Case No. 44.864, Folio 54, Order No. 19.189) J.6, S.12. CHAMBER «A».
// the City of Buenos Aires, capital of the Argentine Republic, on the 17th day of May of two thousand and one, the Judges of the Chamber "A" of the Honorable National Chamber of Appeals in Economic Criminal Matters of the Capital, Drs. Nicanor MP Repetto, Edmundo S. Hendler and Marcos A. Grabivker, met in Agreement to resolve the appeals filed against the judgment of pages 896/908 and back. issued in Case No. 44.864, F 54, Order No. 19.189 of the registry of this Court, entitled «LARREGINA, HORACIO; RODRIGUEZ, JG S/ CONTRABAND», established the following question to be resolved:
Is the appealed judgment in accordance with the law?
To the first question raised, the Court Judge, Dr. Nicanor MP Repetto said:
1.- The present proceedings come to the attention of the Court by virtue of the appeals filed on pages 909 and 912, respectively, by the Public Prosecutor of First Instance and by the defense of Horacio Eulogio Larregina, against the judgment on pages 896/908 and vta.
The representative of the Public Prosecutor's Office is aggrieved in relation to the amount of the prison sentences, special disqualification and absolute disqualification imposed on Larregina, and the acquittal issued in favor of Vilma Oiga Martínez -points 1 and 11 of the decision in question-.
For its part, Horacio Larregina's defense is aggrieved by the sentence handed down to his client.
11.- On pages 937/939 and back, the Attorney General of the Court, in replying to the request made to him (art. 519 of the Code of Criminal Procedure), requests that the appealed judgment be revoked and that Horacio Eulogio Larregina and Vilma Oiga Martínez be sentenced, respectively, in accordance with the facts charged and the penalties requested in the fiscal accusation of pages 797/802 and back.
On pages 930/936, the memorandum of improvement of the grounds of Larregina's defense was incorporated into the file, where he requests that the conviction against his ward be revoked and, based on the grounds set forth therein, that he be absolved of guilt and charges.
III.- The fact being analyzed is the introduction into the country of the Mercedes Benz automobile, sedan, model 190 E, year 1990, license plate B. 2.019.426, which was brought into the country under a franchise for the disabled in the terms of Law 19.279 (modified by Law 22.499), the holder of which being Mr. José Gabriel Rodríguez.
The crime charged is established if a person other than the disabled beneficiary of the franchise - in this case, Horacio Larregina - is the one who truly buys, pays for, imports, uses and maintains the vehicle in question and, at the same time, it is simulated that the owner of said unit is the legally disabled person authorized to carry out the favored import. This simulation - as to who is the real owner of the automobile - appears as the deceitful mechanism by means of which the true owner obtains a more favorable customs treatment for the import operation. If such deception did not occur, the customs service would not grant, with respect to that destination of entry, the benefits implied by the regime of law 19.279 and its modifications.
IV.- As regards the responsibility and degree of participation of Horacio Eulogio Larregina in the facts under investigation, I share the considerations developed by the Public Prosecutor in his accusation, therefore I understand that the evidence in the file is decisive as to the quality of the author of the aforementioned accused (art. 45 of the Penal Code) of the crime provided for in art. 864, inc. b), of the Customs Code, qualified by the provisions of art. 10, inc. a), of the same legal body.
With regard to the invocation of the principle of retroactivity of the most lenient criminal law, following the criteria of the jurisprudence of the Supreme Court of Justice of the Nation (ruling of 01/12/88 "Cerámica San Lorenzo"), this Court has already expressed in numerous precedents that, when the leniency of the subsequent law is linked to some accidental or circumstantial element such as those that usually integrate the criminal types of economic order, the application of the aforementioned principle of retroactivity must be excluded. In this sense, the determinations adopted by the Executive Branch, or by the departments that depend on it, only modify the provisions that complement the blank criminal law - in this case, the Customs Code.
On the other hand, it should be noted that the issuance of decree 2677/91 has in no way modified the criminal nature of facts such as those investigated in these proceedings. Thus, the modification of the regulations that condition the applicability of the cited Code has not altered the negative assessment of facts of this nature.
