Case No. 42.023, Folio 167, order No. 17.796) J.3, S.6. – Room A.
// City of Buenos Aires, on the 23rd day of the month of September of one thousand nine hundred and ninety-nine, the Judges of Chamber "A" of the Honorable National Chamber of Appeals in Economic Criminal Matters of the Federal Capital, Drs. Edmundo Samuel Hendler, Nicanor MP Repetto and Roberto E. Hornos, met in Agreement to resolve the appeal filed against the judgment on pages 426/433 issued in case No. 42.023, folio No. 167 of the registry of this Court, entitled: "ROMERO, Sergio A. s/smuggling", established the following question to be resolved:
Is the appealed judgment in accordance with the law?
In response to the question raised, Mr. Chamber Judge Dr. Nicanor MP Repetto said:
1.- The present proceedings come to the attention of the Court by virtue of the appeal filed on pages 433 back by the Public Defender against the judgment on pages 426/433 which convicted Sergio Alejandro Romero as criminally responsible for the crime of attempted aggravated smuggling in conjunction with the commission of another crime (use of false documents, arts. 292, paragraph 20 and 296 of the Penal Code and arts. 865, paragraph 'f' and 871 of the Customs Code) and in accordance with the provisions of arts. 872 and 876 of the Customs Code, to the penalties indicated therein; with costs. Likewise, a single penalty was imposed, comprising the sentence issued in the present case and that issued in Case No. 152 of the Criminal Court No. 26, in the amount indicated therein.
II.- On pages 443/457, the official defense attorney's statement of grievances for Sergio A. Romero was incorporated into the file, where, based on the arguments invoked, he requests that the appealed sentence be revoked or, in the event of a conviction and given the time he spent in detention, that it be conditional.
III.- The examination of the records added to the file allows for a historical reconstruction of the facts on the basis of which the preliminary investigation was initiated and which culminated in the issuance of the judgment in question.
As shown in the record on pages 9/10, on May 15, 1991, personnel from the Argentine Naval Prefecture arrested an individual who identified himself as Eduardo Javier Iribarren, who was preparing to board the motor vessel Luciano Federico, belonging to the Buquebus firm, along with a Ford F-XNUMX pickup truck, bound for the neighboring city of Montevideo. When the Prefecture checked the vehicle's documentation and the personal documentation of the deceased, it found circumstances that led the officers to examine said documentation more closely, confirming that the DNI was adulterated, "since it has the photograph pasted over the interested party's signature and on its upper left corner there is a drawing of the continuation of the seal of the National Registry of Persons and numbering." After which the accused said his name was Sergio Alejandro Romero.
The Public Defender maintains that the record in question is riddled with irregularities, since her client was detained and interrogated without being informed of his constitutional rights. She also adds that the manner in which the DNI came into the hands of the police officers is not clear, concluding that they acted arbitrarily and exceeded the limits of their functions. The defense is correct in that the statements made by the accused lack one of the requirements demanded by the procedural code - art. 316, paragraph 349, of the Code of Criminal Procedure - to be considered effective. However, it is appropriate to clarify that the fact that these statements do not have the legal effects of a confession does not imply the transmission of any defect to the rest of the record, which details the circumstances in which the accused was detained (art. 184 of the Code of Criminal Procedure). Furthermore, when making a statement under investigation with all the formalities and formalities required by law, Romero recounted, in an almost similar way, the same facts as before the prevention authorities, which allows us to infer that at no time was he coerced, forced or induced to make a statement in a certain way. On the other hand, the personnel of the Argentine Naval Prefecture proceeded in accordance with the provisions of article 183 of the procedural code and, a few hours after having arrested Romero, contacted the judicial authority as required by article 9 of the Code of Procedure in Criminal Matters. With regard to the way in which the adulterated ID came into the hands of the prevention authorities, I find that there are no elements to suppose any irregularity since it is absolutely normal and routine to verify the personal and vehicle documentation of any person who intends to leave the national territory. The simple reading of the seizure report on pages 184/back and the aforementioned article XNUMX, exempts me from any further comment on the matter.
IV.- During his statement (pages 167 and back), Romero claimed that he was hired at a service station by a person called "Sarubi," not knowing whether it was his first or last name, and not knowing any other information about the person; that he would be paid five hundred US dollars and that upon arriving in the neighboring country someone he did not know would identify him. He added that the truck was parked in the parking lot of the port. In this regard, the Public Defender maintains that her client cannot be charged with the authorship of the events and that he was hired only as a driver. It is inconceivable that an adult, who has completed the 1rd year of business (see page 3), a taxi driver by profession, who pastes or has his photograph pasted on someone else's national identity document, who was going to receive a sum of money to transport an almost new van to Uruguay, to be delivered to an unknown person and who says he was hired by a person he cannot even minimally identify, would try to hide behind such an incredible and unusual contract - because it is contrary to the normal order of legally concluded business - and absolve himself of the responsibilities that are his responsibility. Thus, in the opinion of the undersigned, the accused had, at all times, full and absolute knowledge of the illegal maneuver that he was voluntarily carrying out and that, thanks to the timely intervention of the prevention authorities, he was unable to consummate.
