Within the customs regulations, we find various responsibilities deriveds, that is, those acquired not by the actions of the accused, but by those committed by other people, but that by virtue of those, they must be assumed by different peopleIn any case and by virtue of the original constitutional principles, in order to assume these responsibilities, the persons to whom they are to be charged must in any case be called to intervene in the corresponding summary, in order to be forced to answer for the acts of others.
On the other hand, it is also an essential principle to take into account that in all cases, the liability will be exclusively economic for the fines that could be imposed, so that no other type of infraction liability will ever be attributed to the offender; as they will not be registered in the register of offenders; and this as long as the illegal action has not been committed by the person responsible for the economic derivative. We will analyze the following cases:
Cases
a) In principle, we have the Responsibility of the person who forces another to commit smuggling; and by virtue of this, in accordance with art. 876, subsections a) and c), directly with arts. 872 and 874, section 2, indirectly, and with some of the paragraphs of the aforementioned art. 876, by virtue of section 2, with respect to arts. 868 and 869, art. 886 orders that the penalties for smuggling, which arise from 876, shall be applied to all participants in the crime, including that person cited who has determined another to commit the crime.
Specifically, this application is extended to anyone who has determined another to commit the crime. This concept can include the instigator, but also anyone who has exerted physical or psychological pressure to achieve the execution; taking into account that the force must be irresistible, otherwise the perpetrator is responsible for his acts and commits them with malice, that is, he plans the act, organizes his actions, and carries out the actions to make them effective (“understanding the criminality of the act”).
On the other hand, the necessary accomplice is identified in this responsibility, as the one without whose cooperation or help the act in question cannot be committed. This legislation extends the application of the penalties to those identified; not only to the author of the smuggling, but also to his attempt or his concealment. In the first case, the same penalties are applied as for the completed act, taking into account the dangerousness of the crime. In this it differs from the principles of the Penal Code; since, from the combination of arts. 42 and 44 of the aforementioned
According to the regulations, it arises that whoever commits an attempt will be punished by reducing the penalty corresponding to the completed crime, from one third of the minimum to half of the maximum. As regards concealment, while for the present case the same penalty applies (art. 2, art. 874), in the case in the same way as in the Penal Code it is established as an autonomous crime, similar to smuggling, as arises from the cited article, but separate penalties are ordered for this crime, which do not resemble those corresponding to the concealed crime.
In this case, the concealer is classified as the one who, without any promise prior to the commission of the crime, helps the author to hide the merchandise that is the object of the illicit act, and the illicit act itself. Art. 277 of the Penal Code also classifies it as a separate crime, distinct from the principal one that is hidden, and with its own penalties. In this regard, the Statement of Reasons of the Code mentions: “Art. 886 puts an end to the equal treatment in terms of complicity that has long been in force in customs criminal legislation. Although such an equalization could be based on the difficulty of determining the degree of collaboration of the subjects involved in the crime of smuggling, it has been considered that the court can in many cases make such a distinction and that this is more equitable.
“Therefore, in the regulation in question, participation has been regulated on the basis of the rules of arts. 45 and 46 of the Criminal Code, thus maintaining its autonomy. It is also clear that the instigation of smuggling is not an autonomous crime, but a way of participating in it, as well as that it refers to private instigation. Public instigation falls within the provisions of art. 209 of the Criminal Code.”
b) Starting from the Responsibility of persons for their dependents, established in article 1753 of the Civil and Commercial Code, is applied in the case of customs article 887, to natural or ideal persons. Two clarifications arise: on the one hand, that the responsibility is reduced as we have already clarified, to the economic, as in the case of inc. c) of art. 876; and in the case of the non-apprehension of the merchandise that is the object of a crime, it is replaced by a fine equal to its value in the market (inc. a). Consequently, both the other penalties and the prison sentence will be applied personally to the author of the act. On the other hand, responsibility arises when the crime is committed in the exercise or on the occasion of his functions as an employee. The same derives consequently, from the fact that it is assumed that he was following orders from the principal when committing the illicit act.
Given that the Code mentions legal entities, these are identified in the indicated legislation, starting from art. 43 of the Penal Code, insofar as it orders that “legal entities are liable… for the damages caused by their employees”, while the liability imputed to natural persons will arise from the civil and commercial legislation, already cited.
Finally, it is not a personal responsibility, but rather one that is shared jointly with the direct perpetrator of the crime, meaning that one single sentence must be served by any of the obligated parties. This responsibility is different in the case where the employee is directly forced by his employer to commit a crime, since this employer receives the benefit of this, for which reason he will be directly responsible and will be subject to the same penalties as the perpetrator, in accordance with the terms of art. 886, section 1.
c) In the case of art. 888, it contemplates the rLiability of legal entities or individuals, that is, those companies or associations of natural persons, who contribute their capital and their work, in order to obtain common profit in commercial companies, or with another civil objective in associations, to which the law grants the possibility of requesting rights and exercising actions as if they were natural persons.