Recently, in a case very similar to the one under consideration here (judgment of 8/11/00 “Vigil, Constancio et al. s/contraband”), the Court said that “…the repeal of the import ban, not having meant a liberation from customs controls, has left the core of the rule that represses smuggling subsisting. The new regulation implies, of course, a greater framework of freedom, but said framework is linked to the expansion of the possibilities of importing foreign automobiles, and not to the unnecessary fiscal and customs controls compromised by the rule of art. 1, inc. b, Customs Code. The protective purpose of this precept has not been modified in any way by the new regulation…”. Thus, at present, importation continues to be carried out under customs supervision and controls, so that "... the punishability of motor vehicle smuggling by fraudulently using a franchise for the disabled has not been altered, and the regime of decree 864/2677 cannot lead to a substantial change in the social assessment of the conduct under judgment..."
For the reasons stated above, I consider that the arguments put forward by the defence fail to shake the degree of certainty provided by the abundant evidence supporting the criminal charge.
As regards the quantum of the sentences applied to Larregina, taking into account the seriousness of the act that constitutes the subject matter of the case, the participation and guilt of the accused, and the assessment guidelines contained in arts. 40 and 41 of the Criminal Code, I consider that the same should be raised to the amounts requested in the prosecution's indictment (on pages 797/802). The suspension of the effective fulfillment of the prison sentence satisfies the legal requirements of article 26 of the aforementioned legal body.
V.- In relation to the accused Vilma Oiga Martínez, I understand that the acquittal issued in her regard by the Judge a quo is not in accordance with the law and, consequently, must be revoked. This is so, since the notarial authorization of a legal act by which the principal grants absolute and irrevocable powers to the agent with respect to the vehicle and "without obligation to render accounts", proves the complicity of the authorizing party in the illicit business that this act tended to facilitate, since it cannot escape the knowledge of said authorizing party that a power of such scope converts the agent, plain and simple, into the virtual owner of the unit, granting him a disposition over the thing identical to that which its real owner would have.
Precisely, what this act made possible was an aspect specifically prohibited by law: the use and possession of the car by Larregina (a person other than the disabled person who benefited from the franchise), thus allowing him to ensure the safekeeping of the money invested in the acquisition of the property, until the legal limitation period for the effective transfer of ownership had elapsed.
For the latter reason, the authorized act has all the appearance of constituting the counter-document of a simulation of persons, an aspect that cannot go unnoticed by the understanding of a public notary. Even more so if the professional is experienced in mandates concerning imported automobiles because her client is a dealership company selling automobiles of a well-known foreign brand.
On the other hand, an irrevocable power of attorney, to be valid as such, must be based on a legitimate interest of the contractor, something that a notary, as a professional with legal training, cannot ignore (conf. Reg. No. 718/94 of Chamber "A").
As regards the insertion of a clause that conditions the exercise of the mandate to the certification of availability, as already held in due course (see pages 752 and back), it is far from disproving the illegality of the simulation. Rather, it proves the knowledge that the condition was not fulfilled at the time of granting the act and explains why a mandate was granted and not a contract of sale.
It is therefore clear that the conduct of the notary Martínez deviates considerably from the generic and usual conduct of "granting power" and far exceeds the limits of risk permitted in the exercise of the notarial function. Consequently, this conduct is no longer socially appropriate and legally tolerated.
As regards the degree of Martínez's participation, I understand that his activity appears to be relevant and indispensable for the perpetration of the crime under investigation. In effect, to determine the necessity of the contribution made by a primary accomplice, the formula of hypothetical mental suppression must be used; thus, if the contribution had been mentally suppressed and the act could not have been committed as it was executed, said contribution will be necessary. In other words: the possibility that the act could have been committed under other circumstances and modalities does not remove the necessary character of the contribution.
As maintained in doctrine, "the need for the contribution must be assessed ex-ante and in the concrete and never ex-post and in the abstract" (Zaffaroni, Treatise on Criminal Law, volume IV, p. 398, 1982), otherwise no contribution could be considered necessary since, in reality, there is no single and exclusive way of committing the crime.
The relevance of Martínez's contribution in the preparatory stage of the iter crimins must be measured in terms of whether it has served to strengthen the criminal will of the perpetrator, creating a feeling of security and generating a greater accumulation of expectations in relation to the success of his plan. Here lies the primary participatory nature of Martínez's actions and the basis for his punishability.
As regards the sentences to be imposed on the accused, notwithstanding the change in qualification indicated as to her degree of participation, taking into account the requirement of the accusatory principle, I understand that they must be adjusted to what was requested by the Public Prosecutor's Office, in order of the seriousness of the act and the measuring guidelines of arts. 40 and 41 of the Penal Code. The suspension of the effective fulfillment of the prison sentence satisfies the legal requirements of article 26 of the substantive code.
