Ruling of the Supreme Court of Justice of the Nation dated 10/03/2020. Consubstantial Precedent with the Ruling of the Supreme Court of Justice of the Nation. Current Resolution of an Appellate Court that Addresses Article 23 of the Penal Code. Framework of the Legal Nature of Confiscation Regulated in Article 23 of the Penal Code. Characteristics of Confiscation in Customs Regulations.
By Drs. Claudia MARINELLI (Director) and Alejo Osvaldo BASUALDO MOINE (Member) Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice
I. SUPREME COURT OF JUSTICE OF THE NATION RULING DATED 10/03/2020: Considering that confiscation or forfeiture -hereinafter both names will be used interchangeably- from the perspective of the Penal Code (CP) constitutes a pecuniary consequence, accessory to the sentence, which falls on those instruments of the crime and the effects derived from it, which belong to the convicted, regardless of their degree of participation (ZAFFARONI, ALAGIA, SLOKAR, CRIMINAL LAW, General Part, Buenos Aires, 2005, page 987; SOLER, ARGENTINE CRIMINAL LAW, Volume II, Buenos Aires, 1988, pages 459/460; FONTAN BALESTRA, TREATISE ON CRIMINAL LAW, Volume II, Buenos Aires, 1995, page 266; CREUS, CRIMINAL LAW, CRIMINAL LAW, General Part, Buenos Aires, 2003, pages 518/519), certain differences will be highlighted that are observed in relation to the general conceptualization of this institute in the field of the customs regime.
In order to carry out a brief analysis of the characteristics of the institute, based on the regulation specified in the CP, as it constitutes its starting point for the adaptation carried out by other regimes that impose punitive measures, a summary of the Ruling of the Supreme Court of Justice of the Nation (SCJN) will be made in the framework of the case "RIQUELME, Jean Manuel Marie and others s/ Violation of law 23.737 (article 5, paragraph c), CSJ 204/2015/RH 1. The same was issued on 10/03/2020.
In this regard, it is worth highlighting that, with regard to the course of the case on which the SCJN issued a ruling, the Third Federal Criminal Court of San Martín, Province of Buenos Aires (TOCF3SM) sentenced Juan Manuel Marie RIQUELME to 3 years in prison, legal accessories and a fine of fifteen thousand pesos, for considering him the organizer of drug trafficking in the form of storage aggravated by the participation of three or more persons, based on article 12, section 7, paragraph c) of law 5.
In what is of specific interest here, the TOCF3SM ordered the confiscation of two cars and a property (article 23 CP and 30 in fine of law 23.737). (1)
The sentence was appealed by the various defendants, and Chamber II of the Federal Criminal Cassation Court (CFCP) accepted the appeal filed by the defense of R, solely with regard to the confiscation of the property, annulling that dispositive point of the judgment.
In order to reach this solution, the majority members of Chamber II of the CFCP issued their opinion as follows: Dr. Angela LEDESMA argued that the confiscation measure was not properly founded and, therefore, implied an excess of jurisdiction, since, from the minutes where the abbreviated trial agreement was recorded, it did not appear that the Representative of the Public Prosecutor's Office before the TOCF3SM had requested it. In turn, Dr. Alejandro SLOKAR, adhered to the "supra" mentioned vote, only in relation to the nullity of the confiscation of the property, on the understanding that the accusatory principles had been violated and NE PROCEDAT IUDEX EX OFICIO.
Against this ruling, the Attorney General filed an extraordinary appeal before the CFCP, which was denied by Chamber II of said Court, leading to the filing of the complaint that will be addressed "infra."
The representative of the Public Prosecutor's Office described the ruling of the Second Chamber of the CFCP as arbitrary, arguing that, due to an alleged violation of the right to defense and due process, the power granted to the courts to individualize the sentence to be imposed on a convicted person was dogmatically limited, adding that the criterion of the Court of Cassation, due to an unreasonable exegesis, distorted the regulations applicable to the case, deviating from the purpose orthodoxly pursued for the application of that sanction.
He also added that the adopted attitude puts into crisis the commitment assumed by the Argentine State before the international community when ratifying the United Nations Convention against Trafficking in Narcotic Drugs and Psychotropic Substances, in relation to the adoption of the necessary measures to confiscate the goods and products used to commit the crimes defined in the aforementioned international instrument.
