In the city of Buenos Aires, on the seventeenth day of the month of December of one thousand nine hundred and ninety-seven, this Economic Criminal Court No. 1, composed of Drs. Susana Pellet Lastra, Enrique Carlos Schlegel and Jorge Pisarenco, who presides over it, with the assistance of the Secretary Dr. Elizabeth A. Marum, meets to issue judgment in case no. 158/97, entitled: "PARK, Woo Ung s/smuggling", against WOO UNG PARK, Korean national, resident in the country, born on May 15, 1943 in the city of Seoul (Republic of Korea), son of Dokium and Yong Boon Nam, merchant by profession, married marital status, holder of DNI 92.037.698, with address at 93 Anchorena Street, top floor, Capital Federal. It is noted that the Public Prosecutor's Office is represented by Dr. Marta Inés Benavente, head of the Trial Prosecutor's Office No. 3, and the Defense is represented by Dr. Patricia Garnero, head of the Official Defense Office No. 2 of the Jurisdiction, with registered address together with her client at Comodoro Py 2002, 7th floor, Capital Federal.
From whose records,
RESULTS:
I.- That these proceedings were initiated as a result of procedures carried out by personnel from the Crime Prevention Division of the Federal Police, consisting of various searches ordered by the Examining Magistrate on 15 April 1996, as a result of which two import clearances were seized, in photocopies, identified with nos. 9545 for 1992 and 9545 for 1993, by means of which a total of one hundred and eighty "Honda" motorcycles were transferred to Park, which for their nationalisation would be covered by temporary import clearance no. 1243/93, the first two being apocryphal and the last not corresponding to the merchandise in question. And, on the other hand, the existence of foreign merchandise consisting of diodes and integrated circuits with a market value determined by the ANA of nine thousand three hundred pesos ($85) was determined at the address on Anchorena Street 93/9.300, the address of the accused, without the corresponding documentation proving their legitimate introduction into the market, for which reason the police proceeded to seize them and arrest the accused.
II.- On pages 243/245 and 263/264, the investigating judge ordered the prosecution of Park, considering that there was sufficient evidence to consider him the author of an allegedly criminal conduct, consisting of the illegal entry into the market of the merchandise of foreign origin as shown in the certified photocopies of the apocryphal import dispatches nos. 9545/92 and 9545/93 (art. 865, paragraph "d" of the Customs Code and art. 292 of the Penal Code); and of the former consisting of the introduction into the market of the seized foreign merchandise as recorded in the minutes on pages 253 (art. 863 of the Customs Code). He also considered that the illegal acts were materially present, and that Park could be held responsible as the author thereof (arts. 55 and 45 of the Penal Code). In these same resolutions, an embargo is placed on the defendant's assets up to the sums of two hundred thousand and ten thousand pesos, respectively.
III.- At pages 301/306, the Public Prosecutor for Economic Criminal Courts, in charge of Public Prosecutor's Office No. 5, Dr. Miguel Schamun, filed a request for referral to trial, considering that the conduct displayed by Park should be classified "prima facie" as aggravated smuggling, provided for and punished by arts. 863 and 865, paragraph "d" of the Customs Code and art. 292 of the Penal Code, in real concurrence with the crime of smuggling, provided for in arts. 863 and 864, paragraph "a" of the Customs Code, with the person named as author being responsible (art. 45 of the Penal Code), in relation to the goods detailed in the alleged import dispatches nos. 9545/92 and 9545/93, and in the minutes at pages 253.
IV.- That on page 311 the investigation and the referral of the case to trial are declared closed, with respect to the accused Park, due to the lack of exceptions or opposition to this.
V.- That in turn the Prosecutor for the Oral Courts, Dr. Marta Inés Benavente, for the reasons of fact and law that she set forth when formulating her argument, stated that it has been conclusively proven that Park has committed the crime of smuggling provided for in art. 864 inc. a) of the Customs Code, in relation to the merchandise detailed in the batch report on fs. 253, requesting that he be sentenced to the penalties of one year of suspended prison and one year of disqualification from trading, plus the accessories of art. 876 of the same normative body, incs. d), e) -2 years-, f) and h). On the other hand and in relation to the importation of motorcycles, she promoted the acquittal of the accused, since there are no elements to affirm the existence of the crime of smuggling. He stated that the original DIs, motorcycles and any type of documentation proving the entry of the same into the square were not found and that it is not proven that the originals had been presented to the customs service.
