1.- Some time ago, I referred to the sanction of an internal regulation (the “Number: DI-2023-131-E-AFIP-AFIP”), through which the Federal Public Revenue Administration (AFIP) began to accept the possible application of the institute of reparation of damages as a cause of extinction of the criminal action (see art. 59 inc. 6 of the Penal Code) for some cases of customs crimes, under the premise that “the impact on the protected legal asset is of a patrimonial nature"(1).
2.- Although the jurisprudence had already begun to accept the application of this institute even with the previous opposition of the AFIP, this new rule should have further favored its recognition as an alternative way of resolving the conflict.
Unfortunately, in practice this was not the case, since, in different court proceedings, constant objections began to be seen from representatives of the customs service. In these presentations, not only was the alleged lack of operation of the institute reiterated, but it was also pointed out that it was not applicable because smuggling is a crime that affects supra-individual interests and with an effect that exceeded the mere economic damage to be repaired, especially when the merchandise involved is subject to prohibitions.
Thus, this initial push proposed by AFIP began to be halted by Customs itself, which stated that it was a power delegated to the officials who represented the Agency (Disp. 76/2021), highlighting that the new regulation established opposition to the application as a general rule and that, furthermore, it was only an internal action protocol that did not generate rights for third parties, nor did it establish a review procedure.
3.- Faced with this situation, which generated legal uncertainty and inequality, the customs service recently decided to sanction a new internal regulation through which it appears to return to that initial impulse and establishes the conditions for the competent areas to consent to the admissibility of the comprehensive reparation referred to, detailing the items and/or concepts that, in their opinion, should be considered for the purposes of determining the comprehensive patrimonial damage.
This is General Instruction 5/2024 dated March 18 of this year (IG-2024-5-E-AFIP-DGADUA), which indicated that the origin of the consent for the full reparation of damages is subject to the verification of the following requirements:
“a) The impact on the protected legal asset must be of an eminently patrimonial nature.
b) There must be unanimous agreement of all the defenses and the Public Prosecutor's Office.
c) This must not be the case as provided for in paragraphs b), c), d), g) and h) of article 865; and articles 866 and 867 of the Customs Code.
d) Express authorization must be requested for this purpose, in accordance with the provisions of General Instruction No. 2/17 (AFIP) and its amendments.".
In addition, payment of the patrimonial damage, legal costs and expenses is required, as well as the express waiver of any action against the Treasury and the abandonment of the merchandise.
As for how the patrimonial damage to be repaired is formed, point 2 of the rule states that "it must be includedamong others, the following items and/or concepts"
"a) Customs and non-customs taxes that may be payable, as well as the amount unduly paid by the Treasury in the form of export incentives and their respective interests (…)
b) The costs of storage, deposit and/or custody of the merchandise involved (…)
c) The costs required for the final disposal of the merchandise in the event that abandonment is accepted (donation, commercialization or destruction by means that are not harmful to the environment), or, at the option of the General Directorate of Customs, the reshipment of the goods by the responsible party when the merchandise is prohibited from import, is subject to the presentation of licenses prior to its release or it is understood that the materials resulting from its destruction may be harmful to the environment (…)
d) The regulation of fees of tax representatives (complaint) (…)
e) An amount equivalent to the minimum fine that would have been applicable in the event of a conviction, considering it as an objective parameter for calculating said amount, which will be used to compensate for the non-patrimonial damage caused to the protected supra-individual legal asset. ... ".
4.- Although we welcome the intention of the customs office to establish objective guidelines aimed at avoiding legal uncertainties generated by the different opinions held by the lawyers representing them in each judicial case, we believe it is appropriate to make some considerations in this regard.
First of all, it is important to remember that although the position of the customs as a “victim” must always be heard in the process, it cannot in any way be considered binding. In this regard, it is worth mentioning that the Third Oral Economic Criminal Court has mentioned that “…the opposition of the complaining party does not constitute an obstacle to the application of the institute of reparation to the case comprehensive, since the agreement of the latter does not constitute a specific requirement for its admissibility"(2).