At the instance of the SCJN, the Attorney before it, Dr. Eduardo Ezequiel CASAL, essentially held that, as is clear from the doctrine of the highest court, the duty of the magistrates, whatever the requests of the prosecution and the defense, or the qualifications that they themselves have formulated on a provisional basis, consists in specifying the criminal figure that they judge, with full freedom and exclusive subordination to the law, from where, given the authorization that the accusatory activity granted to the TOCF3SM, the constitutional requirement is limited to the correlation between the fact that was the subject of the accusation and the one that was considered in the sentence, for which reason within that factual limit, the judge has the power to modify the sanctions requested by the accusing body (SCJN: Fallos: 237:190; 312:540).
The Attorney General, Dr. CASAL, adds that Chamber II of the CFCP also did not develop any argument to explain how, in the case at hand, the seizure of the property, ordered without a fiscal request, prevented the full exercise of defense that the accusatory principle seeks to protect.
For this reason, the opinion of the Attorney General considers that the decision to annul the confiscation as ordered by Chamber II of the CFCP should have been based on a specific violation of the right of defense. It points out that, in addition to the existing debate regarding the nature of confiscation, that is, whether it is an accessory penalty, civil action or direct administrative coercion, national doctrine agrees in maintaining that it constitutes an accessory pecuniary consequence of the conviction, which falls on those instruments of the crime and the effects derived from it, which belong to the convicted, regardless of their degree of participation. (Conf., among others, ZAFFARONI, ALAGIA, SLOKAR, CRIMINAL LAW, General Part Buenos Aires, 2005, page 987 and other authors and works, "supra" cited).
The ruling highlights that from the tenor of article 23 of the Criminal Code, it is clear that confiscation is inherent to the conviction, and therefore, once the conditions for its application have been verified, it becomes a legal consequence not subject to availability or subject to the discretion of the prosecution.
In addition to the above, it should be added that Chamber II of the CFCP annulled the confiscation, ignoring the tenor of article 30 in fine of law 23.737, which is why it was undeniable that said confiscation was mandatory.
It is that, considering it proven that the property in question was part of the infrastructure of the company "STAR COVER EVENTOS" and that R provided it to carry out drug trafficking, to which must be added that he directed it as its sole and true responsible party, it became evident that the TOCF3SM had open jurisdiction to order its confiscation, even if the Prosecutor had not requested it.
Hence, the argument of Chamber II of the CFCP, referring to the fact that, by ordering the confiscation, the TOCF3SM aggravated the penalty requested by the Public Prosecutor's Office, in violation of the accusatory principles and NE PROCEDAT IUDEX EX OFICIO, becomes unfounded, from which, the sentence issued by the latter, based on the unfounded violation, becomes disqualifiable.
Based on this and the grounds set forth by the Attorney General of the oral court, the opinion of the Attorney General, Dr. CASAL, maintains the complaint appeal filed. Signed Dr. Eduardo Ezequiel CASAL.
In the procedural opportunity to resolve, the SCJN, after a brief account of the facts and legal circumstances that surrounded the species, understood that the complaint was formally admissible because it met the required requirements, to which it added that, since it denounced a violation of the guarantee of defense in court, due to the violation of article 18 of the National Constitution (CN), arguing arbitrariness in the decision made by the A quo, as well as non-compliance with the provisions of article 30 in fine of law 23.737, the treatment of the appeal became pertinent through the means established in article 14 of law 48.
From there, the SCJN states that the appellant is right, since Chamber II of the CFCP advocated the violation of the accusatory principle with merely dogmatic arguments that do not agree with the records of the case or with the applicable law.
To this end, the SCJN explained that the obligation to proceed with the confiscation of the assets involved in the crime arises from article 30 of law 23.737 and, therefore, it is not clear how the accused could have been surprised by the decision of the TOCF3SM to order the confiscation of the property, in compliance with the aforementioned legal imperative. Nor does it state what specific defenses he was unable to raise.
To this, the highest court adds, the accused himself would not have formulated any grievance against this measure, for which reason, the assertion that the right of defense was affected is dogmatic. R, since it is the court's opinion that a declaration of nullity for the sake of nullity itself is not appropriate (Rulings: 322:507).
Therefore, the judgment issued by Chamber II of the CFCP does not constitute a reasoned derivation of the law in force in accordance with the proven circumstances of the case, which constitutes a case of arbitrariness that justifies its disqualification as a valid procedural act.
The SCJN adds that the cassation ruling in crisis is particularly disqualifying, since it invalidly rendered inoperative the provisions of article 30 of law 23.737, and entailed the non-compliance of the commitment assumed by the Argentine State when ratifying the United Nations Convention against Trafficking in Narcotic Drugs and Psychotropic Substances (law 24.072) to carry out measures tending to achieve the identification and confiscation of the assets used to commit the crime, as well as to recover the assets.