VI.- For its part, the Defense, in relation to the importation of the motorcycles, adhered to the request for acquittal made by the Public Prosecutor's Office, also requesting the application of the doctrine established by the SCJN in the "Tarifeño" and "García" rulings. Regarding the remaining merchandise, it requested the annulment of the telephone interventions and of all the actions taken as a result. It stated that according to the records in case 18.891, the procedure was initiated on the basis of a complaint that led to the performance of intelligence tasks that, in accordance with the provisions of the instructor, generated the telephone interventions that in turn supported the search warrant and subsequent seizure of the merchandise. The complaint was made by a person whose identity was kept confidential. That there was not sufficient motivation to order the telephone intervention that corresponded to Park. It cited jurisprudence to this effect. Thus, it considered that the application of arts. 123, 140, 168 and 172 of the CPP and arts. 18 and 19 of the CN. In the alternative, he raised the nullity, by application of arts. 138 and 140 of the CPP, of the arrest and search reports because he questioned the existence of the witness Perrone. Finally, and in relation to the merchandise recorded in the batch report on fs. 253, he requested, in the event that the requests for nullity raised are not accepted favorably, the acquittal of his client by application of art. 3 of the CPP In this regard, he stated that the witness Kum declared that the merchandise belonged to her husband and that Park had it in her possession at his request. That the doubt as to whether the merchandise was entered legitimately should favor Park. He formulated the reservation of appealing in Cassation and of the Federal case.
AND WHEREAS:
TEST ITEMS:
The following pieces of evidence were introduced during the debate:
1) Copies of the alleged import dispatches nos. 9545/92 and 9545/93 and reports from the Judicial Administrative Division of the ANA on pages 210/221.
2) Case No. 18.981 of the Economic Criminal Court No. 2, Secretariat No. 3, requested "ad effectum videndi"; and the typewritten copies of the wiretaps made to Park, arranged therein.
3) Expertise in the electronic specialty, the result of which appears on page 374 of the case.
4) Green folder with the cover “Reserved documentation in case 19.317 Park.”
5) ANA file no. EAAA 1996- 572.805 and its additions: DDI 55.976-7/93, its partial no. 2, copies of file no. 141.390, DIT 1243-9/93 and list of import dispatches.
6) Transparent folder with photo views.
7) “Invoice” paper no. 22393, “JA Mocciola SA” invoice no. 238, with copy and receipt no. 234, two “Argentine Lines” tickets and a photocopy of two diaries.
8) Report of the ANA, Secretariat of Legal Affairs, pages 246/257, related to the verification and appraisal of the seized electronic goods.
9) The note from the Head of the Criminal Analysis Department on fs. 1; reports from the Second Head of the ANA Importation Division on fs. 220 and fs. 9 of file EAAA 1996-572.805; and the minutes on fs. 241 back/242.
10) Actions related to the search of the home at 89/95 Anchorena Street, recorded on pages 113/127 of Annex I of case no. 18.981.
11) Verification and appraisal record of the electronic material on page 253.
12) Testimony of Domingo Luis Gaite, who stated, when the search warrant on pages 121/3 was shown to him, that the police asked him to be a witness to a procedure; that they took him to Anchorena Street at number 80 and he entered the first floor where the police found many blank ID cards, passports, a box with electronic merchandise and motorcycle documentation. That the merchandise was found in a room. That the police entered in front and the witnesses in the back. That there was another young man who was also a witness. That at the scene they drew up a report with what they had seen and made him sign it there. After showing the photograph in the annex with photographic views, he recognized the box shown there as the one seized.
13) Testimony of María Celia Naon, Second Chief of the Importation Division of the ANA, who stated at the hearing, when the report on pages 220 and 9 of file 572.805 was shown to her, which confirms them. That the DIs have many empty spaces and would not have been accepted by customs; furthermore, they are not perforated; that said procedure did not enter the ANA in Buenos Aires, because it never reached number 9000, meaning that they should have another number. That if they had been presented they would have been detained, and an extension would have been required because the data is not complete.
14) Testimony given at the hearing by Antonio Maurello, Head of the ANA Safekeeping Division, who stated, when the actuarial report on pages 241 back/2 was shown to him, that he did not remember having answered the content of said report. When the DI were shown in photocopies, he stated that he did not remember them, that it may be that they had spoken to another person in the office; that he was surprised that it says file instead of office.
15) Testimony of Alejandro Magdalena, ANA inspector, who stated, when the batch report on page 253 was shown to him, that he had prepared and signed it. That he had observed the merchandise to assess it. That he did not remember the condition of the merchandise. That it is generally clarified whether the merchandise is used and if nothing is stated, it is because it is new. That due to the quantity of merchandise, they were not samples, because it exceeded the quantity, which can be presumed to be for sale. That in the case of verifying seized merchandise, it is not established whether it is a sample or for commercialization, they only verify quality and type and the import duties that would be paid if it were nationalized. That the values of the merchandise arise from the antecedents that they may have. That the age of a diode cannot be determined.