On the other hand, by requiring that the legal asset “protected must be of an eminently patrimonial nature” and not exclusively patrimonial, it is noted that it is the customs itself that rejects this jurisprudential tendency that tried to limit its application only to cases in which the accused of the crime of smuggling had only wanted to avoid paying taxes (3). This same idea is reinforced by the fact that they would have included within the category of reparation, the possibility of abandoning the merchandise or its re-shipment when it is about prohibited merchandise or merchandise harmful to the environment.
Thus, this provision reaffirms that it is not appropriate to make any distinction based on what the accused would have wanted or whether it is a case in which, in addition to the existence of an evaded tax obligation, it could have caused some additional effect, such as, for example, the possible non-compliance with a restriction.
It is also noted that the restrictive position that considered that the benefit in question would only be viable if it is a case of simple smuggling is rejected. On the other hand, although it seems reasonable to include the payment of taxes related to the operations analyzed within the comprehensive repair category, we do not agree that, as a general principle (4), the abandonment of the merchandise subject to imputation is required, nor the payment of the fine, since both issues are linked to sanctions, that is, with the imposition of a penalty that could not be applied and because in addition, in the customs penal regime, these are "accessory" sanctions established in art. 876 inc. a) and c) of the Customs Code that, due to the effect of the extinction of the penal action, are not applicable (5).
For all these reasons, even though the mere payment of taxes may not be sufficient for the purposes of fulfilling a “comprehensive reparation”, making it necessary to offer something more to compensate for the non-patrimonial affectation caused to the protected supra-individual legal asset, we consider that the parameters for establishing That plus They cannot be the same for all cases of smuggling.
In this regard, we share the position held by Dr. Perez Barberá, in his capacity as Attorney General, when he stated that “If there has been no such fiscal circumvention, because, as in this case (and in other possible cases), the smuggling did not involve the non-payment of customs duties, then what fully compensates for the damage will have to be an amount or delivery of goods such that it contemplates the complete patrimonial content of the crime... such specification must ensure, first of all, that the accused did not benefit in any way from the crime in question. But, in addition to this, it must contemplate two things: ... that it compensates the public administration in some way... and secondly that what is offered as compensation has, objectively, effects of special prevention with respect to the offender.…” ().
Thus, the content of such compensation should not be analyzed in the same way when the crime of smuggling has a more patrimonial content, in the case in which the violation of customs control has a minor or null economic consequence. That is, if the charge is linked to the affectation of customs control for the purposes of a lower tax payment, the cancellation of the same is not only a condition sine que non, but also implies the most important amount to be taken into account in determining the compensation, while the extra to be offered for the purposes of compensating the public administration may be less. In this logic, if smuggling has a predominantly tax impact, paying what is owed implies in some way recomposing said situation and that the alleged defendant is not benefiting justly because he paid everything that he should have paid.
However, in cases of smuggling where the impact on customs control has non-economic consequences, such as evading a restriction, the extra to be offered as a donation must be greater in order to rectify the situation, with the possible delivery of the alleged contraband object being applied to a greater extent here as a requirement so that the accused does not benefit (this is provided that the irregularity cannot be regularised, because otherwise, abandonment would not necessarily be something that can be demanded).
On the other hand, we reiterate that even though this new instruction considers that such reparation would not be possible in the cases of aggravated smuggling of the
Articles 865, paragraphs b), c), d), g) and h); 866 and 867 of the Customs Code, we understand that depending on the specific case, its provenance could also be analyzed. For example, it would seem that some assumption that is covered by the aggravating circumstance of paragraph d) of art. 865 could be accepted if, for example, the average crime can also be repaired or, some case that falls under paragraph g) of the referred norm - merchandise subject to an absolute prohibition - in which the legislator himself authorized in said assumption the most lenient punitive treatment of minor smuggling infraction (see art. 947 of the Customs Code).