Another issue to be considered is the DNI presented by the accused. The defence complains that when requesting all the documentation of those present, the original DNI was not sent, since the copy of it does not allow him to appreciate the flaws that are being accused of, concluding that the ruse was not proven. He adds that no expert report was ordered to prove the falsity of the DNI. Lastly, he maintains that this is an inappropriate attempt since the means used were not suitable to mislead customs control. Firstly, it does not appear from the file that the defence was unable to access the original document. In fact, at page 381, before answering the transfer of the prosecution's accusation, he requested the "a quo" to send the adulterated document. In response to this request, the judge ordered the sending of "the documentation reserved in the Secretariat" (page 382). From the above it appears that, in principle, everything indicates that the DNI in question was indeed sent to the Ombudsman's Office, but if there was some kind of error that frustrated this procedure, there is nothing to prevent it from being requested again, a circumstance not proven in the proceedings and which, therefore, cannot cause harm. As regards the omission of carrying out an expert examination of the adulterated DNI, I am of the opinion that in certain particular cases, such as the one before us, it is not essential for the judge to order it, since from the detailed observation of this document its adulteration can be noted. In situations such as the present one, it is unnecessary to carry out a test of this nature, since technical knowledge is not required to determine the adulteration indicated. In effect, this is reliably proven in the circumstance that the DNI - which I have in view at this time - is in the name of Eduardo Javier Iribarren and signed by him, while the photograph that it shows is of Sergio A. Romero and is pasted over the signature of the former. Furthermore, it should not be forgotten that Iribarren acknowledged the ID as his own, except for the photograph, which was shown to him in photocopy when he made his statement (page 306), adding that it was stolen from him along with the van the day before the attempt was made to bypass customs control. Once the case was opened for evidence (page 393), the defence was able to clarify its doubts by requesting the expert reports it deemed appropriate, omitting to make any request, having definitively closed said period on page 394.
V.- The undersigned has no doubt that the ruse required for the crime of smuggling is proven, precisely, with the adulterated ID, since that was the means that Romero intended to use to evade customs control and that he was unable to do so due to circumstances beyond his control, which was the timely intervention of the prevention authorities. The participation of the accused as the material author of the act is fully proven, since it was Romero who went to the port of this city with the intention of removing from the country a vehicle that did not belong to him, presenting someone else's documentation and that he would receive a sum of money for all this. It is worth noting that there are also various elements in Romero’s possession that indicate the smuggling operation he attempted to carry out, namely: a brochure for a hotel located in downtown Montevideo, a Buquebus ticket in Iribarren’s name, a storage space for the Ford F-100 pickup truck, a boarding pass, a green card for the vehicle in Iribarren’s name, and the aforementioned ID card. The above proves that Romero was not, as his defense claims, a mere driver who had been hired to transport a pickup truck to Uruguay; on the contrary, the accused was fully aware of the illegal operation he was voluntarily carrying out, since the only person who could have legally hired him for such a purpose was the owner himself, who obviously did not do so.
VI.- It is also not admissible to consider the fact under analysis as an unsuitable attempt or an impossible crime, as the defense claims, if by this is understood that "the crime is impossible if, according to the circumstances of the specific case, the action or omission could not consummate the crime despite the fact that the author had done everything that was possible for him to do. If this happens, it can be said that there was no punishable attempt, because the right protected by the penalty was not in actual danger of being violated" (Treaty Ricardo C. Nuñez, Vol. 11, p. 342, 1988). Nor is the defense right when it maintains that the ruse was so crude that Romero would never have been able to complete the customs operation. Although an expert study was not necessary to verify the substitution of the photograph, it is sufficiently clear that the document in the form in which it had been left after the adulteration work had become an instrument suitable for the commission of the crime. According to the minutes on fs. 9/10, what caught the attention of the police officers was, first of all, the diversity of the signatures on the green card and the ID. This was what triggered a more detailed analysis of the document, which revealed that the photograph had been pasted over the signature and that the stamp had anomalies. In short, the ruse was perfectly suited to producing the result, but due to circumstances beyond Romero's control, the attempted smuggling could not be detected in time.