In these cases, the legal entity may have been convicted of committing the crime of smuggling, and in the specific case of an original fine (paragraph c, art. 876), or a substitute for confiscation (paragraph a). It may occur in the case that within the period ordered by art. 882, or even within the procedure of the tax enforcement trial, the fine is not paid. In this regard, the Code provides that those responsible for the legal entity: directors, administrators or unlimited partners, must be made 'economically responsible' for the fine.
said fine, since on the one hand, criminal liability will be assessed in due course in the judicial procedure and sanctions will be applied through the resulting sentence and, on the other hand, we must take into account that the assets of the legal entity are different from each of those responsible. This delegation will be made jointly with the legal entity, consequently, each of the subjects involved will be a debtor for the total, since it is a single debt.
For these purposes, both in the federal and administrative trials, which will be processed in parallel, a hearing must be held so that he can exercise his legitimate defense. In this regard, only those who can prove that they opposed the actions of the legal entity that led to this crime, or that at the time of the decision, they were not occupying the position from which the responsibility arises, will not be held responsible.
In this regard, when the lawsuit is filed, the Public Registry of Commerce or the Customs Registry must be required to report who the holders of these positions are, in relation to the time of the criminal act. Hence the importance of announcing changes in the directors of legal entities.
In this same sense, inc. g of art. 876 orders as a penalty for the commission of the crime of smuggling, special disqualification for a period to be regulated, to carry out import and export activities, extending it to directors, administrators and partners with unlimited liability, expressly to those who had an active decision in the act.
This application is also extended to the penalty of perpetual special disqualification for the company and its directors, to act as customs transport agents or on-board suppliers (paragraph f). Lastly, although it cannot be applied to the company due to the type of person involved, it is necessary to consider the imposition on the directors of a perpetual special disqualification to act as customs officials or employees, members of the security forces and customs brokers.
d) For its part, art. 889 contemplates the diplomatic immunity, universally adopted by our country through the Convention on the Prerogatives of Specialized Organs, issued by the United Nations General Assembly by Resolution 179 of 21/11/1947; the Vienna Convention on Diplomatic Relations and Immunities (18/04/1961); and the Convention on Consular Relations (24/04/1963), which came into force through decrees 7672/63 and 17.081/67.
All diplomatic and consular personnel and their cohabiting family members enjoy diplomatic immunity, which means they cannot be tried by the national courts of the country where they are accredited, as long as they do not renounce it, although they will be tried by the judges of their country, who must analyze the application of their internal laws.
In this case, the illegal acts will only be classified as customs violations, and only the penalties ordered by subsections a), b) and c) of art. 876 will be applied, that is, the confiscation of the merchandise, the means of transport and the instruments used in the commission of the illegal act, and the fine. In any case, in this case, by virtue of art. 100 of the National Constitution, this judgment is the exclusive jurisdiction of the Supreme Court of Justice of the Nation (current art. 116 of the same).
Another special incident to be taken into account refers to the inviolability of the person of the diplomat and his residence, in accordance with Article 30 of the Vienna Convention of 1961; this refers to the possibility of personal search and seizure of the home, and even of the automobile assigned to him, since this Convention has constitutional force, so national laws such as the Code of Criminal Procedure cannot be applied.
Regarding these facts, the person who must waive diplomatic immunity is the accrediting State, through its head, and, according to the investigation, it may occur that he does so. Consequently, once this is done, they may be judged exclusively by the aforementioned Court of our Nation. It remains to be indicated that this immunity applies to these indicated persons, since if others were involved, national legislation would apply.
Other liabilities arising
When we refer to other responsibilities, it happens that in addition to those imputable that will be derived from illegal acts, there will also be those that are taxable, Those that will arise either from the commission of taxable acts, or from the fines that will be applied for those illegal acts.Both responsibilities may arise from one's own actions or from the actions of others, in cases where the law so requires, so the accused will be tax-liable for the actions committed by third parties, and thus we call them derivatives.
Following the order of the codifier, the first liability for third parties that is stated is that of the freight forwarder and transport agent, by its general representatives, dependents and other employees, as provided for in arts. 48 and 65.
a) For these purposes we have to define the general attorneys, such as those in the terms of art. 75, and through a power of attorney that will be granted by the shipping agents and transport agents, so that they represent them before the customs service. It is assumed that they will not have labor dependency with those, but will work in an economically independent manner from the principal.
On the other hand, it is indicated to the dependents, that as such and in representation of the principal, art. 90 authorizes them to act on behalf of the aforementioned, but their essential difference with the previous ones is that they are employees of the principal; they depend on his salary. In any case, there are various combinations of remunerations that can be contracted between them. Both of them, for the purposes of their registration in the respective registers, must have the power or authorization of the corresponding assistants.