16) Statements made by the witness Kuon Ho Kum at the hearing, who said that she gave Park electronic material because her husband had asked him to sell it. That it was delivered without documentation 7 years ago; that a person had left it at her house. That her husband is in Peru. That her husband is not an importer.
17) Statement of Woo Ung Park, produced during the debate, who stated that he confirms what was stated in the instruction. That the photocopies of the dispatches were delivered by Mr. Vetel; that he had signed the original of the dispatches but as he did not pay everything he left the photocopies. That he saw Vetel every week, then he died and he could not recover the money. That the declarant saw him in his own premises in Entre Ríos and Venezuela, that Vetel lived three blocks from that business. He added that he paid a deposit of $2700 for the motorcycles and received that documentation in photocopies to find out later at ANA; that at ANA he found out that that container did not exist, that he never saw the motorcycles. Regarding the transformers, in the instruction he stated that he had received them three years ago as a sample from Korea, but that was so as not to bother the people who had given them to him. That a person, CHin Yong Kim, had given him the merchandise to see if he could sell it. That this person has been living in Peru for two years. That he looked everywhere and since he could not sell it, he had the samples at home. That they were delivered without documentation because the declarant did not sell anything; that Kim had told him that if he did not sell it, he should return it, but the declarant did not return it because not even a month had passed. That he was not in charge of selling electronic merchandise.
NULLITIES RAISED BY THE DEFENSE:
Dr. Patricia Garnero raises two subsidiary claims for nullity. The first of these is based on the invalidity of the procedure carried out in the present case that culminated in the seizure of the merchandise, considering that the intervention of the telephone number 866-1896 belonging to her client, ordered by the investigating judge, lacks sufficient motivation. She adds that the respective order does not specify what intelligence tasks were carried out, and it does not indicate how they are linked to Park's address; there is, on the other hand, no other investigation channel. She concludes that such circumstances entail the nullity of the telephone interventions and, as a logical consequence, that of all the acts that were the result of them: search warrants, arrest reports, seizure and subsequent acts (art. 123, 168 and 172 CPP and arts. 18 and 19 CN).
The second claim for nullity, made by the defense in the alternative, is based on the fact that the minutes attached to pages 121 and 122, although they have been signed by two people as witnesses, in fact one of them - Perrone - did not exist. It states that he could not be found and that he was not summoned at the preventive hearing or at the investigation; resulting in a violation of arts. 138 and 140 of the CPP, which require the presence of two witnesses.
For the purposes of resolving the defensive claims, it must be taken into account, initially, that, as the Honorable Criminal Cassation Court has repeatedly ruled, art. 166 of the Code of Procedure defines a taxative system of nullities that prevents the declaration of invalidity of procedural acts that exhibit formal defects -with the exception of violation of constitutional guarantees-, if their disqualification has not been expressly provided for, or if there is no non-compliance with the provisions relating to the capacity of the Court, the participation of the Public Prosecutor's Office or the intervention, assistance and representation of the accused (Chamber I, case no. 27, reg. 27, «Freire, Roberto A. s/ law 23.737, rta. on 11/8/93; case no. 186, reg. 274, «Terramagna, Juan I. s/ rec. of cassation» rta. 25/8/94; case no. 102, «Aguilera, Oscar s/rec. of cassation, rta. on 23/3/94, reg. 147). Furthermore, the legal provisions on nullity must be interpreted restrictively if one does not want to distort the legal system through an extensive or analogical interpretation (Chamber III, case no. 302, «Ausili, Gustavo M. and another s/ rec. of cassation», rta. 22/6/95, reg. 128; «Alvarez, Domingo Vicente, s/rec. of cassation», reg. 100 bis of 30/3/94; «Mendoza, K. and Amaya, JR s/rec. of cassation», reg. 122, of 19/4/94; «Malaguarnera, Josefa del Carmen s/rec. of cassation», reg. 133 of 27/4/94, among others).
Having clarified this, it is necessary to address the study of the questioned acts and their correspondence with the legal requirements.
Regarding the lack of justification for the wiretapping order, the Court considers that the request is not admissible. Let's see.
The defence argues that arts. 18 and 19 of the CN have been violated. However, it should be noted, on the one hand, that the rights protected by such rules are not unlimited; and on the other, that when the content of a communication affects third parties or public order or morality, the communication no longer falls within the scope of private actions under art. 19 of the CN and is not exempt from state interference. This does not mean the total loss of immunity, but art. 18 of the CN applies analogously here in the sense that the law must determine in which cases and with what justifications its knowledge and occupation is appropriate (see García, Luis M., «The intervention of telephone communications and other telecommunications in the CPPN: a blank check to spy on our private life» in Cuadernos de Doctrina y Jurisprudencia Penal, Year III, no. 6, pages 412/13).
