An invitation to rethink customs sanctioning law from the truth

1. New challenges and old problems

Today, there are great challenges for “customs”. There are many factors that determine these challenges. 

Undoubtedly, the paradigm shift in relation to the function of Customs, moving from its essential function of controlling the entry and exit of goods from the customs territory, substantially for collection purposes, to a preponderant function in promoting the facilitation and security of trade, and in parallel, establishing an intensification of its original control function, but now with various purposes, has burst into a certain status quo that Customs Law presented towards the end of the last century.

This paradigm shift resizes the function of Customs and projects its future with a decisive push. Along with this, the idea of ​​the greater relevance of Customs for States begins to expand; but fundamentally for the citizens who inhabit them, and this, given the various purposes that the control exercised by Customs fulfills in the protection of citizens, through the application of non-economic restrictions at the border (to protect public health, the environment, national security, morals, animal and plant health, historical, archaeological, cultural heritage, among others) (1); and also for Companies, with Customs intervening through effective control so that legal, predictable trade develops, with fair competition and equal rules for all.

Perhaps the focus of current academic attention is directed at new customs phenomena, substantially caused by technological changes, and the multiple possibilities that these offer in various areas, whether in the flow of trade, transport, logistics; as well as in their use as tools for better customs control (Blockchain, Artificial Intelligence, biometric controls, non-invasive technologies, etc.)

However, the changes mentioned also encourage us to revisit the various institutions of Customs Law, to think about their bases, the normative solutions provided and to compare them with their effective application; and this, in order to determine the current state of the customs legal system, its weaknesses and strengths in the context of the changes mentioned, but also in that of its antecedents.

Perhaps one of the areas of Customs Law that, due to the aforementioned circumstances, deserves greater attention is that of Customs Sanctioning Law.

We designate as Customs Sanctioning Law the set of legal rules and principles that regulate the punitive power of the State with the aim of guaranteeing the preservation and restoration of the legal system in customs matters through the imposition of a sanction, safeguarding – simultaneously – the individual guarantees of the subjects to whom they are imposed. 

We understand that the Sanctioning Customs Law contemplates various areas of customs illegality, according to the punishable conduct and its consequences, and can be distinguished: Criminal Customs Law, Infringement Customs Law, and Corrective Customs Law.

For its part, Infringement Customs Law is the area of ​​Sanctioning Customs Law that regulates illegal conduct classified as customs violations and their punitive consequences, as well as the set of processes or procedures legally established for determining the occurrence of customs violations and the imposition of the corresponding sanctions.

In particular, Customs Infringement Law presents relevant issues that refer to central themes, such as: the importance of the protected legal asset as a guiding principle; the unity or multiplicity of protected legal assets; the list of customs infringements; the survival of objective liability; the function of processes or procedures in the search for the truth; the burden of proof – if we still have to talk about it –; the role of Customs in repressive matters; the judicialization of customs infringements in the search for the substantiation of the investigation of facts with the appearance of infringement and the eventual imposition of its consequences before the Judicial Branch and no longer through administrative means, in order to better guarantee effective judicial protection; among others.

The complexity of these issues can be verified when certain judicial pronouncements draw the attention of the customs legal ecosystem of each country to central aspects related to the procedure for determining or establishing the facts, or the means of proof that are required to make an alleged infringement applicable to a specific case (as may be the case in Argentina, the recent Pioneer ruling, of the Supreme Court of Justice of the Nation, dated February 29, 2024) (2).

As a result of these judicial pronouncements, various voices are raised, many of them very qualified, re-editing arguments about the legal nature of customs violations, the means of proof, the distribution of risks in rulings in the face of error, the legal assets protected in customs violations, the function of Customs, and the limitations that Customs may face in accessing evidence, among other issues. All of them central, all of which continue to be debated.

This only confirms that the development of the various topics mentioned is not effectively consolidated, and that therefore, it is appropriate to undertake a more in-depth analysis, given its relevance not only academically – which it certainly has – but also practical.