We come here to the cause of liability under study, since both of them act in 'customs operations', and under the orders of the principal. This is the consequence of the same, since in the case that it could be proven that the agents or employees acted on their own behalf, the responsibility of the principal will be declined and will be assumed by its direct author. The sanctions that may be applied to them, according to the aforementioned regulations: warning, suspension or elimination from the Registry, given that these are personal acts of the employees or agents even in the performance of their functions, understanding that these are penal sanctions, considering that they should be reviewed for their application. This is because we accept the pecuniary responsibility that the principal must have, as announced by the Civil and Commercial regulations, but this penal responsibility, with personal sanctions, seems illogical to us. The proposal is aimed at converting the personal action into a pecuniary one, and being able to apply the principle
of guilt in choosing.
Finally, we recall that it is possible that customs assistants may be subject to this sanction, and that they must be parties to this administrative summary, initiated against the employees or agents, in accordance with the terms of arts. 83 and 90. It goes without saying that in order to apply sanctions to the principal, it will be essential to grant them the right of legitimate defense (art. 18 CN).
b) In the case of the missing merchandise, at the time of unloading (art. 141 section 2), the obligation of payment of taxes arises from the transport agent, by the carrier. The justification of this obligation is based on the fact that in the case of an import destination, and the means of transport being in customs territory, it is considered that the goods entered the same, and if they are not in the transport, it is considered that they are in that customs territory, so they will be considered as definitively imported for consumption.
In this regard, arts. 142, 150, 157 and 164 in their section 2, order, according to the means of transport, that this shortage must be justified in relation to the merchandise declared in due time, with a letter of rectification, within the ordered days, which will be computed from the end of the unloading, regardless of the time that it took.
From the indicated period, and if the indicated rectification has not been submitted, or has not been duly justified to the consideration of the customs service, the period will be calculated as a full day, in accordance with article 6 of the Civil and Commercial Code, and within the business hours of each department, and the merchandise involved will be considered, as we have indicated, definitively imported.
As a consequence of the above, the tax obligation arises from this consideration of import. From this same, the person or persons responsible for its payment will arise, and in this case, they will be the carrier and its transport agent.
This provision, like other similar ones, is justified by the fact that the need for the Treasury to collect taxes arises, since this agent is a professional authorized to carry out his work for the institution, who, by virtue of section 1, paragraph f of article 61, may be suspended from its registry without further proceedings, until they pay the amount owed.
In addition, we must take into account that the carrier may be a foreign individual or legal entity, and consequently this credit would be in principle uncollectible, or markedly difficult to enforce, difficulties that are avoided by making the transport agent, with national domicile and registration, jointly liable. The solidarity invoked means that both are joint debtors for the total, and whichever of the two pays the debt, will release the other from this obligation. In cases where one of them pays a proportional part, they will still be the debtor for the difference.
It should be noted that the presumption of definitive import for consumption will be 'without admitting evidence to the contrary', by virtue of the fact that in section 1 a period of two days is granted to justify the shortage, with the stated rectification letter. Otherwise, in the event of a negative result, the consideration of such import can be made, with the tax obligation arising by virtue of art. 777.
c) It may happen that upon the arrival of the transport vehicle at the destination customs, The permanence on board the transported goods is requested in a timely manner, for a determined period of time. For these purposes, the request must be submitted within the time periods established by art. 185 (four days for water transport; at the time of submitting the declaration in the case of trucks or air transport; and within one day from the arrival by rail; or, where appropriate, prior to the departure of the means of transport, from that place of arrival if it were prior to the aforementioned).
At the time of unloading the merchandise in permanence, and if part of it is missing, similarly to the cases of direct unloading, it will be considered as definitively imported for consumption. From this situation, the obligation to pay the corresponding taxes as a penalty will arise, given its lack.
In the present case, the lack of justification is not authorized, so the direct application of the same will be possible, without admitting evidence to the contrary. In this regard, we consider that the application would not be possible without the legitimate defense of the accused. Consequently, it is possible to admit that the accused may offer his evidence, and based on the results of the same, convict or acquit of this consideration of definitive importance.
In similarity to the case previously described, the qualification is for tax purposes only, since if the merchandise is to be imported, the destination must be requested and the taxes must be paid for it, as soon as it is authorized. Ultimately, tax liability will arise, and it will be the responsibility of the carrier and the transport agent, the latter as a derivative liability, which is joint and several for both.
d) One of the customs import operations, this is a provisional warehouse (art. 198), until a definitive or even suspensive destination is requested. The entry of the merchandise will be made in the public or private customs warehouse, with the intervention of the customs service (art. 200). However, once the merchandise has been entered into the warehouse, with the aforementioned controls, when it is removed from the warehouse it cannot be missing, because if this were to occur and because it is already in customs territory, it will be considered imported for consumption, for which reason tax obligations will arise.