This law is our procedural system. Art. 123 of the Code of Procedure establishes that sentences and orders must be motivated under penalty of nullity and art. 236 provides that the intervention of telephone communications requires a reasoned order. This last rule is inserted within the chapter "Means of proof" which, related to the general principles of criminal proceedings, implies that such means must be intended to prove the existence of the crime and its authorship. That is to say, telephone interventions cannot be carried out in any case and for any reason or purpose, but must be carried out under certain conditions and with the aim of proving the aforementioned points; therefore, it must be analyzed whether such circumstances occur in the case under study.
On page 48 of the proceedings 18.981 of the Economic Criminal Court No. 2, Secretariat 3, which were sent "ad effectum videndi" and from which the present case is a derivative, there is the order of the investigating judge by which said measure is ordered. It is noted there that it is ordered on the basis of "the investigative tasks carried out by the Criminal Analysis Department of the Federal Police, previously available documentation..." and in order to verify the reported facts.
It is clear then that in order to determine the existence of sufficient evidence to order the carrying out of said test, the proceedings that precede it must be resorted to. In effect, although it is true that the aforementioned resolution is not very precise because it does not specifically identify which elements of judgment support each of the telephone interventions ordered therein, the generic reference to the preceding investigation and documentation tasks allows, with a minimum of logic, reasonableness and common sense, to delineate the grounds that have supported the questioned measure in relation to the telephone line corresponding to the accused. It also allows the control of the legitimacy of said measure, both by the parties, and by this Court and other judicial bodies that may intervene, since the pieces of evidence cited are added to said proceedings; thus excluding a possible arbitrariness.
Thus, on page 47 there is a report from the Inspector Commissioner of the Criminal Analysis Department in which he states that a person named Ricardo Bartolomé Gaggero provided information and addresses on citizens of oriental origin who are engaged in committing criminal acts in violation of Law 22.415, records that included the defendant in this case. This led to intelligence work being carried out in said places - one of which was Park's home -, consisting of the observation of said areas and photographic captures (see pages 38/9), which would have confirmed the suspicions. In this regard, it should be noted that the person who provided the information about the alleged crimes, Gaggero, gave a testimonial statement on page 51 of the aforementioned proceedings, and on that occasion he referred not only to the address of Anchorena 95, 1st. -later raided-, but also a person of oriental origin known as "Amarillo Par", reinforcing the statements of the police personnel. There was, then, a reasonable suspicion about Park's involvement in a criminal act.
With regard to the deficiencies pointed out by the defense, it is unnecessary to bring up what was stated by the Honorable National Court of Criminal Cassation, when ruling on the existence of grounds for a wiretap: "the presence of a certain ambiguity in the presentation of the conclusions or technical flaws in the wording do not, in principle, constitute deficiencies of such magnitude that they imply invalidating or disqualifying the ruling as a jurisdictional act... That the requirement in question (due motivation) ... is also fulfilled in certain cases... when the ruling refers clearly, precisely and specifically to the circumstances or evidence of certain parts of the case that are sufficient and indubitable to agree on the due support" (Chamber III "Tellos, Eduardo Antonio s/rec. de cassation, case 65, rta. 24/3/94).
However, on the other hand, it is necessary to distinguish whether or not the order ordering the measure is well-founded, from cases in which, despite not being well-founded, it responds incontrovertibly to the only evidence of the case that precedes the magistrate's decision, since in the latter case there is no burden on the facts because there are, prior to the order, sufficient elements incorporated into the investigation that allow a well-founded suspicion of the commission of a crime. In the case under consideration, even if it were considered - as the defence does - that the order lacks sufficient motivation, we would find ourselves in the second case, since it can be affirmed that said elements are present, in light of the reasons invoked.
In these circumstances, the Court considers that the measure restricting rights was ordered in accordance with the current legislative order. It was ordered by a judge; there were sufficient indications to justify it; and it also had an investigative purpose and the obtaining of evidence aimed at verifying the criminal act and the authorship, being proportionate in the specific case to this objective, taking into account the seriousness of the same; for this reason, the claim raised must be rejected.
Furthermore, it should be noted that the initial suspicions that led to the adoption of the measure were later confirmed, since merchandise that had been illegally brought into the market was found at that address.