For the reasons set forth and having heard the Public Prosecutor, the Court RESOLVE: : To allow the complaint, declare the extraordinary appeal admissible and annul the appealed judgment... return the files to the court of origin, so that a new ruling may be issued by whomever is appropriate in accordance with this document. Signed by the Ministers, Doctors, Carlos Fernando ROSENCRANTZ - Elena I. HIGHTON DE NOLASCO - Ricardo Luis LORENZETTI - Horacio ROSATTI.
II.- PRECEDENT CONSUSTANT WITH WHAT WAS DECIDED BY THE SCJN: A ruling issued by Chamber III of the National Criminal Cassation Court, dated November 21, 2013, within the framework of the proceedings entitled "FAS s/ Appeal for Cassation” (case number 836/2013), bears a close similarity to the CSJN ruling “R"and becomes significantly didactic for the evaluation of the figure of confiscation. For this reason, a brief approach to it will be made.
In this case, a defendant was sentenced by the Criminal Court (TOC) No. 19, for the crime of attempted robbery, to six months in prison and costs, a sentence that was replaced by community service. When the relevant sentence was issued, after an abbreviated trial agreement, the confiscation of a motorcycle was omitted, which the convicted person used to try to evade the actions of prevention personnel.
After a considerable period of time, FAS He requested the return of the motorcycle, which had been seized, to which the TOC 19 denied said request.
Given this, FAS filed an appeal, arguing - in what is expressly of interest here and constitutes the parallel with the Ruling "R" of the CSJN, addressed in the preceding point - that an abbreviated trial agreement had been reached, and the seizure of the motorcycle exceeded the scope of the aforementioned agreement, in which no mention was made of said accessory measure.
In his vote, Dr. Eduardo Rafael RIGGI stated -based on the case "CAMACHO, Miguel Ángel s/ Appeal for Cassation", resolved on 07/10/2013- that confiscation does not imply the aggravation of the penalty imposed in the sentence nor does it produce its effects in the manner of its execution, since it is exclusively the power of the court to order the end of the effects seized in the proceedings, as mandated by article 23 of the CP.
The vote states, with a quote from the authors David BAIGUN and Eugenio Raúl ZAFFARONI, that “confiscation is an accessory consequence of the conviction, which consists of the loss in favor of the State of the instruments of the crime (SCELERIS PRODUCT). (2)
He points out, paraphrasing the author Sebastián SOLER, that “the law provides that the sentence imposed implies the loss, so that there is no need for an express provision in the sentence…”. (3)
Therefore, this measure, provided for in article 23 of the Criminal Code, is not appropriate to classify as a penalty.
Broadening the concept, the institution of confiscation does not imply a discretionary power of the Judge, but rather constitutes a legal consequence, accessory to the main penalty.
Therefore, the judge is compelled to decide whether, in the case in question, the conditions for its imposition are proven.
In this line of thought, it has been held that, “it is undeniable that the provisions of the aforementioned article 23 of the Criminal Code are inherent to the conviction. Such circumstance, which should have been known by the appellant here at the time of concluding the abbreviated trial with the Representative of the Public Prosecutor's Office as a necessary consequence of the consensus given, could in no way have been a bargaining chip by the parties. This being so, the assertion that the Court A quo aggravated the sentence requested by the Public Prosecutor's Office by ordering the aforementioned confiscation, disregarding its mandatory nature, is completely unfounded.” (4)
Intensifying the characteristics of the confiscation, it should be noted that it is the result of a conviction.
It is an accessory measure, which is added to the imposition of a main penalty and has a mandatory character.
It is beyond the scope of negotiation between the parties and it is not appropriate to consider that the court aggravated the sentence requested by the Public Prosecutor's Office by imposing said accessory. (5)
Therefore, it must be emphasized that the trial court is not obliged to comply with the prior request of the representative of public vindication in order to impose, where appropriate, the guidelines of article 23 of the CP.
Consequently, Dr. RIGGI concludes his opinion by mentioning that, since the motorcycle in question was used as a means to attempt to escape, it falls within the concept of an instrument used to commit the crime. For this reason, article 23 of the Criminal Code authorizes confiscation, as decided by the TOC 19, applying the accessory arising from said Digest of the background.
Thus, the confiscation in question has not exceeded the jurisdictional limits within which the TOC 19 was entitled and compelled to rule, and therefore the vote postulates the rejection of the Appeal for Cassation filed by the appellant's defense. FAS.
In turn, Dr. Liliana Elena CATUCCI said that, based on the precedent "CAMACHO", she agrees with the vote of Dr. Eduardo Rafael RIGGI. (6)
III.- LEGAL NATURE OF THE CONDITIONING REGULATED IN ARTICLE 23 OF THE CRIMINAL CODE: From a generic perspective, it has been argued that the most traditional form of confiscation has historically been associated with a punitive nature. This is so because confiscation is considered a consequence of punishable conduct in those transgressive actions, where through a criminal process, the perpetrator is sentenced, who is the owner of the property involved in the criminal activity.