In this case, the owner of the warehouse, under whose custody the merchandise is located, is constituted as the principal responsible party. In addition, a subsidiary responsibility is ordered for those who have the right to dispose of it. This determined responsibility means that the execution begins against those identified. They can oppose the benefit of excussion, that is, it must be executed against the principal debtor: the depositary, and if he does not respond with his assets, it can only be executed against those mentioned. Thus, there is only one debt, of which several are obligated consecutively, and paying it.
any one of them frees the others.
In any case, although the depositary is the principal debtor, it will not be so if it proves that when entering the merchandise with packaging, when verifying the lack of said packaging, it is complete, and also maintains, where applicable, the same weight as when it entered the warehouse (art. 211, section 3).
e) The import transit destinations, are "those by virtue of which imported merchandise, which does not have free circulation in the customs territory, can be transported within it, from the customs office through which it arrived to another customs office to be subjected to another customs destination" (art. 296).
Article 312 establishes those responsible for this obligation, identifying the carrier and its agent as the principal debtor, jointly and severally; it also indicates, in a subsidiary manner, the shippers, that is, those who have entered the merchandise into the means of transport; also those who have the right to the merchandise in question; and finally, the beneficiaries of the regime, that is, those who are going to receive it. As a consequence of the above, these last subjects may oppose the benefit of foreclosure, and also require payment, prior to the execution of the first mentioned, and in the event of their insolvency. This becomes appropriate, given that the carrier is the possessor of the merchandise, and the transport agent has the liability derived from art. 780, originating from it.
It remains to be noted in these aspects that the lack of merchandise will be considered as such, once the period granted for transit has been fulfilled, and the period of one month after the indicated one has expired, said period being calculated in the terms of article 6 of the Civil and Commercial Code.
f) For the case of removed, this is the suspensive destination "by virtue of which merchandise of free circulation in the customs territory can leave it to be transported to another place within the same, with the intervention of the customs of departure and destination, without, during its journey, crossing or stopping in a land area subject to national sovereignty" (art. 396).
Unlike the previous case, it is an export of merchandise, but the destination for its removal from the territory has not yet been requested, moving from one internal customs office to another in our same territory, to be removed from the latter where the new destination will be requested. Similarly, the transfer period that was duly granted is calculated, and from its expiration one more month is computed, from which, if it does not arrive at the customs office of destination, it will be considered as definitively exported.
This is a question of national merchandise, with free circulation in the customs territory, but which is already affected by a customs clearance, and was also removed from the customs territory. Even in cases where it is carried out by national rivers of international navigation (art. 386, section 2), it is considered in a similar manner, because it could have been removed from the national territory.
Unlike the previously analyzed cases, the term fortuitous event or force majeure is accepted so that it is not considered as exported. This excuse must be formulated to the satisfaction of the customs service. In addition, the indicated fact must be reported immediately after it occurs, but must be duly verified. This may be done before the nearest authority, for verification.
In this case, and in accordance with art. 392, the carrier and its agent shall be considered as the principal debtor of the taxes, jointly and severally; in addition, and as subsidiary responsible, the shippers, those who have the right to the merchandise and the beneficiaries of the regime. All of them may present the benefit of exemption, which we have already discussed and which we refer to.
g) It arises from art. 780, the Derivative liability of the transport agent, on the tax obligations of transporters, jointly with them. Specifically, arts. 142, 150, 157, 167 and 190, order this same obligation, when the merchandise is imported, or is missing at the end of unloading, in each of the means of transport. This legislation, as we have mentioned, arises to ensure the credit of the Treasury, since this agent is authorized to work with the customs institution.
Although arts. 48 and 65 order liability for the actions of their agents, dependents or other employees, art. 781 extends it to all those who work with the customs service, and for the actions of their dependents. However, this liability is provided for on-board suppliers, repair technicians, laundries and other persons identified in art. 109, which is not exclusive and may be applied to any other worker, public or private person, who works under these conditions.
In this respect, liability arises in principle for any dependent who carries out a taxable act, 'in the exercise or on the occasion of his or her functions', that is, who carries out work in relation to the functions of such person, which he or she is required to commit and assuming that he or she complies with what is ordered by the person on whom he or she depends, the person who ordered the work will also be tax liable.
We must identify that the obligations to be fulfilled are tax-related, that is, exclusively those that arise from a taxable event; consequently, the person who commits the identified act will be personally responsible for criminal responsibilities for the commission of illegal acts, in addition to the other penalties to be applied.
Jorge Luis Tosi is a lawyer and holds a Master's degree in State Law. He was a career official at the General Directorate of Customs in Argentina..
