In Buenos Aires, on the 20th day of August 2003, the members of Chamber "E", Drs. Gustavo A. Krause Murguiondo, Catalina García Vizcaíno and D. Paula Winkler, met, with the first-named Member presiding, in order to render judgment in the case entitled: "MINASSIAN JUAN MIGUEL, v. General Directorate of Customs, s/appeal, file no. 17.895-A" (Accumulated case no. 17.896).-
Dr. Krause Murguiondo said:
I.- That at fs. 25/35 the customs agent Mr. Juan Miguel Minassian, in his own right, files an appeal against the Ruling Resolution No. 4703/02 of 21-10-02 issued in case No. 604.453/96 by the 2nd Head of the Department. Customs Legal Procedures, approved by Res. SDG OAM No. 831/02. He states that despite expressly agreeing to the acquittal ordered in his favour by said resolution, he partially appeals it insofar as it resolves to condemn the importing firm (Bovan SA) for alleged commission of the infringement provided for and punished by art. 954 inc. b) and art. 991 of the Code. Customs. First, it requests that this case be processed together with the one initiated in respect of Res. Judgment No. 4346/02 of 30-09-02, issued in case No. 602.594/96 by the same customs body, considering that, in its opinion, there is absolute identity between both cases, both with respect to the merchandise involved and with respect to the import clearance by which it was documented (No. 18.070-2/96), the alleged infraction (failure to comply with the provisions of ANMAT Provision No. 2145/95 and ANA Resol No. 2016/93) and the customs service official involved in both cases. He refers to his subjective right to appeal the aforementioned resolution despite being acquitted, arguing that the conviction of the importer for an inaccurate declaration could lead to possible civil liability issues. It bases its position on various articles of a constitutional nature as well as on numerous treaties to which said hierarchy is recognized. The plaintiff is aggrieved in that he believes that the typical action consisting of the inaccuracy of the declaration made by the importing firm has not occurred in the proceedings. That the failure to present the import authorization issued by the national health authority would not be sufficient, in his opinion, to establish the infringement charged. In this regard, it points out the interpretative disorder that customs would incur by jumping from the necessary antecedent (inaccuracy of the declaration) to a presumed consequence, which would be the failure to present an authorization, not contained or required in that declaration. It is also aggrieved in that it considers the procedure followed by the customs service regarding the violation of art. 11 to be illegitimate, absolutely null and void, and untimely. 991 of the CA imputed to the importer, since said violation is different from the one that led to the opening of the investigation, violating the constitutional principle of due process. He added that after consulting the corresponding computer service, it did not arise from any requirement for the presentation of prior authorization from the Ministry of Health with respect to the merchandise involved, for which reason he considered that the release for consumption was done without said authorization, especially given the lack of a requirement by Customs at the time of the officialization of the clearance in question, violating the provisions of ex ANA Resolution 2016/93 in this regard. He stressed that he subsequently submitted the aforementioned authorization to the ANA. He requests that the fine imposed be reduced, considering it to be exorbitant and confiscatory, violating the constitutional guarantees of arts. 16 and 17. Raises the federal question. Provide proof. He requests that a single sentence be issued in due course, acquitting all the defendants.