Furthermore, and contrary to what Dr. Garnero maintained, it should be clarified that there was a separate, independent investigation channel prior to the wiretapping, and that it is constituted, precisely, by one of the grounds that led to the adoption of said measure: Gaggero's statements, which led the police personnel to the defendant's home. Therefore, the requested nullity could not lead to the invalidity of the seizure of the merchandise in question, or of the actions taken as a result, as requested by the petitioner.
With regard to the claim of nullity of the minutes of pages 121/2, which the defence bases on the presence of only one witness, instead of two as required by art. 138 CPP and arises from the questioned pieces themselves; it should be clarified that the mere circumstance that the witness Perrone had not appeared to give a statement on the date set for the trial hearing and that he had not been summoned during the investigation, does not authorize inferring that his existence is the product of the creation of the person who drew up the minutes, as the defence does; especially if one takes into account that the other procedural witness, Gaite, stated that there was also another person who acted as a witness and that according to the service of notice recorded on pages 387, the summons was received personally by Perrone, at the address reported by him.
Consequently, it can be stated that what was narrated by Gaite, the records of the aforementioned minutes, and the proven existence of Perrone - despite his non-appearance in these courts - allow us to infer that the procedure was carried out in the presence of two witnesses, as required by our procedural system, lacking any basis for what was requested.
On the other hand, it should be noted that the articulated nullity has a relative character and is therefore untimely (CNCP Sala III, «Guillen Brizuela, Gregorio s/rec. de compra, rta. 15/3/95, reg. 33/95), since the deed of seizure is not an element of a sacramental nature, but rather one more piece of evidence that must be assessed in accordance with the other means of acquisition (CNCP Sala III «Montenegro, Celso s/rec. de casación», rta. 22/12/95, reg. 494/95).
Likewise, and from another angle, it should be clarified that the invalidity requested is also not admissible, since for an act to be covered by said sanction it must have violated a constitutional right, causing actual harm, which implies proving the specific harm that the alleged procedural defect could have caused and demonstrating how it would have influenced the specific case if that defect had not existed.
In this regard, it has been held that "if the allegations that the defendant would have refrained from exercising or the evidence that he would have proposed in those questioned acts if they did not exhibit the alleged defect that motivates the questioning have not been specifically indicated, the demonstration of what the affectation to the defense guarantee would be has not been assumed, nor is the usefulness of the invalidation sought or decreed seen (National Chamber of Criminal Cassation, Chamber I, case 186 "Terramagna, Juan I s/rec. de casación", rta. 25/8/94, case n? 102 "Aguilera, Oscar S., s/ rec. de casación, rta. 23/3/93 and CSJN Fallos 287:230; 297:291; 300:353; 301:969; 302:179; 303:359; 303:1497 and 1626; 305:1140; 306:149 and 281; 307:1131, among others, cited there).
Based on this, and since the declaration of nullity for the sake of nullity itself is clearly inappropriate, the claim made must be rejected.
PROVEN FACTS AND LEGAL QUALIFICATION:
Once the nullities raised have been resolved, it is time to address the examination of the materiality of the fact.
The elements of judgment previously stated, assessed according to the rules of sound criticism, as provided for in art. 398 of the CPPN, allow the Court to consider as conclusively proven:
a) that personnel from the Criminal Analysis Department of the Argentine Federal Police, through Principal Salvador LLorca, went to the address at 15 Anchorena Street in this Federal Capital on April 1996, 93, which they proceeded to search in accordance with the order issued by the Examining Magistrate;
b) On that occasion, copies of import dispatches Nos. 9545/92 and 9545/93 were seized, which turned out to be apocryphal, and by means of which the import of a total of one hundred and eighty "Honda" brand motorcycles was attempted to be protected;
c) Likewise, a box containing electronic elements was seized, which are detailed, appraised and valued on page 253;
d) subsequently, no documentation was submitted - customs clearance and invoices - that could be suitable to prove the legitimate introduction into the market of all the effects detailed on page 253, or the eventual introduction into the market of the motorcycles in question, the existence of which is also not proven.
e) that the merchandise listed on page 253 had been illegally brought into the plaza and subsequently received by Park from a third party.
Once the description of the facts has been made, it is necessary to carry out a separate analysis of each of them in particular.
GOODS CONSIGNED IN THE LOT RECORD ON FS. 253:
The Public Prosecutor's Office, in its argument during the debate, accused Park of being the author of the crime of smuggling provided for in art. 864, paragraph a) of the CA, assessing in its opinion the evidence that supports such a request.