For all these reasons, we consider that the issue must be analyzed in each specific case in light of the principles in dubio pro reo (6) and pro homine (7) The analysis of comprehensive reparation may also include issues not only arising from the repair of specific damages, but also aspects aimed at future commitments and prevention.
2. TOPE 3, autos N° CPE1477/2010/T01, entitled “PUCHE, RAUL; GADALETA, IGNACIO AND OTHERS S/ INF. LEY 22.415”, dated 02/06/2023.
3. According to Incident of acceptance under Law 27.260 – case no. 529/2016, Titled: “NN S/INF. LEY 22.415, JNPE No. 6, Sec. No. 11 – File No. CPE 529/2016/205/84/CA132- Order No. 28.850 – Chamber B – National Economic Criminal Court – 25.3.2019/25/2019. It was pointed out there that “the nature of the maneuver and the purpose pursued by it in each particular case must be analyzed … since it cannot be considered that we are in the presence of a maneuver carried out only to avoid paying or reduce the amount of import duties and other charges corresponding to the merchandise involved, but rather it would be the clandestine introduction into the country of merchandise that in that way would also have been removed from the controls linked to compliance with electrical safety standards established for its consumption within the country.” This same position seems to arise from a misreading of the ruling of the Fourth Chamber of the Federal Criminal Cassation Court in the case “RUCHTEIN, Sergio Leonardo s/ appeal for cassation” dated June 1269, 19.4 with Reg. No. XNUMX/XNUMX, in which, collecting a previous precedent, it is indicated that it would only be applicable to the extent that the crime of smuggling charged is related "exclusively" with customs obligations of a tax nature, which in our opinion is not appropriate, because the institute does not require such exclusivity.
4. In such a case, it could be required, for example, in the event that the prior intervention required for the import or export of the merchandise cannot be obtained.
5. Cf. the opinion of the SCJN in the precedent of 28.6.2018 in re “Tortoriello de Boero, Mónica” in which it left out the sentence that was limited to indicating that the payment of the minimum fine was a condition for the institution provided for in art. 76 bis of the Penal Code and ignored the fact that the Court has established that the fine sanction contemplated in art. 876 par. 1 of the Customs Code, for the crimes of smuggling, attempted smuggling and concealment of smuggling, is accessory to the sentence of deprivation of liberty.
6. See the opinion of the Attorney General in case CPE 1326/2019/TO01/5 “Sepúlveda” among others.
7. Luis M. García recalls that the Inter-American Court of Human Rights has expressly identified the pro homine principle as “a principle of extensive interpretation of human rights and restrictiveness of their limitations” (IACHR, OC 5/85) – Luis M. García “International human rights law: a question of international law or a question of domestic law?”
8. Mónica Pinto asserts that the pro homine principle contains a hermeneutical criterion that informs all human rights law, by virtue of which one must resort to the broadest norm, or the most extensive interpretation, when it comes to recognizing protected rights and, conversely, to the most restricted norm or interpretation when it comes to establishing permanent restrictions on the exercise of rights or their extraordinary suspension. This principle coincides with the fundamental feature of human rights law, that is, always being in favor of man (e.g. art. 5 ICCPR; art. 29 ACHR) art. 5 (ICESCR) art. 1.1 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: art. 41 Convention on the Rights of the Child) - Mónica Pinto, The pro homine principle. Hermeneutic criteria and guidelines for the regulation of human rights in "The application of Human Rights Treaties by local courts", Cels. Puerto Editores, 2004, p. 163.
Lawyer. Specialist in Criminal Law from the Universidad Austral. Professor of Customs Criminal Law at various public and private universities. Author and contributor to books and articles on this specialty. Currently, he is a partner at the Durrieu Abogados law firm, in charge of the Customs Criminal Law Department.