VII.- As regards the legal qualification, the defendant's defence maintains that the claim to use the same fact (alleged use of an allegedly adulterated document) as an aggravating factor of the basic figure and as an independent type with which it would ideally compete is unviable. The defence's argument is correct, since we are dealing with the crime of smuggling aggravated by the presentation of an adulterated identity document without which the intended customs operation could not have been completed, that is, the temporary export of the vehicle referred to in these proceedings. This is, therefore, a complex criminal figure whose type is constituted by the concurrence of figures corresponding to other crimes. In the specific case, the figure of art. 863 of the Customs Code is aggravated by the concurrence of arts. 292 and 296 of the Penal Code, all of which converge in the criminal type outlined by arts. 863, 865 inc.»f', of the Customs Code (Law 22.415 and 23.353) in attempted degree, art. 871 of the aforementioned code.
VIII.- As regards the penalties to be imposed, I consider that those established by the "a quo" are in accordance with the guidelines of arts. 40 and 41 of the Penal Code, both the one concerning this file and the one relating to the unification carried out, including the one in the case and the one imposed by the Oral Criminal Court No. 26 which sentenced the accused, for the crime of robbery, to a sentence of two years of imprisonment.
prison.
IX.- In short, my answer is that the appealed judgment should be confirmed, with the modifications indicated regarding the legal qualification of the fact, as I find it to be in accordance with the law; with costs.
That is my vote.-
In response to the same question, the Court Judge, Dr. Edmundo S. Hendler, said:
I agree with what was stated by Mr. Repetto regarding the rejection of the appellant's grievances regarding the defendant's responsibility for the act for which he was convicted. I also share the considerations regarding the legal classification that should be attributed to the act.
However, I do not agree that the graduation of the prison sentence of a longer duration than that proposed by the representative of the Public Prosecutor's Office is in accordance with the corresponding legal guidelines. The same occurs with the penalty of special disqualification from engaging in commerce. The considerations of the appealed sentence are limited to stating, in the abstract, the different legal guidelines contemplated by art. 41 of the Penal Code, but without indicating in concrete the reasons that lead to attributing to said guidelines the need to impose penalties higher than those required by the holder of the public action.
The legal provision in question, art. 41, paragraph 2, of the Criminal Code, expressly indicates that the various circumstances listed must be assessed as demonstrating the greater or lesser dangerousness of the person who is convicted and, in this case, the Judge a quo has recorded in his judgment the low degree of dangerousness demonstrated (sixth consideration).
That, in this regard, my conclusion is that the appellant's grievances should be partially admitted and the sentence should be modified as regards the penalties applied, which should be limited in the manner proposed by the Public Prosecutor at pages 320/328.
That is my vote.
In response to the same question, Mr. Judge of the Chamber, Dr. Roberto E. Hornos, said:
1°) That, for similar reasons, I agree with the vote cast by Dr. Repetto.
2°) That, without prejudice to this and with respect to the amount of the penalty to be imposed on the accused Sergio Alejandro ROMERO, I consider it appropriate to make some considerations.
According to article 495 of the Criminal Code, MP, it is provided that: "Judges will dictate their sentences in accordance with the following rules: ……….fourth: 6°)………. the legal provisions that are considered applicable will be cited, and the judgment will be pronounced sentencing or acquitting……… , imposing the corresponding penalty" - the emphasis is from this document-.
From the previously transcribed rule it follows that the judge is not imposed as an upper limit of the penalty that eventually individualizes the one requested by the accusing party.
According to the National Constitution, the judge is the holder of the jurisdictional power (arts. 18, 116 ccdtes. of the CN), and in criminal matters that faculty is enabled in its exercise from an accusation, which establishes the facts and the persons in relation to which a valid pronouncement may be adopted. In this sense, the Supreme Court has repeatedly indicated that in criminal matters the guarantee enshrined in art. 18 of the CN requires the observance of the substantial forms of the trial relative to the accusation, defense, evidence and sentence issued by the natural Judges (Fallos 125:10; 127:36; 189:34; 308:1557; 371:2044, among many others).
The Highest Court has established doctrine that "in cases of a criminal nature there is no litis contestatio and the power of the court is not limited by the requests of the prosecution and the defense" (Rulings 212.64).
The Supreme Court also stated: "... the special nature of criminal proceedings, in which - unlike what happens in civil proceedings - jurisdictional power cannot be considered limited by the respective claims of the parties. Otherwise, the judge could not apply a greater penalty than that requested by the accusers or modify the legal classification of the facts submitted to his knowledge, as currently occurs without any controversy in this regard" (Rulings 270:236).
Thus the Agreement ended.
Therefore, and in light of the voting results, by majority it is RESOLVED: TO CONFIRM the appealed judgment on pages 426/433 insofar as it condemns Sergio Alejandro Romero to the penalties indicated therein, MODIFYING only the legal qualification of the facts, which is established as the offense contemplated by arts. 863, 865, inc. "f" of the Customs Code (Law 22.415 and 23.353) in the attempted degree (art. 871 of the aforementioned Code). With costs.
Register, notify and return.
