Although our Customs Code provides for the crime of smuggling, the penalties of imprisonment, fines, confiscation, disqualifications and loss of concessions, other legislations provide for various penalties, including banishment or expulsion from the country, and the prohibition of residence or prohibition of residing near the country's borders.
In the aspects indicated, Supreme Decree 408 H of the Republic of Peru, in its article 29, orders that “If those responsible for the crimes of smuggling and fraud of customs revenues are foreigners or Peruvians by naturalization, they will be sentenced to banishment from the country, after serving the sentence, and to the loss of the nationality granted.” This banishment means expulsion from the national territory, and will be applicable once the prison sentence imposed against them has been served.
This regulation of the Smuggling Law 16.185, already provided in its article 7 the banishment of foreigners, and the loss of citizenship, and in it the sanction is applied to the "authors, co-authors, accomplices and concealers", as long as they had the indicated conditions. The second paragraph of the cited article, provides that naturalized persons are entitled to this loss of citizenship, and also the banishment indicated above.
The Customs Criminal Statute of the Republic of Colombia, in its article 4, as an accessory penalty for conviction for smuggling, provides: “5. Expulsion from the national territory for foreigners”; and its article 5, regarding the duration of the penalty, provides: “Expulsion from the national territory is permanent.”
In the same sense as the legislation cited above, article 11 orders that “The expulsion from the national territory will be ordered in the sentence that condemns the foreigner to a prison sentence and will be executed once this sentence has been served.” Consequently, this expulsion does not start the serving of the prison sentence, replacing it, but will be applied after the serving of the sentence ordered.
In the case of Paraguay, its Decree Law 71/53, which defines the crime under study, in its article 26 provided that in the conviction for the same, “Foreigners with less than five years of residence in the country may be sentenced to the penalty of banishment, after serving the sentence or penitentiary”. For this reason, it determines an essential permanence for the application of banishment, as long as it will not be applicable, starting from the indicated period, since the other legislations do not provide for the same, always applying this sentence.
In the case of naturalized Paraguayan foreigners, Article 27 provides: “Naturalized foreigners, in addition to the loss of Paraguayan citizenship”; that is, they will be subject to the loss of citizenship, and jointly to banishment or expulsion from the national territory. In this legislation, Article 6 typified “smuggling gangs”, which are “the association of three or more persons, even if they are directors or employees of the same commercial firm, for the commission of the smuggling crimes provided for in this Decree Law, or when one of them is a public official or customs agent”.
We must point out that in our legislation, customs article 865, paragraph a) classifies the act in a similar way, as the commission of the same by three or more persons, although doctrinally it is not held as necessary the prior agreement of the commission of the illicit act, so consequently, it would not be an illicit association, as we will analyze; in any case, if such agreement exists, it does not decriminalize the crime.
These bands have the same typification as the Argentine Penal Code, regarding the crime of belonging to a group of three or more persons with the purpose of committing crimes, classified as an illicit association (article 210), which is punished not for the crime committed, as long as they have not committed any, but for the formation of the designated group with the indicated purpose, that is, committing crimes indiscriminately. In the case of the commission of any crime, they would be charged with the same and depending on the circumstances, the penalty may be increased for being committed in a gang, as for example in the case of robbery (article 166, paragraph 2).
According to the Paraguayan legislation cited, these companies may be formed "even if they are directors or employees of a commercial firm" to commit the crime under analysis; and in cases where the convicted person is a legal entity, in reality the will of the same to commit the crime was decided by its directors and even in combination with some employees. This legislation is what is missing in the national regulations, since these directors are the so-called "white-collar" ones, who never end up prosecuted, and dismantle the convicted company, forming a new one with the same objective of committing crimes sporadically or continuously. This does not prevent the crime from being classified, with the inclusion of the various regulations, according to the circumstances of the act committed.
In this regard and in the First Atlantic Congress on Tax Criminal Law and Customs Criminal Law, developed in the city of Mar del Plata in August 1998, was our proposal accepted by Congress, on the need to register these directors of convicted legal entities, for the purposes of preventing them from forming new companies to ultimately have illegal objects.
On the other hand, gangs were identified in Paraguayan regulations when they were formed by a public official. In this case, the crime is classified as such because that official may have the facilities that his job gives him to commit the crime, clarifying that an official of the corresponding hierarchy is not specifically designated to be such, but rather anyone who works in a dependent relationship in a Public Administration. On the other hand, the crime was classified as the intervention of a customs agent, and this occurs because in said regulations it was not necessary to register as an importer or exporter to commit the destinations, but the customs assistants are identified, who are registered by the institution, and their work is regulated by it. The classification occurs because these assistants are those who process the destination dispatches by order of others, and are in the vicinity and facilitation of the commission of possible illicit acts, in the international transfer of merchandise.
In these aspects, our legislation classifies smuggling, by the intervention of a public official or employee (paragraph b of article 865), to similar ones of the customs administration, and to the components of the security forces engaged in the repression of these crimes (paragraph c), although it is not classified because it was committed by a customs agent.
In the present case, Paraguayan legislation contained another penalty that is to be applied to members of smuggling gangs, which is the 'interdiction of residence', which consists of prohibiting its members from "living within fifty kilometres of international borders" (article 25 of Decree Law 71/53), for a maximum period of five years, after the conviction for these crimes is final. The purpose of this legislation was to remove these convicted persons from places where these crimes could be committed with greater assiduity. If it were applied in our country, it could occur, given its extension, to live, for example, in the Mediterranean provinces. In any case, the penalty of interdiction will be fulfilled after the completion of the prison or penitentiary sentence; and in the case of having been granted a conditional sentence, its fulfillment must be ordered once the judicial sentence is final.
In 2005, through the implementation of the Customs Code in Paraguay, by law 2.422/04, the crime of smuggling and its development are established in articles 336 to 341. In the aspects analyzed, the new regulations provide for the same the penalties of deprivation of liberty, with fine and confiscation of the merchandise involved, and of the means of transport used in the action. Article 337 typifies the collaboration of public officials or dispatchers, implicating them directly as main authors of the crime, incurring the corresponding penalties. For its part, article 338 typifies legal persons as possible responsible for this crime, when they are beneficiaries of the same or when their directors participate in said typical action.
The stories of foreign legislation that we have been doing are about proposals for the improvement of customs criminal legislation in our country, and with the aim of achieving greater prevention and repression of smuggling, which as an economic crime harms the national patrimony, and consequently the components of society. The above does not affect the application that the cited norms may have in the original countries, since the goodness or not of a legislation is not determined by the norm itself, but by the authorities that apply it, or its reception by the society that it is going to regulate.
By: Dr. Claudia Marinelli, Director of the Degree in International Trade, Faculty of Business Sciences, Open Interamerican University. Director of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice
Dr. Jorge TosiHonorary Director of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
Aduana News is the first Argentine customs newspaper to launch its digital version. With 20 years of experience, its publications and initiatives aim to provide the most relevant knowledge on customs issues in order to contribute to safe trade in the region.
