As a result of the delicate situation that the country is experiencing in terms of foreign exchange, the State has intensified its actions aimed at obtaining the entry and settlement of foreign currency. The cocktail of measures dictated for these purposes ranges from incentives, such as the “agricultural dollar”; through to control: preventive suspensions in the registry of foreign exchange operators, in the registry of importers and exporters, suspension of the CUIT, etc.
The intensification of these measures was announced by Minister Sergio Massa at the press conference on 05/04/23, at the presentation of the Export Increase Program. There, without mincing words, the minister said: “Sometimes, due to Argentine legislation, which has this principle of the most lenient criminal law, which makes it possible to evade its obligations within the framework of the criminal exchange law, we find that criminal legislation is not enough to sanction those who speculate instead of fulfilling their obligations under the law” (Sic).
The application of the constitutional principle referred to by the minister in exchange matters was ratified in 2006 by the Supreme Court of Justice of the Nation. In the precedent known as “Cristalux”, said Court held that in the case of blank penal laws, such as the Criminal Exchange Regime (RPC), the retroactive principle of the most lenient penal law is applicable. Precisely on that occasion, it was a case of a summary for lack of entry and liquidation in the exchange market of the equivalent in foreign currency for transactions documented between the years 1982 and 1991, an obligation left without effect with the subsequent liberalization of the exchange market that took place with Decree 530/91.
The Court's current adherence to this principle is evident in the case "Vidal, Matías Fernando Cristóbal and others s/ violation of law 24.769", dated 28/10/21, where it also ruled favorably regarding the retroactive application of the amounts provided for by the Tax Penal Regime.
As “criminal legislation is not enough”, a series of precautionary measures have proliferated within the terms of article 17 of the RPC, which enables the Central Bank of the Argentine Republic (BCRA) in cases of alleged non-compliance with foreign exchange regulations, among other things, to:
1) not agreeing to change authorization;
2) do not allow importing;
3) not allowing export;
4) suspend the registration of foreign exchange operators.
Sometimes, these measures are dictated in cases where the individual responds to the pre-requisites and requirements made by the BCRA, trying out substantive defenses, such as: the existence of debts in collection management, differences in collection due to commercial issues, due to differences in the quality of merchandise, compensation of commercial obligations, etc. That is, there is a substantive defense that must be analyzed in depth by the natural judge of the case, with all the guarantees inherent to the criminal process.
Furthermore, it is important to note that the precautionary suspension is ordered prior to the commencement of the preliminary investigation and the hearing with the formal accusation. And said accusation usually takes place several months - or even years - after the measure is issued. On the other hand, it is public knowledge that a case of this type usually lasts no less than 5 years. And, as if that were not enough, it generally involves alleged breaches of operations that took place several years ago.
Therefore, these precautionary measures, which are truly effective when trying to force a certain result, in order to be lawful must necessarily be implemented observing certain parameters on which it is appropriate to focus.
As a guiding criterion to be observed in these cases, the Supreme Court has held that in order to dictate precautionary measures such as those indicated, it must be proven that there is danger in the delay to justify their implementation, which - in addition - must result objectively from the examination of the different effects that its application could cause (Rulings: 344:3442). That is to say, it is not possible, through a dogmatic and apparent justification, to justify the suspension in the registry of importers.
Likewise, the Supreme Court has stated that precautionary measures must be issued by applying a restrictive criterion (in re “Construtora Norberto Odebrecht SA” 15/10/2015), and are therefore measures of last consideration within the framework of a process. Especially when the measure may imply a sanction or the anticipation of one within the framework of a criminal case and with significant financial consequences for the foreign trade operator.
On the other hand, in the cases “Gador SA” (13/05/2021) and “Basf Argentina SA” (22/04/2021), the Court also said that the issuance of precautionary measures “… requires a careful assessment of the reality involved, in order to fully establish whether the consequences that may be produced by the events that are intended to be avoided may reduce the effectiveness of the subsequent recognition of the right at stake by the final judgment.”
Undoubtedly, this guideline pointed out by the Court is difficult to find when one wants to judge the lack of entry of foreign currency and impose precautionary measures. It is impossible to elucidate with the suspension in the registry what is intended to avoid with respect to the past fact that is being investigated. It is here where it is stated that, strictly speaking, this type of measures hide an advance sanction that pursues "something more" than the sanction itself that can be imposed at the end of the criminal exchange investigation.
