Although we traditionally know the amparo action regulated by law 16.986, the Customs Code regulated a similar institute in its articles (Sec 14, Procedures; Title 3, Resources; Chapter 3; Procedures before the National Tax Court); and more specifically in its arts. 1160 and 1161, with very few variations in relation to what is regulated by law 11.683.
These rules establish that those who, in the normal exercise of their rights, may be victims of an unjustified delay in the conclusion of a procedure or diligence by the customs service may appeal to the National Tax Court. In such case, said Court may request from the Customs Service the reports it deems pertinent to determine the cause of the delay, and then make a decision on the case.
Procedural remedy
In the wording of article 1160, the term “appeal” is used as a procedural remedy for the reparation of a violated right. However, according to the constitutional reform of 1994, the amparo is an action of its own according to article 43, without requiring the need to demonstrate the nonexistence of another suitable means for the immediate reparation of a right violated in an imminent, arbitrary and manifest manner. In this sense and as a complement to the constitutional right of amparo, the term “appeal” loses relevance. As a consequence of this and dealing with an action of its own, the possibility of judicial review of those acts considered harmful cannot be denied, since the opposite means prohibiting the possibility of judges exercising control over the legality of certain acts and especially administrative acts, since it would imply the impediment of effective judicial protection.
Although the purpose of the protection as mentioned in the Customs Code lies in protecting the administrators in the area where such acts are programmed (according to "The Procedure before the Tax Court of the Nation and its Higher Instances - Catalina García Vizcaíno - Page 460), maintaining due coherence with the subject matter in question, in accordance with the aforementioned art. 43 of the National Constitution, it is not appropriate to prevent the possibility of a direct action before the Judiciary, using as arguments for such impediment articles 1160 and 1161 of the Customs Code.
Role of the State in relation to society
In the case at hand, decisions emanate from a State Power, for which it is pertinent to consider the role that the State has in relation to society. There are two theories in this regard. The State-End and the State-Means; in the first case, the State is exhausted in itself and thus serves itself, representing a typical concept of totalitarian states. While in the second case, the State exists with the objective that its achievements occur outside of its own existence, for this reason it is a means for society as a servant of the common good, for which it exercises its powers but for the achievement of the ends at the service of the administered. Therefore, by deviating from these parameters it loses its essence and its reason, also losing its power to impose a determined order. And the recipient of this order is the citizen taxpayer.
It is true that there are certain rules that impose on the public official a conduct of omission (art. 19 CN) but also in other cases he has the duty to act and issue a ruling within certain time periods, for which he must pronounce himself in a timely manner because the State does not have the privilege of silence, and there must be a reasoned justification of the consideration in extensive periods. Therefore, the amparo is an instrument to reach decisions when the administration has exceeded the term for its pronouncement in an arbitrary manner or exercises the denial through silence (Juan F. Linares "Systems of Resources and Claims in the Administrative Procedure Pages 36 and 37)
Although there are specific regulations regarding Customs, it is still part of the State and all regulations must yield to the highest-ranking one, which in this case is none other than art. 43 of the National Constitution. Based on this, it can be interpreted that the procedural remedies referred to in the Customs Code are subtypes of protection within a specific legal body, since the Protection is an autonomous action of its own and is not a simple complaint or claim and that it also emanates from the same National Constitution (art. 43
Normative hierarchy
Considering that the term “amparo” is mentioned in various regulations (law 11.683 and the Customs Code), I consider that a citizen whose rights have been seriously affected cannot be required to exhaust such “resources” in order to then be able to file before the courts the action provided for in art. 43 of the CN; also taking into account that in such a process the constitutionality of a harmful act by the State may be considered. I do not intend to remove the relevance of what is regulated by the CA, but to contextualize the normative hierarchy that corresponds to a state of law.
By: Dr. Guillermo J. Sueldo, Member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice
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