In this context, confiscation is classified as a substantial criminal law institute. It is ordered by a criminal judge, who bases it on the prior declaration of punishable liability of the owner of said property.
This form of confiscation is also called security confiscation, assurance confiscation, confiscation of means, confiscation of instrumental effects, etc.
It is based on the objective danger that the instrument or asset represents, to put another legal asset at risk. This, either due to the very nature of the asset, such as the case of weapons, explosives, poison, etc., or because the danger arises from the acts of disposition of the agent, for example, a motorcycle that uses a motorcycle-snatcher to carry out snatching of cell phones and wallets and other illegal acts on public roads and quickly flee to avoid the action of the Security Forces and/or Police. (7)
As a characteristic of this type of confiscation, it should be noted that, in this regard, it is irrelevant whether the origin of the asset is lawful or unlawful, it is sufficient that it has been put to use in the crime, a purpose that is denoted by the use of the asset in the acts consummating the crime or when it has served as an instrument around which the criminal action has been able to unfold.
That is, these are assets that are suitable for carrying out the proposed illegal action. For example, the weapon used in the robbery, the backhoe used in illegal mining, the scanners and printers in the crimes of document forgery, the technological equipment in the illegal intervention of communications, etc.
In relation to the CSJN Resolution addressed in point I –R-, dated 10/03/2020, it becomes clear that "the term instrument, whether it is a singular technical thing or not, always refers to the character of a movable object, while, on the other hand, the meaning means or goods covers all types of things, including real estate, provided that they are suitable for committing the crime, and, of the same, the author or accomplice will be dispossessed. (8)
In line with the preceding story and in close connection with the CSJN ruling "supra" mentioned, it should be noted that although this circumstance of confiscation denotes great utility to effectively combat the structures of organized crime, such as, for example, drug trafficking activities, which use complex business and industrial schemes to invest their spurious profits, it, however, brings about problematic aspects, especially in the case of companies that are used as a means to carry out the crime. In this case, it is necessary to examine the date of the destination and who is responsible for it. For example, if the destination was made by a representative with limited powers to act, or if, on the contrary, the destination was made by someone who had full powers to commit the company to criminal activity. (9)
IV.- CHARACTERISTICS OF CONFISCATION IN THE FIELD OF CUSTOMS REGULATION: Although, currently, the common opinion of the national doctrine and jurisprudence is agreed that, in accordance with the provisions of article 23 of the CP, for the application of the accessory consequence of confiscation, it is a condition that a conviction be issued to the person responsible for an illicit act, in the Customs Code (CA), given the different characteristics that connote said institute in that area, that premise can be ignored.
This is without prejudice to the fact that Article 4 of the Criminal Code establishes that its general provisions shall apply to all crimes provided for by special laws insofar as they do not provide otherwise.
The last phrase, "unless they provide otherwise," for the purposes of the analysis that will be carried out "infra," must be combined with the wording of article 5 of said Digest, which states "The penalties established by this code are imprisonment, prison, fines and disqualification."
Therefore, without prejudice to what will be explained "below", confiscation is not classified as a penalty in the regulations of the Criminal Code.
Therefore, confiscation - at least in the context of the protection arising from the Criminal Code - should not be conceptualized as a penalty. So much so that it has been held by case law that "The penalties provided for in our legal system are those expressly listed in article 5 of the Criminal Code" (National Criminal Cassation Court, Chamber III, 10/12/2012).
In this context, it has been argued that confiscation is an accessory consequence of the conviction. This institution consists of the loss to the State of the instruments of the crime, as well as the goods derived from it. It should also be noted that confiscation is attributed a function that goes beyond mere retribution, given that it is oriented towards the prevention of possible subsequent crimes, as well as the frustration of undue profit for the convicted agent. The assumption of such a classification prevents this measure, set out in article 23 of the Digest of the Background of Repressive Matters, from being considered a penalty in the terms of article 431 bis, paragraph 5 of the CPPN.
The concepts briefly highlighted “supra” have been referenced by the authors Drs. Juan Carlos BONZON RAFART and Mariana A. GUTIERREZ, in a substantial article entitled “SEIZURE IN CUSTOMS AND CRIMINAL EXCHANGE REGIMES”.
However, apart from the denomination accessory penalty It is not the most appropriate way of designating the institute in question and its application occurs as an accessory consequence of an imperative nature, the tenor of the emerging article of the CA calls it a penalty.
