In recent weeks, there have been reports that customs has been paying special attention to cases of over-invoicing in imports and under-invoicing in exports, which are intended to obtain dollars at the official exchange rate and liquidate less foreign currency than is appropriate.
Within this context, almost every day there are publications in the press of complaints regarding the crime of aggravated smuggling and even the new Super Minister Sergio Massa, highlighted such complaints within his "economic plan" and added that he would also communicate them to "the United States anti-money laundering unit”, and then even advance a possible new amnesty for those who “rectify their position at Customs” in the record to be created.
Thus, cases of triangulation with traders who are believed to be based in the United States were reported, as well as operations in Free Trade Zones that do not require SIMI processing to make payments abroad, cases of entry of merchandise without real value, and questions were also raised regarding the exporter's lack of economic or operational capacity to carry out the documented operation.
Finally, within that same list, the modalities that were known in the media as “rentals of precautionary measures” appeared, which basically question the importer who had obtained a precautionary measure to document his imports and then would import branded products from a third party who had temporarily assigned it to him. This same risky trend seems to be seen in the recent requests under threat of suspension of the registry of importers/exporters, who would have requested precautionary measures to import merchandise to protect their stock.
The way in which such news is published seeks to convey a message that, while commendable (any illegal mechanism for currency flight must be questioned), when disseminated in the context of criminal complaints, runs the risk of generating the opposite effect.
It should be noted that if these complaints reach a court and then do not result in a sanction, popular skepticism surrounding the delicate task of administering justice increases.
In criminal matters, it is important not to risk hasty decisions, and even less so in customs criminal matters, where their complexity and technicality warrant greater caution.
It should not be forgotten that in order for the crime to reach the category of smuggling, all its constituent elements must be present.
Thus,
(a) Firstly, it is required that it be a maneuver that may affect the legal asset protected by the crime of smuggling, understood as the exercise of the main function entrusted to customs, that is, the control over the introduction, extraction and circulation of merchandise for the purposes of obtaining a correct collection of taxes, compliance with prohibitions and the due payment of export incentives.
That is to say, in order for the crime of smuggling to be imputed, the reported operation must affect the normal functioning of "customs control" linked to essential issues of customs activity (taxes, prohibitions and incentives) and not, as appears to be the case in the facts referred to, only purely exchange-related aspects.
In this regard, our Supreme Court stated several years ago through its leading case "Legumes" ([1]), that not all State benefits are protected in the same way.
Thus, the General Directorate of Customs is interested in the entry or exit of merchandise (import/export); the General Directorate of Taxation, the purchase and sale of merchandise; the Central Bank of the Argentine Republic, the purchase and sale of foreign currency; and the Financial Information Unit, the origin and destination of funds.
Taking this into account, the Court highlighted that attempting to include in the crime of smuggling, maneuvers that could only affect foreign exchange functions, generated a clear extension of the criminal type, violating the principle of legality recognized by our Constitution and International Treaties, even highlighting that they were functions protected by the Foreign Exchange Criminal Regime.
(b) Secondly, it must be a conduct that in its objective level exceeds the customs infringement scope provided for in the so-called "inaccurate declaration" provided for in article 954 of the Customs Code.
That is to say, the analysis carried out must start from the difference between customs over- or undervaluations in import or export matters and what truly punishes the crime of smuggling in question.
Thus, in order to avoid falling into a symbolic criminal law and to duly respect the constitutional guarantees at stake, it is essential that any action aimed at questioning the possible maneuvers detected respect the principle of legality.
[1] CSJN ruling L.119 XXII “Legumbres SA and others s/ smuggling”, with a note by Spolansky, Norberto “Smuggling, foreign currency and theft. Common aspects: the protected legal asset and the National Constitution", Law 1991-A, p. 73 et seq.
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.