It is also noted that Martínez has a final conviction for a different fact and contemporary with the one tried here (see record on page 882), so it will be up to the Judge in charge to proceed in accordance with the rules on accumulation of sentences provided in articles 55, 58 and related articles of the Penal Code.
VI.- In short, my answer is that it is appropriate to: 1) CONFIRM the appealed judgment insofar as it convicts Horacio Eulogio Larregina, raising the quantum of the penalties imposed to the amounts requested in the fiscal accusation on pages 797/802; 11) REVOKE the appealed judgment insofar as it acquits Vilma OIga Martínez, convicting the accused as a primary accomplice -art. 45 of the Penal Code- of the crime provided for in art. 864, paragraph b), qualified by art. 865, paragraph a), of the Customs Code to the penalties requested in the aforementioned accusatory document; informing the Judge a quo that he must proceed to the unification of the penalties, in accordance with the provisions of arts. 55, 58 and related articles of the Penal Code; 111) With costs.
That is my vote.-
In response to the same question, the Chamber Judge, Dr. Edmundo S. Hendler, said:
I understand that the appealed judgment is in accordance with the law. The grievances expressed by Larregina's defense attorney do not affect its grounds and have been correctly rejected in the vote of Mr. Judge of the Chamber, Dr. Repetto. It is proven that the imported vehicle was in the possession of the accused and there is more than enough evidence that the status of importer and owner of the property by Rodríguez was a mere simulation. The deception of the customs service through which the importation was authorized under privileged conditions was for his exclusive benefit and there can be no doubt that Larregina had full control of the event and is the author of the crime.
I also understand that the judgment is in accordance with the law insofar as it acquits the co-accused Vilma Martínez, and the grievances of the Court Prosecutor are not sufficient to affect her either. As pointed out by the Judge a quo, the evidence that led at the time to adopt a precautionary measure based on the suspicion that she was a participant in the crime, although sufficient for that purpose, is not sufficient to reach a final conclusion of conviction. To do so, it was necessary to fully prove the suspected participation and the accusing party did not offer any evidence of its accusations at the time of the opening of the trial. Under these conditions, the case must be resolved in favor of the accused in accordance with the provisions of the applicable procedural law, article 468 of the Code of Criminal Procedure.
The involvement in the event attributed to Martínez is exclusively related to the mandate to dispose of the vehicle, granted by Rodríguez to Larregina, which she authorized as a public notary: It is true, and the Public Prosecutor's Office is right in this, that this mandate, given irrevocably and without obligation to render accounts, served to protect Larregina's rights and was, undoubtedly, the counter-document of the simulation that contributed to the deception being carried out. But that does not necessarily mean that Martínez has responsibility as a participant. She was carrying out this act proper to her profession and there is no ethical or regulatory transgression that could be attributed to her for that reason alone.
It is also true that she must have had clear knowledge that the act she notarized concealed a simulation. Giving power to dispose of an asset irrevocably while declining to ask for an accountability is equivalent to parting with the asset in favor of the agent. Added to this is the fact that Martínez witnessed the signing of a promise of sale between the principal and the agent, the terms of which are not known but which can be presumed to correspond to the transfer of the vehicle in question. It must also be understood as proven that she knew that the vehicle was going to be imported later and with the exemptions that favor disabled people. This is what is stated in the deed she notarized. What cannot be understood as proven, however, is that she gave professional advice about the way in which the deception could be consummated. The suspicion that arose from the fact that she had a company in the automotive sector as a regular client was not in any way corroborated. On the contrary, through the statement of the representative of that company, obtained at the request of the prosecutor, a contrary indication was obtained: Marcelo Celestino Loubes declared before the judge in charge of the investigation on page 10 that it was strictly circumstantial that the notary Martínez had been chosen. According to him, her name was taken from a list and because of the proximity of his office.