In this regard, in agreement with the Prosecutor, the Court considers that in the present case the smuggling of the goods has been proven, given the nature, quantity and quality of the seized objects, which is added to the lack of stamps and supporting documentation of the same and of any material sign that proves the intervention of the customs authority. However, it cannot be stated with the degree of certainty that this procedural stage requires, the intervention of Park in the same. In fact, at the first opportunity that the named person made a statement, he said that the merchandise had been sent to him as samples from Korea. However, during the debate he explained that such statements were due to the fact that he did not want to compromise the person who gave them to him - Chin Yong Kim -, but that in truth he had them in his possession in order to be able to sell them at his request. Likewise, the witness Kum, Kim's wife, supported these statements by stating that she had delivered said merchandise at her husband's request.
This creates a reasonable situation of doubt regarding the involvement of the accused in the entry of the questioned merchandise into the country, removing it from the control that the customs service must exercise, which, pursuant to Article 3 of the CPP, must be interpreted to its benefit.
However, the evidence cited above, assessed in the manner expressed at the beginning of this consideration, proves the meeting of the objective elements of the crime of concealing smuggling, a criminal figure that requires the existence of the prior crime of smuggling - which is proven here - even when it is not necessary to identify its authors.
Thus, the goods were seized following the search ordered by the investigating judge at the address at 93 Anchorena Street in this city, property of the accused, as shown in the search report on pages 122/3 of Annex I, incorporated by reading into the debate, which gives an account of both the seizure carried out, due to the lack of presentation of supporting documentation - a circumstance that has not been carried out up to now - and the circumstances of time, manner and place in which it was carried out; a fact that is also confirmed by the witness Gaite, who witnessed the discovery, inside a room of the aforementioned address, of a box with the diodes and integrated systems.
Likewise, the batch record on page 253 shows the foreign origin of the merchandise, as well as the large number of diodes and integrated circuits and their market value. This information is confirmed by the inspector Magdalena, who, when testifying during the debate, stated that he had the merchandise in sight, that it was new merchandise and that due to its quantity they were not samples.
Finally, Park stated during the debate that the merchandise was received for the purpose of selling it, which was consistent with the statements of witness Kum, who admitted having delivered it to Park at her husband's request.
The above allows us to conclude that the fact that the Court considers fully proven, as already stated, fits the figure of the crime of concealment of smuggling, provided for in article 874, section 1, subsection d) of the Customs Code, since Park had, at his home at 93 Anchorena Street, merchandise of foreign origin, as reported in the report on fs. 253, which due to its homogeneous quantity and quality and because it did not have the documentation to support its legal introduction into the market, should be presumed to be contraband, and that said possession evidently originated from its previous receipt.
This is a conclusion based on the principle of sound criticism that allows the evaluation of the evidence obtained without being subject to pre-established standards, but respecting those that result from logical reasoning and the correct interpretation of the proven facts in accordance with experience, all of which has been taken into account on this occasion to arrive at the certainty already referred to.
AUTHORSHIP AND RESPONSIBILITY:
From an analysis of the evidence provided above, it can be stated that the defendant voluntarily intervened in the receipt and possession of foreign merchandise that was the object of the crime. Indeed, this arises from the statements made by the defendant when he made his statement during the trial, when he stated that the merchandise was handed over by the witness Kum, at the request of her husband "Chin Yong Kim" for Park to sell, as well as from the minutes on pages 122/3 and Gaite's supporting testimony, regarding the discovery of the merchandise at Park's home.
It can also be argued that, given the circumstances, Park should have presumed that the merchandise came from the commission of a prior smuggling crime.
Indeed, when giving his statement under investigation, the accused stated that Kum did not provide him with any supporting documentation for the merchandise, nor with an invoice proving the purchase and sale transaction. This makes it impossible to presume good faith on his part in said possession, especially if one takes into account his status as an experienced merchant, which prevents us from considering as true what he stated regarding the fact that he was given samples of the diodes, since it is not credible given the quantity of merchandise of the same type that was seized from him, which is evidenced in the aforementioned batch report.
It should also be noted that the accused himself stated that he was not given the documentation because he was ultimately unable to sell the merchandise; a circumstance that shows that he knew he had to have it as the only and irreplaceable way to prove legitimate ownership and entry into the market and thus be able to display it to potential buyers.
In this regard, the Supreme Court of Justice of the Nation has ruled that the failure of the defendant to prove legitimate possession of the items seized from him constitutes a presumption of the existence of concealment of smuggling in which he incurred, based on the fact that such possession of a significant amount of cartons of cigarettes does not appear to be justified with documentation suitable for this purpose (Conf. Fallos 277:744; 254:301).
In short, the explanations given by the accused when making his statement are not supported by the evidence included in the case, since both the existence of the merchandise at his home and the absence of customs documentation supporting it, the requirement of which could not be ignored given his status as a merchant, allow us to affirm that Park possessed merchandise that must be presumed to have been contraband. And in turn, this action was voluntary, which allows us to affirm that he had control over the act consisting of the possession of the merchandise.