Thus, in the cited legal article, its authors state: “In customs matters there are different types of penalties, such as deprivation of liberty, confiscation, fines, disqualification, etc., and that they are ordered according to the jurisdiction granted by the CA itself (article 1026 CA). (10)
It would seem that in the customs regime, confiscation operates as an accessory penalty. In this orientation, the authors referenced here, express that “the possibility of ordering the penalty of confiscation by court ruling is not possible, since the customs crime opens two jurisdictions for the substantiation of the processes and the application of sanctions. The first of these is the judicial one, which applies the penalties of deprivation of liberty and disqualification and the second of these is the customs one, in which the sanctions of confiscation, fines and taxes that tax the merchandise are applied.” And, they add that “the SCJN established that the power of customs to apply the penalties in the crime of smuggling is always “accessory” to the existence of the crime established in court. This is why the jurisdiction to apply custodial sentences is the responsibility of the judicial authority, while the application of the accessory penalties provided for in article 876, section 1, in its subparagraphs a), b), c) and g) is entrusted to the customs authority” (11)
The fact that paragraphs a) and b) of section 1 of article 876 of the CA specifically mention “confiscation” is of significant relevance. In other words, in this ruling of the SCJN, confiscation is assigned the character of an accessory penalty.
Likewise, the Second Chamber of the National Court of Criminal Cassation, in a ruling issued on 06/07/2010, in the case “GALLEGO GABARRON, Antonio s/ Appeal for Cassation”, held that “confiscation constitutes an accessory pecuniary penalty that falls on those objects that belong to those convicted of a criminal act, regardless of their degree of participation, and that were intentionally used to commit or attempt the crime…”
The above highlights that, in the field of customs offences, confiscation is classified as an accessory penalty.
In line with the preceding account, section b) of article 1026 of the CA states - as far as this is concerned - "... before the administrator of the customs office in whose jurisdiction the event occurred, as regards the application of the penalties provided for in article 876, section 1, sections a), b), c) and g), as well as in f), except as regards the Security Forces."
It has also been pointed out: "it was decided that it would be appropriate to postpone the trial of the smuggling case, reserving for the intervening judges the application of the prison sentences and disqualification and for the customs authority, the penalties of confiscation, fines and taxes that tax the merchandise" (12)
Along these lines, it has been stated: “As for the types of penalties, the (customs) code introduces a novelty with respect to the penalty of confiscation” (13). This is the commentary on article 922 of the CA which, as far as we are concerned here, reads: “when it is a matter of confiscation and the owner or those who have legal availability of the merchandise should not be held responsible for the penalty or the merchandise cannot be seized, said penalty will be replaced by a fine equal to its market value.”
Likewise, and among other specific mentions that consider confiscation as a type of penalty: “customs crimes are punished with penalties of different kinds, such as: deprivation of liberty, confiscation, fines, disqualification, etc. In the current system of substantiation of cases, the application of certain penalties (such as deprivation of liberty) was reserved to the judicial authority and the others (such as confiscation and fines) to the customs authority” (14)
It has also been argued that “for customs violations, the Code has established two types of punishment. These are the fine and the confiscation… confiscation, also called forfeiture, is a litigation of the right of property imposed by law, which results in the loss of a movable property without the owner having the right to receive compensation. If the punishment is confiscation and the merchandise cannot be seized, the payment of a fine equivalent to its market value will be required (article 922)” (15)
The above reference clearly denotes that the prominent authorial doctrine of Customs Law, unlike what is specified in the CP, considers confiscation as a type of penalty established in the CA.
Such difference with respect to the classification of said institute is due to the fact that customs matters, being regulated by special legislation, proceed to adapt various institutes of repressive law with a teleological criterion, tending to obtain the maximum potential of the same in its tutelary role of that specific discipline.
In comparative law it has been called comiso administrative that which is carried out by non-judicial entities. This definition includes the customs officer, who refers both to the actual object of the transgressive consummation and to the means or instruments that the offender uses to carry it out.
Thus, in customs matters, goods of criminal origin or destination, used as means or instruments, or those that constitute the material object of a punishable or transgressive conduct, must not always be sought exclusively through criminal channels, since, in certain occasions, the mere existence of these goods poses a certain risk that must be neutralized through intervention measures prior to the deployment of criminal jurisdiction. For this reason, the legal system prevents through administrative measures, granting special powers to non-jurisdictional bodies to intervene in those events in which goods are identified that may threaten public, economic or citizen security.
It happens that risks arise from the commission of some crimes, where administrative confiscation measures configure the mechanism to ward off in advance those threats posed by some assets that are associated with criminal conduct of potential danger, such as occurs with firearms, conduct that threatens the protection of the environment, wildlife, public health, etc.