II.- That at fs. 71/79 the customs agent Mr. Juan Miguel Minassian, in his own right, files an appeal against the Ruling Resolution No. 4346/02 of 30-09-02 issued in file No. 602.594/96 by the 2nd Head of the Department. Customs Legal Procedures, by which it was decided to condemn the firm Bovan SA and the dispatcher, for alleged violation of art. 954, ap. 1th, inc. b) of the Customs Code, to jointly pay a fine of fifty-one thousand five hundred fifty-five pesos and forty-five cents ($51.555,45). First of all, he requests that this appeal be processed together with the one initiated in respect of Res. Ruling No. 4703/02 dated 21-10-02, issued in case No. 604.453/96 by the Department. Customs Legal Procedures, approved by Res. SDG OAM No. 831/02. That said joint processing, despite being acquitted in the latter, would be due to the identity existing between both causes, both with respect to the merchandise involved, as well as with respect to the import clearance by which the same was documented, the imputed infraction and the acting customs service official. The complainant is aggrieved in that he considers the configuration of the infringement of art. 954 of the CA, due to the mere lack of prior authorization from the Ministry of Health and Social Action, since the declaration of the merchandise made in the case is, in its opinion, complete and unobjectionable, having complied with the basic principle of truthfulness and accuracy of the declaration of the merchandise subject to customs destination. He invokes doctrine in support of his position. He alleges that the omission of the Customs control activity regarding the presentation of the prior authorization at the time of the official clearance in question (required by the rules of the former ANA Resolution 2.016/93) cannot be imputed to the importer or the intervening dispatcher seeking the application of the type of infraction provided for in art. 954 inc. b) of the Code. Customs. He added that this would be a non-customs certification, so the violations described by said code would not be applicable. Cites case law on this matter. He states that after consulting the corresponding computer service, no requirement for prior authorization issued by the national health authority regarding the imported supplies arose from it, for which reason he considered that the release for consumption was done without said authorization, especially given the lack of a request for said authorization by Customs at the time of the officialization of the clearance in question, in violation of the provisions of ex ANA Resolution 2016/93 in this regard. He claims that he subsequently submitted the aforementioned authorization to the ANA. He requests that the fine applied be reduced, considering it exorbitant and confiscatory, in relation to the background of the case referred to above. Invokes articles 915 and 916 CA thereon. Raises the federal question. Provide proof. He requests that a single sentence be issued in due course, acquitting all the defendants.
III.- That on pages 42/47 and 86/90 back, the fiscal representation answers the transfers conferred in case 17.895-A and its accumulated file 17.896-A, respectively. In said response documents, it denies, first of all, each and every one of the statements, facts, documentation and any other manifestation that is not the object of its express recognition. It refers to the background of the cases. (administrative files Nos. 604.453/96 and 602.594/96). It expands on the infraction figure of art. 954 of the Customs Code insofar as said precept protects the principles of veracity and accuracy of the committed declaration. It refers to the broad control function of the customs agency with respect to the international traffic of merchandise. It analyzes the different prohibitions contained in art. 954. The Court considers that the regulations established by Resolution ANA 2016/93 have been infringed in this case, since, given the nature of the merchandise (toilet soaps), the necessary prior intervention by the Ministry of Health and Social Action did not occur, authorizing the importation of the merchandise documented in DI No. 18.070-2/96. The Court points out that said authorization is necessary in order to determine the existence of a violation of an import prohibition. It explains the meaning of the expression "prohibition" as covering a wide range of import and export conditions, such as the presentation of an authorization, license or certificate. It states that, given the declaration made by the importer, if it were to go unnoticed, it would result in the introduction into the market of prohibited import merchandise. In this regard, it cites arts. 608 to 634 of the Administrative Code on the matter. He argues that, given the non-compliance with the requirements inherent to the regime by the acting customs agent, he is liable for the corresponding sanctions, and ignorance or error of fact or law that could be alleged does not exempt him from sanction. He invokes jurisprudence of this Court and of the Honorable Chamber in this regard. He cites arts. 902 and 908 of the Customs Code. He offers evidence. He requests that the appeals attempted be rejected, confirming the customs decisions, with costs.
IV.- That at fs. 93 the accumulation of file No. 17.896-A to that of file number 17.895-A is resolved. That at fs. 95 the proceedings are referred to Chamber E, in order to deal with the appellant's issues contained in points I, II and III,1 of the document on fs. 25/35, in points I and II of the document on fs. 71/79, and the issues involved therein. At fs. 95 the proceedings are referred to judgment.-
V.- That file EAAA No. 604.453/96 begins with the complaint made by the Import Supervision Division for non-compliance with the provisions of ANMAT Disp. No. 2145/95 and ANA Res. No. 2016/93, in relation to the merchandise documented in DI No. 18.070-2/96 which is added on fs. 5. On fs. 11 the customs value of the reported merchandise is reported. A summary is instructed on fs. 12, and all the proceedings are forwarded to the importer and the acting customs broker. On fs. 17/22 the customs broker presents his discharge. Due to the non-appearance of the firm Bovan SA, its rebellion is declared on fs. 23, also ordering as a better provision measure that the corresponding ANMAT certificate be attached, which is attached in copy on pages 20/21. On pages 25 and 27, reports from the Verification Division - Section B are added, informing that the ANMAT certificate in question is out of date and does not cover all of the merchandise involved. Once the customs and market value of the uncovered merchandise has been determined (pages 28/29), the violation of art. 991 CA is considered to have been configured, for which reason the hearing granted on pages 12 is extended. Res. DEPLA No. 4703/02 is issued, appealed in the case (pages 34/35), which, after an opinion from the Summary Division, is approved by Resolution SDG OAM No. 831/02.