For all these reasons, it can be stated that there was at least eventual fraud in Park's actions, since he was aware of the external circumstances of the event and, considering the illegal origin of the goods to be possible, this circumstance was indifferent to him and, in any case, despite this, he had the goods in question. In this sense, the doubt about the origin of the things is sufficient to configure the subjective aspect of the type in question.
In summary, this Court considers that Park is criminally responsible for the act for which he was accused, according to the qualification expressed above; therefore, the criminal charge for the conduct described as the author can be made (art. 45 of the Criminal Code), since the subjective aspect of the type under study has been proven.
EXTRACTION OF TESTIMONIES:
That in light of the statements made by Park and the witness Kuon Ho Kum during the trial hearing, regarding the ownership of the goods detailed on page 253, it is appropriate to extract relevant testimonies in order to investigate the alleged commission of the crime of smuggling by Chin Yong Kim, which must be sent to the Honorable Court of Justice in order for it to draw the lots for the Court that is to intervene.
MERCHANDISE CONSIGNED IN IMPORT OFFICES NOS. 9545/92 AND 9545/93.
The situation is different with regard to motorcycles referred to in the import clearances already mentioned.
It should be noted that, in agreement with the opinion expressed by the Public Prosecutor's Office during the arguments, the Court is of the opinion that the criminal act related to the attempted importation of the motorcycles listed in the import clearances in question has not been proven.
This is so because it has not been possible to determine, firstly, whether the dispatches were presented to the customs service to implement the entry of the motorcycles and secondly, neither has it been possible to determine the very existence of the same.
In this regard, we cannot ignore the report on page 9 of customs file no. 572.805/96, which shows that the import dispatches do not correspond to the ANA registry in Buenos Aires, since in 1992 the numbering began with number 50.000 and only "dwarf" numbers from 1 to 823 were recorded, and in 1993 the numbering began with 10.000 and no "dwarf" numbers were recorded.
Nor does the report on fs. 220, which states that the name of the vessel stated in the dispatches did not enter the port of Buenos Aires in December 1992, and that the persons identified there as dispatchers do not appear as such in the ANA records; that the OM 680-A forms attached to the dispatches are incomplete and that on the top cover sheet, the date and payment receipt number are not specified and the corresponding payment stamp of the Banco Nación is not recorded, which is why they would have been rejected upon presentation if they had been presented.
On the other hand, we cannot fail to highlight what was stated by witness Naon when she confirmed what was reported on pages 220 and stated during the debate that the processing of the dispatches of the cars did not enter the ANA of Buenos Aires, adding that if they had been presented otherwise, they would have been detained, since the data is not complete.
Finally, Park, when giving his statement during the trial - as in his previous statements made in the investigation - denied having imported the motorcycles and stated that the shipments were transferred to him by a dispatcher named "Vetel" - who later died - that he never had the originals in his possession, that he only signed them, but since he did not pay the total of the operation he only gave him the copies; that with these copies he found out at ANA that the container with the motorcycles did not exist and added that he never presented them to ANA.
Therefore, although import dispatches 9545/92 and 9545/93 were seized from the address at 93 Anchorena Street in this city, owned by Park, the conditions in which they were found, the impossibility of the ANA processing them due to their serious deficiencies if they had been presented, and the non-existence of the motorcycles in question, allow the Court to note that the incriminated dispatches were not presented to the control body.
For the reasons set forth above, and given the lack of certainty regarding the objective aspects of the charge, since it has not been proven that the documents found at Park's home, necessary to complete customs import operations, were presented to document the entry of the motorcycles, which have not been seized either, nor is there any evidence regarding their actual entry into the country, creating a situation of doubt in the case which, by application of art. 3 of the CPP, must be interpreted in favor of the accused, given the presumption of innocence that protects him - art. 18 CN -; making it necessary to adopt a remissory decision.
This is a conclusion also based on the principle of sound criticism, as authorized by article 398 of the CPP, as already stated in previous paragraphs.
In light of the above and sharing in full the request for acquittal made by the Public Prosecutor, the analysis regarding whether or not it is possible for the Court to issue a guilty verdict through a request for acquittal by the Trial Prosecutor and the reference to the doctrine of the "Tarifeño" ruling cited by the defense becomes abstract.