In order to prevent this type of illegal activity, it is common in various legal systems to grant preventive intervention powers to administrative bodies, which, due to their speciality, technical capacity, resources and professional and logistical infrastructure, appear to be more capable of confiscating this type of property. These purposes and powers constitute their main difference with confiscation carried out within the scope of criminal jurisdiction. This is so, given that property - in the broad sense - of criminal origin or destination, is linked to conduct provided for in special provisions of an administrative nature. Therefore, those non-judicial bodies, but with legally attributed powers, are fully capable of suppressing such antisocial behaviour.
Examples of this type of goods, the illegal trafficking of which is countered by administrative authorities - in this case customs - include: specimens of wild flora and fauna - native or exogenous -, weapons, explosives, products dangerous to public health (banned medicines, harmful pharmaceutical products), food, etc.
For example, customs border control authorities, acting together with specialized wildlife personnel, carry out administrative confiscation in the event of violations of the prohibition of trafficking in such species. In such cases, the confiscation is definitive because, in such a situation that requires urgent action, where the deficiencies of criminal jurisdictional confiscation are evident, in relation to the handling of those species that constitute the material object of the crime and that require urgent measures of protection, recovery and reintegration into their natural environment, a deployment of logistics and specific professional training becomes essential, which is usually beyond the reach of those in charge of carrying out judicial confiscation. (16)
For complementary purposes, the impact of the institute of administrative confiscation in the context of the repression of smuggling in Spain will be addressed.
In this regard, we start from the textualization of the relevant article of the ORGANIC LAW on the matter.
This is the article 5 LO 12/1995, of 12/12/95, whose heading is REPRESSION OF SMUGGLING. Thus, it establishes:
Comiso
- Any penalty imposed for a smuggling offence shall entail the confiscation of the following goods, effects and instruments:
- The goods that constitute the object of the crime.
- The materials, instruments or machinery used in the manufacture, production, transformation or trade of sealed or protected goods.
- the means of transport used to commit the crime, unless they belong to a third party who has not participated in it and the competent judge or court considers that such accessory is disproportionate in light of the value of the means of transport to be confiscated and the value of the goods to be smuggled.
- the profits obtained from crime, whatever transformations they may have undergone.
- Any goods and effects, of whatever nature, that have served as an instrument for the commission of the crime.
- If for any reason it is not possible to confiscate the goods, effects or instruments indicated in the previous section, confiscation will be agreed for an equivalent value of other assets belonging to those criminally responsible for the crime.
- The goods, effects or instruments of contraband will not be confiscated when they are lawfully traded and are owned or have been acquired by a third party in good faith.
- The judge or court must extend the confiscation to the effects, assets, instruments and profits derived from criminal activities committed within the framework of a criminal organization or group. For these purposes, the total assets of each and every person convicted of crimes committed within the criminal organization or group, the value of which is disproportionate to the income legally obtained by each of said persons, shall be deemed to derive from criminal activity.
5- The judge or court may order the confiscation provided for in the previous sections of this article even when no penalty is imposed on a person because he or she is exempt from criminal liability or because such liability has been extinguished, in the latter case, provided that the illicit financial situation is demonstrated.
6.-Assets, effects and instruments definitively confiscated by a court ruling shall be awarded to the State. Assets of legitimate trade shall be sold by the State Tax Administration Agency, with the exception of assets of legitimate trade confiscated for the crime of smuggling of toxic drugs, narcotics and psychotropic substances, or their precursors, as defined in article 2 a) of this law, in which case, the sale or determination or any other destination thereof shall correspond to the Adjudication Coordination Board, in accordance with the provisions of article 3 a) and c) of law 6/2, of May 17, which regulates the Fund of Assets Confiscated for Illicit Drug Trafficking and Other Related Offences, and its implementing regulations.
Having established the above, the brilliant article by the author Patricia FARALDO CABANA, who is a Professor of Criminal Law at the University of Coruña, becomes consubstantial with the subject addressed, in which, under the subtitle “SEIZURE OF CONTRABAND IN CUSTOMS CRIMES”, among other enlightening concepts, she points out that articles 5 to 10 of Organic Law 12/1995, of December 12, on the repression of Smuggling, regulate confiscation in that area, which also has significant relevance in what concerns drug trafficking. (17)
Thus, he explains that until 1982, confiscation in the area of smuggling was an administrative sanction. This was modified by the Law of Regulation 7/1982, of July 13, on REPRESSION OF SMUGGLING, which attributed it the legal nature of an accessory penalty.