VI.- That file EAAA No. 602.594/96 begins with the complaint filed by the Import Supervision Division on pages 2/4 for non-compliance with the provisions of ANMAT Disp. No. 2145/95 and ANA Res. No. 2016/93, in relation to the merchandise documented in DI No. 18.070-2/96, which is included on pages 7. On pages 19, the customs value of the reported merchandise is reported. A summary is instructed on pages 20, and all the proceedings are forwarded to the importer and the acting customs broker. On pages 24/28, the customs broker presents his discharge. On pages 30 and back. The letter offered as evidence by the shipping agent is upheld, and the importing company is also declared in default. The letter was not answered, and the evidence offered on page 43 was considered to have lapsed. After determining the fine to be applied (page 49), Resolution Ruling No. 50/4346 appealed in this case is issued on page 02. A reply to the letter addressed to the Secretariat of Policies, Regulation and Health Relations containing reports from the National Institute of Medicines and the Foreign Trade Service is added on page 21/68.
VII.- That file EAAA No. 604.453/96 begins with the complaint made by the Import Supervision Division for non-compliance with the provisions of ANMAT Disp. No. 2145/95 and ANA Res. No. 2016/93, in relation to the merchandise documented in DI No. 18.070-2/96 which is added on pages 5. That file EAAA No. 602.594/96 begins with the complaint made by the Import Supervision Division on pages 2/4 for non-compliance with the provisions of Disp. ANMAT No. 2145/95 and Res. ANA No. 2016/93, in relation to the merchandise documented in DI No. 18.070-2/96, which is included on page 7.
As can be seen from the review of the administrative records indicated (see pages 2/4 of each of the cited files) this is in fact a single complaint relating to import clearance No. 18070-2/96, and based on identical grounds. In reality it is the same complaint added in duplicate to each of the cited files.
VIII.- That Mr. Juan Miguel Minassian's claim is to request the acquittal of both defendants, obviously including the request for acquittal of the firm Bovan SA. That Mr. Minassian's stated claim to exercise the procedural representation of Bovan SA or another right that, being equivalent, would allow him to exercise the defense of that firm must be rejected. That, in effect, no representation has been accredited in this regard. Nor does it authorize such exercise of the right of defense for the potential liabilities that the appellant raises as a mere theoretical assumption in the sense that the importer could attempt to assert against the customs broker issues arising from its civil liability. Without the express consent of the interested party, exercised with the legal formalities required by the legal regulations, the Court cannot ex officio attribute the function of exercising an action or a recourse to a third party not designated by the actual interested party, in the case of the firm Bovan SA. Neither the National Constitution or the International Treaties invoked contribute anything in favor of the position maintained in this regard by Mr. Minassian. The only party that can procedurally defend the firm Bovan SA is the firm itself or its legally designated representatives. That Mr. Minassian will have, if the opportunity arises, the possibility of broadly defending his rights in the event of the initiation of a civil liability litigation by the importer, in said litigation. In the present process he only has the title, action or recourse, to defend his own rights or interests, within the scope of the jurisdiction of this Court, and not beyond. The opposite would imply setting aside, for alleged and hypothetical reasons of liability, the legal regime established for appeals and procedural representation in the Customs Code, a claim that is absolutely inadmissible.
