Principle of opportunity in economic crimes and changes in the smuggling regime

Summary

I. Extinction of criminal action
II. Conciliation and comprehensive reparation as a cause
III. The crime of smuggling: general and specific aspects
IV. conclusions

I.- The availability of the action within the framework of art. 59 inc.6 of the Penal Code

Article 59, paragraph 6 of the CP establishes the right of the accused to extinguish the respective criminal action by conciliation and/or full reparation of the damage and, as a legally recognized right, is directly operative even though it is not regulated.

For this reason, the legislator explains the reasons for including it in the general part of the Penal Code. From the presentation by then-Senator Juan Manuel Urtubey, the reporting member for the draft reform of the aforementioned Article 59 under analysis, it is clear that:

"Argentine provinces created their own codes and began to admit that prosecutors could set aside action when situations of reparation, conciliation or the principle of opportunity occurred. What did we do? To settle this discussion and turn it into almost a cabinet matter, we said: let's put this possibility of extinction of the action in the Penal Code, so that it is clearly stated in the Penal Code sanctioned for the whole country, as a substantive code, that this possibility of disposing of the action exists concretely.”

In this understanding, “the provision of the new paragraph 6 of Article 59 of the Criminal Code is currently operative, notwithstanding the lack of a regulatory procedural formulation. This situation means that, although the legal mechanism will be used, the lack of regulation would entail some “gray areas” that will be clarified as jurisprudential precedents emerge, giving final form to the mechanism.

The first point to emphasize is that, in theory, there are no conditions attached to the application of the grounds for termination as legislated due to a lack of procedural regulations. This is because it now constitutes a new component that is part of the broad concept of Article 18 of the National Constitution. In matters of smuggling, this categorical statement faces serious challenges in the current regulatory framework.

The issue is aimed at defining the final forms so that the studied institute translates into the formation of a fairer process and that, in turn, responds to the aspirations for efficiency demanded by society.

The requirement to prosecute absolutely all crimes committed, included in criminal procedure codes, is an idea that is losing strength and giving way to alternative dispute resolution methods and the "principle of opportunity" regarding the disposition of criminal action.

When discussing the principle of opportunity, we refer to the "power" that the bodies responsible for promoting criminal prosecution possess. Based on various reasons of criminal and procedural policy, they may decide not to initiate legal action, provisionally suspend an action already initiated, limit its objective or subjective scope, or terminate it.

It remains to be established what role the plaintiff plays, as part of the procedural relationship, insofar as it opposes this form of disposition, and what the procedural consequences will be of the position that the plaintiff may adopt.

I understand that all of this is in the very genesis of judicial doctrine.

Adopting alternative dispute resolution methods for criminal cases (e.g., mediation or conciliation) offers two advantages: first, it positions the criminal conflict as a dispute between two individuals (victim and perpetrator) that can be redirected; and second, it reduces the harmful effects of penalties, especially those involving imprisonment. Finally, it provides the victim with an alternative for obtaining redress for the harm suffered as a result of the crime.

II. Conciliation and comprehensive reparation as a cause

Regarding the crime of smuggling, in this case the plaintiff is ARCA, as part of the Argentine State, and the crime is multifaceted. However, these circumstances do not preclude, in a preliminary manner, the possibility that these punishable acts, in some specific cases, may be addressed through alternative solutions or other methods of conflict resolution.

Regarding the range of "crimes" for which it would be possible to extinguish criminal proceedings through "full reparation of damages and/or conciliation," there are already several precedents that support this solution for economic crimes, including smuggling. In this respect, ARCA's internal regulations have progressed, modifying a previously rigid stance.

Having established the foregoing, it is now necessary to clarify the possibility of using the "conciliation" and/or "full reparation of damages" methods as an alternative or joint approach. This raises the following questions: Can an action be extinguished solely through conciliation and without full reparation of damages in cases of smuggling? It would seem not.

Some authors explain that a synonymy could not be invoked, because they are two very different things: one is a mutual agreement, obviously bilateral, between the accused and the alleged victim/prosecution that puts an end to their confrontation, and the other is the unilateral fulfillment of the services included in the obligation to satisfactorily compensate all (“comprehensive”) the consequences unduly produced by the unlawful act.

I understand that there is no legal and/or logical obstacle that prevents the use of both methodologies even jointly, but that, in matters of smuggling, any equation that seeks extinction must contemplate reparation.

However, conciliation obviously requires the participation of concurring wills that generate a sufficient agreement. Consequently, and inevitably, the question arises: whose wills must constitute the conciliation, and what happens in their absence?

Therefore, the victim (by objecting) can challenge the Public Prosecutor's decisions to initiate or not initiate criminal proceedings, and vice versa. They can even request a review of these decisions, which can be done before the court. However, it appears that the current system prevents the complainant from initiating criminal proceedings independently, and this directly impacts the substantive definitions here.