Such a conceptualization was inherent to the institution of smuggling as set out in the Penal Code, where smuggling was also classified as an accessory penalty.
In both cases, confiscation was only applicable when the agent had been sentenced to a penalty. In such a case, only property that did not belong to a bona fide third party not responsible for the crime could be confiscated.
The author FARALDO CABANA points out that Law 12/1995 classified confiscation as an accessory penalty, despite the fact that the Penal Code assigned it another legal nature.
Concerning the objects subject to confiscation, the author FARALDO CABANA continues, article 5 of the law referred to in the preceding paragraph makes a very broad enumeration that corresponds to classifying into three groups:
- The material object of the crime, that is, the goods that constitute its object;
- The instruments of the crime, that is, the materials, instruments or machinery used in the manufacture, production, transformation or trade of prohibited or prohibited goods and the means of transport used to carry out the crime, with the exceptions specified in points b) and c) provided for in item 1.
- Profits obtained from crime with the characteristics emerging from point d) inserted in the aforementioned item 1.
The author mentions that, unlike what is provided for in the figure of confiscation set out in article 127 of the Penal Code, the material object of the crime is specifically indicated as the object of confiscation, a mention that is also made in relation to drug trafficking.
Subsequently, Dr. FARALDO CABANA addresses the topic of instruments of crime, highlighting that a proportionality clause has been imposed on the topic. This refers to the instruments of crime, specifically, to those that consist of means of transport. Said proportionality will be established taking into account two magnitudes: the value of the means of transport and the amount of what is transported. Given that the Penal Code is applied in a supplementary manner, the proportionality clause arising from article 128 of the latter also applies to the effects of instruments of crime.
In order for item 3 of article 5 to be applicable, it is necessary that the goods, effects and instruments of smuggling be lawfully traded and have been acquired by a third party in good faith. To this end, the good faith of the company that has incurred in culpa in vigilando is ruled out. The author points out that the Penal Code does not distinguish between types of lawful trade and prohibited types. This implies a significant difference that only disappears when the issue is drug smuggling. The latter is because it will always involve prohibited types.
As regards the destination of the goods, effects and instruments definitively confiscated by means of a sentence, these will be awarded to the State. If they are objects related to drug trafficking, they will be allocated to the fund regulated by Law 17/2009 of 29 May and by Royal Decree of 6 June, which approves the Regulations of the Fund from assets confiscated for drug trafficking and other related crimes.
Article 6 authorizes the judge or court to proceed with the intervention of the assets and instruments indicated in Article 5, subject to what is decided in the resolution that ends the process, which enables confiscation as a precautionary measure during the course of the process.
As in the case of drug trafficking, the authority may also agree that, while the process is being processed, the goods, effects and instruments may be used provisionally by the forces or services in charge of pursuing smuggling, although, unlike what is required for the crime of drug trafficking, the judge or court is not required to adopt guarantees for their preservation.
The sale of seized goods, effects and instruments is also authorized, if this is their final destination, without waiting for the ruling or finality of the judgment, in the following circumstances: a) when their owner expressly abandons them, and, b) when the judicial authority considers that their conservation may be dangerous for public health or safety or give rise to a significant decrease in their value. Merchandise, items or effects that, without suffering material deterioration, depreciate over time shall be understood to be included in this section.
Likewise, the use of the seized goods, effects and instruments that are not transferable will be assigned to the forces or services in charge of pursuing smuggling in accordance with the provisions of the specific legislation applicable to this matter.
Finally, “When the seized goods are included in public monopolies, the judicial authority at whose disposal they have been placed will proceed in the manner indicated by the provisions regulating said monopolies”, and may “authorize the performance of acts of disposal by the companies managing the monopolies with respect to the goods or items that have been seized, subject to the relevant compensation, if applicable, according to the content of the final judgment.”
Likewise, Dr. FARALDO CABANA asks what happens when we are faced with drug smuggling? She points out that, in this case, there is an apparent concurrence of penal norms whose resolution points to the application of the regulations contained in Organic Law 12/1995, on the Repression of Smuggling, as a special law. In this case, the specific confiscation regulated in said law would be applied, with Article 374 of the Penal Code being supplementary and, in turn, its supplementary articles 127 and 128, which address the general regulation of confiscation.
Or, by applying the legal provision that, in the specific case, assigns the highest penalty to the act, and, therefore, also the specific confiscation of this criminal figure, that is, using the rule of alternativity to resolve the contest. (18)
Notes
- Article 23 of the CP: In all cases where a conviction is handed down for crimes provided for in this code or in special penal laws, the conviction shall decide on the confiscation of the things that have been used to commit the act and of the things or profits that are the product or benefit of the crime, in favor of the National State, a province or the municipalities, except for the rights of restitution or compensation of the injured party or third parties.