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2.On the legal nature of customs violations

We have considered that Customs Offences are the unlawful conduct, active or omissive, included in legal norms through their description that, simultaneously, seek to avoid certain transgressions to the customs legislation, through the normative provision of rewarding the execution of the conduct described with a sanction; and with a coercive character, for the cases in which the conduct described is actually carried out by a subject, they will result in the imposition of the foreseen sanction, with respect to the subject determined as responsible for that conduct, who may be the author of that or another subject, instead of that one or together with that one.(3)

Thus, the customs sanction is based on an illegal conduct classified as a customs violation. (4)

Therefore, we conclude that the purpose of customs sanctions will be to prevent the violation of certain customs regulations, which will include those for which coverage is established by the infringing regulations, through descriptions of certain conduct that, directly or indirectly, qualifies them as illegal, and that, once proven through the legally established process or procedure, will have, in the retributive plane, a legal consequence of affecting the subject who has verified the aforementioned conduct.

It is difficult to imagine that the instrumental function of customs violations and the resulting sanctions is limited to being a regulatory tool that exclusively enables or reinforces the control function assigned to the Customs Administration, and that it does not tend towards the preservation and restoration of the entire customs legal system, for which purposes customs control has also been established.

VIDAL ALBARRACÍN teaches that both crimes and customs violations protect the same legal asset, that is, the adequate control that the laws grant to customs on import and export, but they differ in the way of protecting that object of protection. Violations tend to protect it indirectly, they are satellites, they tend to protect the correct use of customs operational means with a view to not endangering the main legal asset. (5)

We believe that such a statement is closely related to Argentine legislation. However, since although crimes and infractions may protect a single legal right, as in the case noted, it is quite clear that, in the case of infractions in general, and customs in particular, progress has been made in recognizing that through them various legal rights can be protected, even when they have, or may have, protection through crimes as well. (6)

In short, the various legal systems can use these "tools" (infringements and crimes) to achieve the protection of a single legal asset, or of various legal assets, with varying intensities (sanctions or penalties).

Although the uniqueness of the protected legal asset “customs control” may standardize the interpretation of the infringing provisions, it may lead to an inappropriate simplification when there are multiple assets to be protected.

As is known, customs violations involve descriptions of various conducts that affect to a greater or lesser extent the violation of the norm that regulates customs activity, but it may happen that the legal asset protected in the various violations is diverse, and therefore, the interpretations and applications must be adapted to what turns out to be the legal asset protected in each violation.

In this sense, ALTAMIRANO teaches that the concept of protected (or supervised) legal asset assumes an essential role in the interpretation of the law and for the understanding of the incrimination of a certain behavior, from a perspective of political guarantee linked to the plane of constitutional value, and on the other hand, because it allows the teleological interpretation of the infractional system, since it addresses the effective purpose protected by the law.(7)

On the other hand, COTTER points out that the definition of the legal nature of customs violations and the fines (penalties) that, as a consequence of them, are imposed on an individual, is not minor, since this definition will be decisive for the application of the general principles of criminal law to customs violations.(8)

Thus, beyond the particular regulation of violations in each national law, it is essential to determine their legal nature, since as ZORNOZA warns: “…the specific positive regulation in force at any given time may deviate from the principles corresponding to the purpose of each institution, without this being able to be used as a decisive element for its dogmatic characterization, given that this distancing may be irrelevant from the point of view of the nature of the institutions examined or, even, may be no more than an indication of the technical imperfection of said regulation…”. (9)

However, in any case, the elements that can contribute to determining the legal nature of customs violations are the function and structure of the reaction established by the legal system to the various illegal acts. (10) And as mentioned, what characterizes customs violations is their preventive-repressive purpose, and it follows from this that the same guarantees of all sanctioning law are applicable to them.

Thus, from the sanctioning nature of customs violations, the application of the principles that govern the punitive order is derived, such as the principles of the reserve of Law, of typicality, of prohibition of analogy, of non-retroactivity of unfavorable sanctioning provisions and of retroactivity of what is favorable, of prohibition of ne bis in idem, proportionality, personality of the penalty; as well as the adjective guarantees of the right to defense, the right to the presumption of innocence, to be informed of the accusation, the right not to testify against oneself and the right to offer and produce evidence, among others.

In any case, any discussion about the legal nature of customs violations, which is undoubtedly relevant, cannot be aimed at diminishing the guarantees of those affected.

It seems that the argumentative legal discourses that ascribe to the administrative nature of customs violations always end up making the Administration's demands more flexible or nuanced in terms of the search for the truth and the quality of the evidence required to impose a sanction on an individual, which constitutes an inconceivable transgression in a Constitutional State of Law.

