All of this, with costs to the Treasury.
Register and notify the parties as a matter of urgency. Return the administrative proceedings in due course and file them.