The impact occurs when the judge or court assesses the merits of the defendant's request related to the extinction of the action and/or the presentation of any agreement with the Public Ministry.

Can the magistrate define the amount and form of compensation over the will of the victim —ARCA-DGA— in order to extinguish the exercise of the criminal action?

Given the grounds for extinction based on a formula of comprehensive reparation, it could be understood that only the will of the prosecutor would be necessary, along with the proposal of the accused.

Regardless of any operational variables, it appears to be legally sound that, in relation to the foregoing, only the endorsement of the presiding judge declaring the action extinguished is sufficient, naturally with all the possibilities of appeal to which all parties are entitled. Thus, the judge, faced with the defendant's proposal, could disregard the wishes of the Public Prosecutor and the victim, one, the other, or both.

For obvious reasons, the same does not apply in the case of conciliation.

In summary: the system established by Article 59 of the Criminal Code, in general terms, indicates that "reparation" can exist without "conciliation" and vice versa. This is only in conceptual terms, because in the context of smuggling offenses, "conciliation" without full reparation would fall outside the purview or capabilities of any public official of the General Directorate of Customs involved in the matter, and this would be an impossible situation.

III. The crime of smuggling: general and specific aspects

In practice, and in relation to the crime of smuggling, the principle of reasonableness prevents these grounds for the extinction of criminal action without adequately examining the relationship of the facts and the related aspects:

a) the seriousness of the matter due to the action taken;

b) the dangerousness evidenced by the alleged perpetrators;

c) the amounts of taxes to be applied —which is independent of criminal liability or not—;

d) the expected fines and their amount according to the market value of the merchandise;

e) the type of merchandise involved and the possibility of reversing its legal status or condition;

f) comparison with the system of prohibitions of the Customs Code.

In short, if there is a reasonable equation for full reparation, despite the lack of agreement or consent from the Public Prosecutor's Office, this cause for exclusion of punishability could —in principle— proceed.

Furthermore, it cannot be overlooked that, as a reference for the origin of the conciliation institute, the new Criminal Procedure Code requires that it deals with property crimes that are not very violent and imprudent acts without very serious or irreversible damage (CPPF, art. 34), but, for the cancellation of punishability by "full reparation of the damage", on the other hand, nothing is regulated.

This reveals the merits and properties of the restorative justice process as one of the two dimensions of any democratic criminal process. In other words, it is founded on the system of guarantees and the principle of last resort in the application of penalties. This is why "the so-called full reparation of damages" is considered a functional equivalent to punishment.

It is essential to carefully and precisely consider, with the highest possible level of effectiveness, what the most reasonable and appropriate format and means will be for the alternative resolution of these conflicts, or, in other words, the most appropriate criminal response so that the institution of extinguishing the action through conciliation or reparation results in concrete progress in accordance with the legislator's design. This reference is made in advance because, as can be seen, the Criminal Code contains a formula that grants the accused a series of options that differ from those provided by the procedural codes and the internal regulations of the ARCA-DGA.

It will be necessary to conceptualize all the elements that could make up the usual circumstances of the case.

And, beyond the considerations for and against, both procedural and substantive, one cannot fail to consider the potential of this figure to decompress and obtain better results based on criminal policy reasons, with substantial savings of the resources required by the justice system.

For these grounds for extinguishing criminal liability to fulfill their function properly, they must, like punishment, address the crime in its factual dimension—as an infringement of a protected interest—and in its communicative dimension, that is, as a violation of the rule of law. In this respect, those who decide on their application have discretion to structure the process in the manner and form that best meets the required standards.

In relation to this, the position adopted by the AFIP through the modification of AFIP Provision No. 318 (AFIP) of September 19, 2019, is presented, which establishes the procedural guidelines in tax, customs and social security resource criminal matters for internal areas, with the objective of optimizing the effectiveness of tasks in the administrative and judicial field.

That, in this sense, the rule in question constitutes a mandate on guidelines for action and a set of mechanisms that, ultimately, allow the decompression of the criminal justice system, reinforcing the participation of the victim in the process and allowing the resolution of less serious cases through alternative means.

A first and important definition is that the issues covered by the institute are limited to cases of "lesser severity", and it must be established later what range they cover and what they are.

The alternative means of extinguishing the action are adopted directly and without doubt, together with the constitutional principles of proportionality, reasonableness and last resort, as well as the guidelines on alternative conflict resolution contained in both national and international instruments.

These principles and concepts mentioned above should guide, from now on, all decisions made in this regard, both in judicial and administrative proceedings, and the legal frameworks of the situations that arise.

Having established this, two very clear guidelines are drawn up.

First guidelineThe harm to the protected legal right must be of a patrimonial nature.

This is explained by the fact that the crime of smuggling not only violates customs control—as a protected legal right—but can also violate public safety, national defense, public health, health policy, environmental preservation, and pollution prevention, among others. In these cases, of course, the possibility of applying the legal mechanism would be prohibited.