IX.- That it is now appropriate to address the possibility of Mr. Minassian being able or not to file an appeal against resolution No. 4703/02, despite the fact that it absolves him in its article 3 of conviction in relation to article 954, paragraph b) of the Code of Administrative Offences.
That the fact that for the same facts and in relation to an identical charge formulated on the basis of the same complaint, as stated in Recital VII, an acquittal was issued in relation to the customs broker (resolution No. 4703/02) and that, on the other hand, by Resolution-Judgment No. 4346/02, a conviction was imposed on the same broker for the same charge, shows that the situation of resolution No. 4703/02 must be dealt with jointly with the appeal of resolution-Judgment No. 4346/02, since it is in fact a single case, which can only have as its culmination a single judgment, and not as has happened in the customs administrative sphere where, inadmissibly, contradictory rulings have been issued. That in this sense, Mr. Minassian's claim that his appeal be treated jointly for both resolutions must be admitted, insofar as it refers to his own right and procedural interest.
X.- As stated above on pages 2/4 of files 602594/96 and 604453/96, there are identical complaints (it is in fact a single complaint, used in duplicate), in relation to the same import dispatch No. 18070-2/96. On pages 10/12 of file 602594/96 and on pages 6/7 of file 604453/96 there is a copy of the judgment handed down in court, where it was considered that the facts in question did not constitute a crime. On pages 20 of file 602594/96 and on pages 12 of file 604453/96, a summary is being conducted in relation to the same facts, charging the infringement provided for in art. 954, inc. b) of the Administrative Code. and the interested party is ordered to be given a hearing. At pages 21/24 of file 602594/96 and at pages 17/22 of file 604453/96, Mr. Minassian answers the hearing in the summaries. At pages 50 of file 602594/96, ruling No. 4346/02 is issued, and at pages 34/35 of file 604453/96, ruling No. 4703/02 is issued, the first condemning the customs agent for violating art. 954, inc. b) of the Customs Code, and the second absolving the agent for the same violation.
XI.- That the processing of two investigations or proceedings for the same infraction, culminating in contradictory resolutions regarding the same facts and the same imputed infraction, reveals the existence of very serious irregularities in the processing of both cases, violating the principle non bis in idem, both in terms of the prosecution of the cases and in terms of their culmination with the issuance of a resolution that puts an end to them, even in a contradictory manner.
There can be no doubt that these are proceedings which, from the outset, have been vitiated by manifest nullity and cannot be remedied, regardless of the attitude of the accused in this regard, because they violate principles absolutely dear to our institutional order, such as those of due process provided for in art. 18 of the Constitution. In the summary proceedings, the same act has also been prosecuted more than once, leaving aside the fundamental guarantees contemplated by art. 1°) of the Criminal Procedure Code of the Argentine Nation, applicable according to the provisions of art. 1017, point 2° of the Customs Code.
That, following the terminology of Carlos J. Colombo (Cod. Proc. Civ. y Com. de la Nación Anotado y Annotado, Tomo II, p. 133 - Abeledo Perrot, 1969) we would be dealing in the present case with a type of nullity that can be called improper because it does not involve formal irregularities in the procedural acts, but rather irregularities by reflection, because their content violates some norm hierarchically superior to the procedural law. This superior law may enter into the constitutional scope (art. 18 CN), or into the scope of the substantive principles derived from that constitutional scope (art. 1° Cod. Proc. Penal de la Nación).
That, in this sense, even if all the acts of the proceedings followed in the present case were individually formally valid, the processes and resolutions issued therein are null and void without the possibility of correction due to violation of guarantees and institutional principles, the safeguarding of which cannot be waived.
That this type of nullity (arg. art. 168 Code of Criminal Procedure of the Nation) can be declared ex officio at any stage or degree of the process.
That as a consequence of the above, the processing of the summaries after the complaint recorded on pages 2/4 of each of the files (602594/96 and 604453/96) must be declared null, as well as the resolutions in which said processes culminated (Resolution 4703/02, resolution 831/02 and resolution ruling No. 4346/02.