If the things are dangerous to the public safety, confiscation may be ordered, even if it affects third parties, except for the right of the latter, if they were acting in good faith, to be compensated.
When the author or the participants have acted as agents of someone or as organs, members or administrators of a legal entity, and the product or profit of the crime has benefited the Principal or the legal entity, confiscation will occur against them.
When the proceeds or profits of the crime have benefited a third party free of charge, confiscation will occur against the latter.
If the confiscated property has a value for use or culture for an official establishment or public good, the respective national, provincial or municipal authority may order its delivery to these entities. If this is not the case and it has commercial value, the authority shall order its alienation or, if it has no legitimate value, it shall be destroyed.
In the event of a conviction for any of the crimes provided for in Articles 125, 125 bis, 127, 140, 142 bis, 145 bis, 145 ter and 170 of this Code, the property to be confiscated shall include any movable or immovable property in which the victim was deprived of his or her liberty or exploited. The property confiscated for such crimes in accordance with the terms of this article and the proceeds of the fines imposed shall be allocated to victim assistance programmes.
In the case of crimes prescribed in articles 213 ter and quater and in title XIII of book two of this Code, they will be definitively confiscated, without the need for a criminal conviction, when the illegality of their origin or the material fact to which they were linked has been proven, and the accused cannot be prosecuted due to death, flight, prescription or any other reason for suspension or extinction of criminal action or when the accused has recognized the illegal origin or use of the assets.
Any claim or dispute regarding the origin, nature or ownership of the goods shall be made through an administrative or civil action for restitution. When the goods have been auctioned, only their monetary value may be claimed.
From the beginning of the judicial proceedings, the judge may extend the precautionary measures sufficient to ensure the confiscation of the property(ies), business assets, deposits, transport, computer, technical and communication elements, and any other property or patrimonial right which, because they are instruments or effects related to the crime(s) being investigated, may be subject to confiscation.
The same scope may be applied to precautionary measures intended to stop the commission of the crime or its effects, or to prevent its profit from being consolidated or to hinder the impunity of its participants.
Article 30 IN FINE of Law 23.737:In addition, the assets and instruments used to commit the crime will be confiscated, unless they belong to a person not involved in the crime and the circumstances of the case or objective elements prove that he or she could not have known of such illicit use. The economic benefit obtained from the crime will also be seized.
- BAIGUN, David – ZAFFARONIEugenio Raúl, “CRIMINAL CODE AND SUPPLEMENTARY RULES. Doctrinal and Jurisprudential Analysis”, Buenos Aires, HAMMURABI, 1997, Volume I, page 309;
- SOLER, Sebastián“ARGENTINE CRIMINAL LAW”, Typographic Editorial Argentina, 1992, Volume 2, page 465;
- RIGGI, Eduardo Rafael, vote in case number 8954, entitled “PAPADOPULUS, Marcelo Damián”, dated 19/05/08;
- CNCP, Chamber II, case 4757, “GOMEZ, Carlos Alberto s/ appeal for cassation”, 08/03/04;
- CNCP, Chamber III, case 1371/2013, “CAMACHO, Marcelo Ángel s/ appeal for cassation”, 07/10/2013;
- SANTANDER APRIL, Gilmar Giovanni, “THE EMANCIPATION OF FORFEITURE FROM THE CRIMINAL PROCEEDINGS: ITS EVOLUTION TOWARDS FORFEITURE AND OTHER FORMS OF EXPANDED FORFEITURE”, Chapter included in the book “Combating money laundering from the judicial system”, by the Department against Transnational Organized Crime, Secretariat for Multidimensional Security, of the Organization of American States (2017), page 85 and SGTS. Website www.cicad.oas.org>lavado_activosyesp>documents;
- MUNOZ CUETO, Javier“SEIZURE: NEW ASPECTS INTRODUCED IN ITS REGULATION BY LAW 15/2003”, Navarro, Editorial Aranzadi, 2004;
- SANTANDER APRIL, Gilmar Giovanni, legal work cited;
- BONZON RAFART, Juan Carlos and GUTIERREZ, Mariana A. “SEIZURE IN CUSTOMS AND CRIMINAL EXCHANGE REGIMES”, published in “Practical Guide to Foreign Trade and Advances of the Customs Tariff Nomenclature”, number 374 of 31/01/2019, posted by “Despachantes Argentinos” published online on 27/2/2019, Jurisprudence Section, website www.despachantesargentinos.com>detsllr_noticia;
- SCJN, “DE LA ROSA VALLEJOS, Ramón s/ Article 197”, Rulings: 305:246;