However, the Economic Criminal Court itself has maintained that there must be “…circumstances that justify the maintenance of precautionary measures…” (in re
CNPE, Room B, “Envases Serafín SA – Vinaccioa, Pedro José – Pérez, Hugo Daniel s/Medidas Precautorias” 29/12/2014). The issuance of a precautionary measure prior to the start of a summary whose total duration will not be less than 5 years, will undoubtedly be more damaging than the sanction that could eventually be imposed if the operator is found guilty. And the situation seems more absurd and pernicious if we consider that justice may finally rule in favor of the accused, who for years suffered the impossibility of operating.
We must not forget that these measures are not imposed by the judiciary, but are dictated by the BCRA at the investigation stage. And this was precisely the point made in the case “Pastoril Santiagueña SA s/ Régimen Penal Cambiorio” (Pastoril Santiagueña SA v. Régimen Penal Cambiorio) dated 25/4/08, when it was held that a measure of this type “…imposed by a government department, without judicial intervention, in an evidently controversial matter…is in itself arbitrary, completely regardless of who might be right in the controversy…”.
All of this, in addition to demonstrating the non-existence of danger in the delay, prevents and delays any possibility of effective exercise of the individual's right to defense, also causing immeasurable financial damage.
For this reason, Chamber A of the CNPE determined: “It is appropriate to confirm the resolution that did not grant the request for precautionary measures in view of the existence of actions aimed at imposing pecuniary sanctions for violation of the Foreign Exchange Penal Regime, since there is no danger in the delay that justifies the adoption of such measures, since these are violations that would have been incurred more than five years ago and the pecuniary sanctions that are sought to be guaranteed can only be imposed after a summary procedure that has not been carried out up to now and which is the responsibility of the Central Bank itself” (“Bárbara SRL, – Centurión, Estela Carmen s/Fergumen Penal cambio, medidas precautorias” 05/10/12).
This same criterion was replicated by the same Court, when it held that “The criminal procedural law authorizes the issuance of precautionary measures when there is danger in the delay (Art. 518 of the CPP), a circumstance that does not appear to have existed, given that, on the contrary, more than five years have passed since the Central Bank became aware of the alleged exchange infraction, which, in itself, indicates that there was no urgency” (CNPE, Court A, “Contis SRL – Fadiño, Alicia Elba s/Régimen Penal Cambiorio”, 15/4/11).
As stated above, the damage caused by the suspension of the importer and exporter registry can be lethal, which in most cases reveals how arbitrary and excessive such a measure is. Thus, the jurisprudence determined that “these measures must be limited in order to avoid unnecessary burdens (conf. Art. 204 of the CPCC) (Chamber A of the CNPE “Meb Corporation Argentina SA –Montenegro, Edith Lydia s/ Foreign Exchange Penal Regime, Precautionary Measures”, 05/10/12).
The damage caused by measures of this nature is so evident that case law uniformly maintains that “…the precautionary measures in question would imply a limitation on the exercise of the right to property without the existence of a condemnatory sentence capable of being executed, which is why it is not possible to admit the prolongation in time of that state of affairs when the state agency, at the request of which the precautionary measures were issued and on which it depends in the first instance that the process advances towards the issuance of a definitive sentence by the competent judge, incurred delays such as those mentioned, especially when it is noted that in the documents of this incident the representation of the BCRA did not provide any reason to explain those delays (CNPE, Sala B, “Losano, Matías Fernando s/Medidas Precautorias” 16/04/2014).
Accordingly, it is easy to see from the case law reviewed that the imposition of a precautionary measure of this magnitude must be analysed in a restrictive manner, taking into account the right to defence and property rights that are put at risk in certain circumstances. It would seem that it is not in accordance with the law to preventatively prohibit the possibility of importing and exporting in the context of a case where a private individual is entitled to present a substantive defence for an alleged breach that would have taken place some time ago and in the context of a case that will last many years.
It is there, without a doubt, where Justice, faced with the excesses that the BCRA may incur - guided by the urgency of the current situation regarding foreign currency - has the obligation to act firmly and independently to reestablish the natural balance that must exist in the relationship between individuals and the State.
Lawyer, graduated from the Faculty of Legal Sciences of the University of Salvador (2003). He completed a postgraduate degree in Customs and Integration Law at the University of Buenos Aires (2005), and completed the Latin American Laws and Institutions, Summer Law Program at Southwestern University (2008). He has extensive experience as a professional in the area of customs, exchange and foreign trade law. He is a member of the Argentine Institute of Customs Studies (IAEA), the Argentine Association of Fiscal Studies (AAEF) and the Public College of Lawyers of the Federal Capital of Argentina. He has also spoken at various academic forums both locally and internationally, and published numerous articles in various media (Debates de Derecho Tributario y Financiero Magazine of the UBA, Mercojuris, Trade News, Abogados, El Dial, La Nación newspaper, Errepar, LexisNexis and La Ley).