That the consent of the appellant to the acquittal ruling in resolution 4703/02 is not an obstacle to this resolution, since in view of the existence of the conviction against Mr. Minassian in resolution No. 4346/02, for the same facts and the same charge, such acquittal is not such, but rather constitutes in any case a single legal situation, which due to being contradictory and violating constitutional and legal principles must be annulled.
That, for all the above, I vote for:
1°) Dismiss Mr. Minassian's claim to represent or exercise the procedural defense of the firm Bovan SA Without costs.
2°) To annul all the proceedings carried out in case files Nos. 602594/96 and 604453/96 following the complaints filed on pages 2/4 of those files, including the annulment of the opening of the case files ordered on pages 20 of case file 602594/96 and on pages 12 of case file 604453/96, and the annulment of Resolution 4703/02, Resolution 831/02 and Ruling No. 4346/02.
3°) Impose costs on the Treasury in relation to the declared nullity.
Dr. García Vizcaíno said:
I) That the facts have been reported in points I to VI of Dr. Krause Murguiondo's vote.
II) That there is no doubt that in files Nos. 602.594/96 and 604.453/96 the principle of non bis in idem has been violated.
That I have 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 person, applying the principles of arts. 17 and 33 of the CN (Tax Law, Volume II, pp. 96/97. De Palma Buenos Aires, 2nd Edition, 2000).
That in this case the appeals against the contradictory contested resolutions must be dealt with together due to the identity of the subjects, object and cause, so that by affecting the aforementioned principle of non bis in idem the order opening the summary of prevention of 18/6/96 that would have been issued in file No. 604.453/96 (see pages 12 of file 602.594/96) invalidated the summary proceedings continued in file No. 602.594/96.
That, likewise, the acquittal approved by the Deputy Director General of Metropolitan Customs Operations through Res. 831/2002 of 12/11/02 meant that the previous conviction issued against the appellant customs broker was implicitly left without effect and, consequently, Ruling No. 4346 of 30/9/02, for being manifestly incompatible with PLA Resolution No. 4703 of 21/10/02 approved regarding the acquittal by the aforementioned Res. 831/2002.
That, therefore, it is appropriate to declare the nullity of the actions taken in file No. 602.594/96 and, consequently, of Ruling No. 4346 of 30/9/02 of the Department of Customs Legal Procedures.
That, therefore, the acquittal decreed with respect to the customs agent Juan Miguel Minassian by Resolution DEPLA No. 4703/02 of the Department of Customs Legal Procedures, confirmed in this aspect by Resolution No. 831/2002 (SDG OAM), must be confirmed.
III) I agree with what was stated by the previous speaker regarding the lack of procedural representation of the customs agent to act on behalf of the importer Bovan SA.
Therefore, I vote for:
1°) Dismiss Mr. Minassian's claim to represent or exercise the procedural defense of the firm Bovan SA. Without costs.
2°) Declare the nullity of all actions taken in file No. 602.594/96 as of the order opening the summary of 30/9/97 (page 13) and, in particular, Ruling No. 4346 of the Customs Legal Procedures Department of 30/9/02. With costs to the Treasury.
3°) Confirm the acquittal decreed with respect to the customs agent Juan Miguel Minassian by Resolution DEPLA No. 4703/02 of the Department of Customs Legal Procedures, confirmed in this regard by Resolution No. 831/2002 (SDG OAM).
Dr. Winkler said:
I agree with the preceding vote.
By virtue of the above agreement, by majority, IT IS RESOLVED:
1°) Dismiss Mr. Minassian's claim to represent or exercise the procedural defense of the firm Bovan SA. Without costs.
2°) Declare the nullity of all actions taken in file No. 602.594/96 as of the order opening the summary of 30/9/97 (page 13) and, in particular, Ruling No. 4346 of the Customs Legal Procedures Department of 30/9/02. With costs to the Treasury.
3°) Confirm the acquittal decreed with respect to the customs agent Juan Miguel Minassian by Resolution DEPLA No. 4703/02 of the Department of Customs Legal Procedures, confirmed in this regard by Resolution No. 831/2002 (SDG OAM).
Register, notify, promptly return and archive the administrative proceedings.
