Having made this brief clarification, it is now time to focus on the subject of this note, which is the power that the law grants to the AFIP for preventive closures. In this regard, we know that said agency has, according to Law 11.683 and its amendments, the power to preventively close businesses when they estimate that certain tax irregularities are being committed.
The AFIP maintains that the possibility of defense and due process have not been violated, since the closure is only preventive, for a short period and with immediate notification of the same to the competent judge, although the same law does not establish a term for this notification to the respective judge. On the other hand, the fiscal control body also maintains that in this way it is avoided that the detected illegality continues to occur. It is also often maintained that the preventive measure carries with it the possibility of an administrative and also judicial instance, thus, granting the alleged offender the possibilities of due process.
If we refer to the initial clarification, the specification of legal norms should not violate what is established in the National Constitution; that is, said specification should no longer be used as an excuse to violate constitutional rights, thus creating a parallel system to our legal system. The measure, even preventive, implies a sanction based on legal norms and as such, should be in accordance with the general norms of Law and not a sort of collateral Law. Arguing that preventive closure is justified because it prevents the alleged violation from continuing is like detaining a citizen for three days because he could be committing a crime and meanwhile waiting for the preventive authority to notify the competent judge; or admitting the alleged legality of the authorities of the Central Bank to raid alleged exchange houses that operate irregularly, without judicial authorization. Due process is supported from the beginning, not as a remedy to solve constitutional violations.
The Court has already held that the validity of certain powers of the tax authority is subject to the condition that such exercises do not imply depriving the Judiciary of powers. According to the Court, to admit the contrary would imply authorizing the suppression, or at least, the omission of the principle of separation of powers, without whose validity the republican form of government is left without a basis to support it and, consequently, state functions are potentially unhinged with the consequent abandonment of human freedoms (Judgments 242-646 Fernández Arias)
The Federal Court of San Martín, in the case BITURON, HORACIO ANDRES S/ PREVENTIVE CLOSURE APPEAL; held that article 35, paragraph f of law 11.683, by granting AFIP officials the power to unilaterally close a commercial establishment, without even having to wait for the judge's consent, also does not comply with the aforementioned constitutional principles and guarantees, especially when the intervention that the law assigns to the magistrates is subsequent, with the measure being in full execution.
The Court held that the damage caused to the merchant by the postponement of judicial intervention was evident, since the closure measure must thus be borne by the taxpayer without proper and prior judicial intervention on what is a sanction, even as a prior to the subsequent administrative intervention.
The Federal Court of La Plata also declared the unconstitutionality of the AFIP's powers regarding preventive closures, thus ratifying a first instance ruling by Federal Judge Manuel Blanco; warning that said powers imply an illegitimate delegation of penal powers, thus demonstrating their unconstitutionality.
In my personal opinion, it is obvious that criminal sanctions that are in the hands of administrative authorities without prior judicial intervention violate effective judicial protection and the correct division of powers and functions. And I go further at the risk of causing a debate that goes beyond the concepts of this note. But it is time to think of a true republic and give criminal powers to those who really have them, that is, the Judicial Branch. Just as in the City of Buenos Aires police edicts were declared unconstitutional, since an agency of the Executive Branch had the power to dictate norms and apply sanctions, we should start thinking about expanding judicial jurisdictions or their own powers, to prevent agencies such as the AFIP from applying sanctions without prior judicial intervention. Also, regarding the customs powers to conduct investigations and judge them for customs violations, since in this case it has the power of judge and party, even though there is the possibility of subsequent appeals, since before a first sanction by the agency that could be unjustified, the damage would have already been produced. Also included in these questions are the procedures that the AFIP usually carries out in irregular financial institutions, known as caves and without a judicial search warrant. When there is so much clumsiness, bad conclusions are generated.
As well as proposing that we might one day enter the civilized world with full oral proceedings.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