In this regard, Dr. Susana Pellet Lastra stated that, without prejudice to fully agreeing with the grounds provided in the preceding paragraphs, as well as those formulated by the Trial Prosecutor in order to arrive at the acquittal solution, with respect to the importation of motorcycles already referenced, according to the doctrine established by the Supreme Court of Justice of the Nation, it is not possible to issue a guilty verdict without a prosecution accusation (Conf. doctrine "in re" "Tarifeño, Francisco s/ concealment in ideal contest with abuse of authority", rta. on 18/12/89, 209.XXII), since it would imply a violation of the constitutional guarantees of defense in court and due process of law, enshrined in art. 18 of the National Constitution, insofar as it requires observance of the substantial forms of the trial relating to the accusation, defense, evidence and sentence issued by the natural judges. The Criminal Cassation Court has ruled along the same lines, in accordance with the doctrine emerging from the rulings «García, José s/psa fraud and use of false documents in ideal competition s/ cassation», rta. on 22/12/94, G.91.XXVII; C.408.XXXI «Catonar, Julio s/dishonest abuse, rta. on 13/6/95; B.352.XXXI «Bensadón, Germán s/ infr. art. 34 inc. d) law 20.974 and art. 293 pursuant to art. 292 2nd part of the CP», rta. on 19/8/95; S.172.XXVIII, «Saucedo, Elizabeth and another s/cover-up of smuggling», rta. on 12/9/95 and F.164.XXVIII, “Ferreyra, Julio s/rec. of cassation”, rta. on 20/10/95″.
Consequently, he considered that it is therefore imperative to resolve in the remission manner requested by the Trial Prosecutor.
SENTENCE GRADUATING:
For the purposes of determining the quantitative penalty to be imposed on Park, the personality of the accused, his attitude before and after the incident, the nature of the incident, the impression formed by the undersigned regarding the accused at the trial hearing, which does not have a criminal record (see pages 277, 299 and 348) and other measurement guidelines provided for in arts. 40 and 41 of the Penal Code, are taken into account.
Likewise, these references just made are sufficient support to reach the conclusion that the custodial sentence must be applied in suspense, since the inconvenience of its effective application is evident (art. 26 of the Penal Code).
For all the above, in accordance with arts. 396, 399, 402 and 403 of the Criminal Procedure Code of the Nation, this Oral Court,
FAILURE:
I. REJECTING the nullities filed by the defense of the accused WOO UNG PARK, with respect to the wiretapping that gave rise to these proceedings, the arrest report on pages 121 and the seizure report on pages 122/3 of Annex I of Case No. 18.986, and all actions taken as a result thereof, due to the absence of any defect;
II. SENTENCEING WOO UNG PARK, whose personal details appear on page 78, as criminally responsible for the crime of concealing smuggling, with respect to the merchandise corresponding to record-batch no. 338/96, whose verification and appraisal appear on page 253, to the following penalties: a) ONE YEAR SUSPENDED PRISON; b) LOSS of any concessions, special regimes, privileges and prerogatives he may enjoy; c) SPECIAL DISQUALIFICATION FOR TWO YEARS from engaging in commerce; d) ABSOLUTE DISQUALIFICATION FOR TWO YEARS from serving as a public official or employee; e) PERPETUAL SPECIAL DISQUALIFICATION from serving as a member of the security forces (arts. 26, 40, 4, 45 of the Penal Code; arts. 874 par. 1 inc. "d", 876 and 1026 of the Customs Code);
III. ACQUITTING the named PARK OF GUILT AND CHARGE, with respect to the charge of the crime of smuggling, in relation to the importation of one hundred and eighty motorcycles, which was formulated against him in the fiscal request for referral to trial (arts. 863, 865 inc. "d" and 292 of the Penal Code);
IV. IMPOSING THE COSTS OF THE PROCEEDINGS on the convicted person, taking into account the outcome of the trial (arts. 530 et seq. of the CPPN and art. 29 of the Criminal Code);
V. TAKING INTO ACCOUNT the reservations regarding appeal in cassation and the federal case raised by the defense of the convicted person;
VI. ORDERING that certified copies of the minutes of the trial, the verdict and this judgment be forwarded to the Honorable Chamber of the Jurisdiction so that the Economic Criminal Court that must intervene in the alleged commission of the crime of smuggling with respect to Chin Yong Kim may be selected;
VII. REGULATING the fees of Dr. Eugenio L. Kollmann, defense attorney for the accused until his resignation on page 340, in the sum of one thousand five hundred pesos ($1.500) for his performance in this process, as well as those of the expert translator Moo Hong Hyon, in the sum of two thousand pesos ($2.000), (articles 1, 6, 8, 10, 37 and 45 of Law 21.839 and articles 28 et seq. of Law 20.305, respectively);
Register, notify and, once agreed, communicate to whom it may concern, comply, replace the seal of action, gloss over the incident that is running on the line and date, ARCHIVE.-