In these circumstances, it cannot be understood that there was collusion between the accused and, therefore, the knowledge of the simulation, which Martínez undoubtedly had, does not imply the necessary knowledge of the illegality of the act. It could well have been a matter of providing a guarantee for the person who lent the money intended for the purchase of the goods. That in reality Larregina did not lend money for another person to buy but that he bought for himself is an alternative that the notary could perfectly foresee, but that does not mean that she can be charged with participation in the crime that he committed. She can only be charged with negligent behaviour, which could only have been charged as a negligent crime committed by her independently of that committed by Larregina. But the only crime of this kind provided for in cases of smuggling is that of art. 1 of the Customs Code and that crime involves the presentation to the customs service of a document necessary for the import procedure, which is not the case with the power of attorney authorized by Martínez. Not only because this power of attorney was not presented to the customs service, but because the document itself revealed the simulation and therefore was not valid for presenting it to the authority that was being deceived.
On the other hand, the accusation that attributes eventual intent to Martínez not only lacked proof in the evidentiary stage. It is not even consistent with the attitude of the same accusing Public Prosecutor who, at the time, absolved from all responsibility another professional who intervened in the event, the customs agent Osvaldo Paggi, whom the intervening prosecutor at that time, caused to be totally dismissed (on page 499).
The criteria of the authors of the doctrine that the judge a quo cites in his judgment leads, in fact, to discard the objective imputation when the participation that is attributed only supposes having played a social role in accordance with the rules of the "lex artis" even if doing so would have generated a risk that must be understood as permitted. The cases that one of these authors points out are illustrative of the limit that exists between what is lawful and what supposes complicity in the crime. It is not the same, for example, that someone waits in front of the crime scene with the engine running or simply provides a taxi service or organizes an escape route or simply provides a map of the city. (Ginther Jakobs Objective imputation in Criminal Law, translation by M. Cancio Meliá, Buenos Aires, 10, Ad-Hoc. edition, payment 10). Still other authors who do not agree with the doctrinal criteria in question agree on the exoneration of the participant in this type of situations. Zaffaroni, Alagia and Slokar call it "Requirement of non-trivial contribution of the participant" and include it as a matter related to what they treat as "comprehensive typicality", that is, as cases in which the typicality of the act would be excluded (Eugenio Raúl Zaffaroni, Alejandro Alagia and Alejandro Slokar Derecho Penal-Parte general, Buenos Aires, ed. Ediar, 1996, p. 88).
My conclusion, then, is that the judgment is in accordance with the law and should be affirmed. Without costs.
In response to the same question, the Court of Appeals Judge Dr. Marcos A. Grabivker said:
For similar reasons, I agree with Dr. Repetto's conclusions. Thus the agreement was terminated.
Therefore, and in light of the result of the majority vote, IT IS RESOLVED:
1) CONFIRM the appealed sentence insofar as it convicts Horacio Eulogio Larregina as the author of the crime of qualified smuggling, INCREASING the amount of the penalties imposed, which are set at: a) 2 (TWO) YEARS and 6 (SIX) MONTHS OF SUSPENDED PRISON -art. 26 of the Penal Code-; b) LOSS OF CONCESSIONS, SPECIAL REGIMES, PRIVILEGES AND PREROGATIVES that he enjoyed; c) SPECIAL DISQUALIFICATION FOR 1 (ONE) YEAR from engaging in commerce; d) PERPETUAL SPECIAL DISQUALIFICATION from serving as a member of the security forces; e) ABSOLUTE DISQUALIFICATION for twice the time of the prison sentence from serving as a public official or employee (arts. 864, inc. b), 865, inc. a) and 876 of the Customs Code, law 22.415).
11) REVOKE the appealed judgment insofar as it acquits Vilma OIga Martínez, who is SENTENCED as a primary accomplice -art. 45 of the Penal Code- of the crime of qualified smuggling provided for in arts. 864, inc. b), and 865, inc. a), of the Customs Code, to the penalties of: a) 1 (ONE) YEAR and 4 (FOUR) MONTHS OF SUSPENDED PRISON -art. 26 of the Penal Code-; b) LOSS OF THE CONCESSIONS, SPECIAL REGIMES, PRIVILEGES AND PREROGATIVES that she enjoyed; c) SPECIAL DISQUALIFICATION OF 6 (SIX) MONTHS for the exercise of commerce; d) PERPETUAL SPECIAL DISQUALIFICATION to serve as a member of the security forces; e) ABSOLUTE DISQUALIFICATION for twice the duration of the prison sentence to serve as a public official or employee (art. 876 of the Customs Code).
III) TO INFORM the Judge a quo that he must proceed to unify the sentences imposed on Vilma OIga Martínez, in accordance with the provisions of arts. 55, 58 and related articles of the Penal Code.
IV) With costs in both instances to be borne by the convicted parties. Register, notify and return.