The amendment specifically provides: ARTICLE 1°.- Amend Provision No. 318 (AFIP) of September 19, 2019, in the manner indicated below:

a) Replace Section 3.3 of Chapter III of Title II of the Annex with the following:

“3.3. Opposition to full reparation of damageWhen the application of the institute is sought'full reparation of the damage', the opposition to the latter must be formulated through the official designated by the Federal Public Revenue Administration to represent it in its capacity as the injured party, with the scope provided for in subsection h) of Section 2.1 of Chapter IV of this title'.

COMMENTARY: The mandate is categorical in that it does not contemplate conciliation, and when full reparation for damages is sought within the framework of a legal process, the instruction is to oppose it. The issue is less clear regarding cases in which ARCA has not appeared as a plaintiff. Notwithstanding this absence, given that it is a matter of public order, the agency must be notified sufficiently in advance to allow it to exercise its respective rights.

The provision continues:

b) Replace subparagraph h) of Section 2.1 of Chapter IV of Title II of the Annex, with the following:

"h) To oppose the application of the principle of full reparation for damages -paragraph 6) of article 59 of the CP-.”

However, its application may be permitted in cases of crimes provided for in the Customs Code -Law No. 22.415 and its amendments-, when the damage to the protected legal interest is of a patrimonial nature., provided that it does not concern the cases of articles 865 subsections b), c), d), g) and h); 866 and 867 of said Code, and there is unanimous agreement of the parties to the process. For this purpose, the corresponding authorization to consent to the institution's admissibility must be requested, adequately justifying its reasonableness.

COMMENTARY: Here, the exception to the preceding rule of systematic opposition is highlighted, which shifts to the selection of cases in which the impact on the legal good is of a patrimonial nature.

Obviously, there will always be a financial impact on the legal asset, since the concept of smuggling includes merchandise, taxes, and the exercise of oversight with the entry and exit of the customs territory; however, it will not always be clear when it will only be that.

Therefore, given that it is a multi-offense offense, it must also be established whether other legally protected interests may have been affected. This will bring into play the aforementioned discretion of the decision-maker.

Second guideline. The existence of “a unanimous agreement of the parties to the process” obviously refers to the Public Prosecutor and the accused.

Here a paradox arises in which the tenor of the agreement presented by third parties affects the interests of this party in the process (the plaintiff – victim – offended party), and on which there are two optional paths: opposition or consent, but never silence.

In the event of opposition, all available legal avenues must be pursued to overturn the situation or request exemption from such a mandate. In the event of consent, this implies a will that must be sufficiently reasonable.

Determining whether an agreement or a reparation formula is reasonable is a difficult question for the decision-maker, given the lack of concrete parameters for comparison. In cases of smuggling, it is impractical for the Public Prosecutor's Office to determine, together with the accused, the amount and degree of reparation or the manner and/or scope of restoring things to their previous state without the involvement of the Customs Authority.

In the event of silence regarding an agreement, the matter would be implicitly consented to, when it should be express and categorical.

Continuing the authorization process, it will be governed by the guidelines provided in point 2 of Section III of General Instruction No. 2 (AFIP) of April 18, 2017, its amendments and supplementary provisions.

COMMENT: To do this, the official in charge must raise the matter for consultation —with the proposal of the accused or the Prosecutor— to the administrative superior of the agency with the functions for this.

Prior to the court hearings to discuss and eventually approve the grounds for exemption from the action, the DGA official must already have sufficient instructions or, if applicable, request an interim period for this purpose, so that the procedural position of the agency is either consent or opposition.

As mentioned, the comprehensive reparation referred to in Article 59, paragraph 6 of the Criminal Code should be understood as fundamentally comprised of restoring things to the state they were in prior to the alleged crime. This would include financial compensation for damages (which implies the task of quantifying them), payment of court costs, determination of taxes, and any potential resolution related to the legal status of the imported or exported goods with respect to prohibited regimes.

The application of fines as an equation mechanism in the reparation formula deserves a separate chapter.

To clarify this, the Federal Court of Mar del Plata has established the application of administrative fines by Customs as a means of compensating for damages. Therefore, the nature of these fines must be determined in the future, as they are linked to the accessory penalties established in Article 876, sections a) and c) of the Customs Code, which, due to the extinction of criminal proceedings, are not applicable, but are in fact established as a means of redress.

IV. conclusions

The evolution of this institution and the expanding trend in the application of these grounds for the extinction of criminal action are absolutely auspicious, in the sense that they will substantially improve the concrete results of jurisdictional activity.

Regarding the crime of smuggling, ARCA-DGA has taken a very important step that puts into practice all the principles that guide the application of the principle of opportunity and the comprehensive reparation of damages, with a view to obtaining better results.

An interpretation consistent with the application of section 6 of article 59 of the CP directly implies recognizing its validity in a manner consistent with the principle of substantive legality provided for in article 18 of the CN and its operability in accordance with article 5 of the CN