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3.The search for truth and the imposition of customs sanctions

It seems necessary to emphasize that, if the State is responsible for establishing the (administrative) procedures and (judicial) sanctioning processes, in order to arrive at the material truth, the deficiency in the same cannot place the risk on individuals, even though this may prevent the alleged culprits from being sanctioned.

If the requirements regarding the quality or standard of proof required from the Administration are reduced simply by the fact that it is difficult to prove, the procedure will not be aimed at the correct application of the rules, and even less at the search for material truth, which should guide all administrative activity, including sanctioning.

It must be recognized that the power-duty of control is implicit in the activity of Customs, and this is enshrined in the respective national legislation. 

Now, the central point that needs to be defined is how this power-duty should be developed, and what is the solution to cases where, despite efforts to verify, the truth about the existence or non-existence of a certain fact cannot be obtained, especially when this fact is a prerequisite for the application of a sanction.

Any customs control involves verification of reality. Thus, the verification procedure goes through doubt, certainty and eventually, finds the truth.

Doubt, in its simplest form, can be defined as the indecision of judgment between two or more hypotheses (11). Certainty, on the other hand, is found in the clear, secure and firm conviction of the truth or falsehood of something. However, as TARUFFO warns, this is related to a subjective feeling.(12)

Obviously, he who doubts has not reached certainty. He who has reached certainty has overcome doubt, or has not gone through it. But this state of conviction does not determine per se that has reached the truth. There may be absolute certainty in the subject of the occurrence of a fact that is not true.

But, the truth exists and does not depend on the subjects, the truth is objective, therefore, something will be true if it corresponds to reality.(14)

Truth can even be perceived, or not. The latter, either because it is unknown – due to lack of interest, not being able to reach it through a verification process, or imprecision of the method adopted for this – or because of prejudgment. 

Furthermore, a fact can be affirmed as true without any verification, and yet be equally true, since the truth of a fact does not depend on the affirmation of the postulate.

As DE PAULA RAMOS notes, truth occurs in the real world, and this occurs by itself, independently of will, perception and even of any consensus. Truth does not need followers, facts happen in the world even if no one confirms them and everyone is convinced of the opposite. (15)

The same can be said of an assertion in relation to a fact; it will be true as long as it coincides with the reality it claims to describe.

Similarly, a customs declaration will be true as long as the content of the declaration corresponds to the reality that is declared. Thus, a declaration is true when it expresses the truth that it claims. And obviously, if it does not, it is not.

Therefore, in order to be able to affirm the truth or falsity of a statement made, it must be possible to verify its correspondence with the reality that is declared. Thus, reality will determine the correctness or not of the statement, and not the other way around (16).

However, in any case, in order to determine the configuration of a customs infringement, it must be possible to determine (within the framework of the process or procedure provided by the Legislator) that the normative prerequisites required by the type of infringement have occurred in the facts, and that they are attributable to a specific subject. It is clear that the precision of the description of the type of infringement has a decisive influence on this. 

Therefore, the Customs Administration or the Judiciary, depending on which has the authority to substantiate the investigation of the facts and impose the sanctions, is the one that must be able to verify that the facts described in the type of infraction actually occurred, and adequately justify (motivate) the resolution that imposes the sanction that results from said determination.

Now, the attribution of the burden of proof in the procedural field has had a relative explanation in a context of an adversarial dispute in which a third party is called to decide the conflict. Presenting itself as an apparent solution to the non liquet that the judge may face when having to resolve, and being able to distribute the risk of lack of certainty.

However, as the most prestigious international doctrine has been pointing out – TARUFFO, NIEVA FENOLL and FERRER BELTRÁN, among others – the rule of the burden of proof is unnecessary or useless in the system of free evaluation of evidence(17); and a broad exercise of investigative powers by the judge is essential to reach a fair decision as long as it is based on the correct evaluation of all available evidence, to the point of seeming to configure a duty of the judge to order the acquisition of all this evidence(18).

If this is the case in civil proceedings between two individual parties in dispute, there can be no doubt that the duty of the Administration, or of the Judge with jurisdiction in customs matters, is to correctly apply the Law to the facts that are effectively proven, to the search for which he must direct his activity, given that its result may be the imposition of a sanction, which determines an affectation of a right.

Thus, a sanction can only be based on the verification of the adequacy of the facts that actually occurred (and therefore true) to the infringing provision; any other solution will be contrary to law.

Suggesting that it would be admissible to impose a sanction when the actual occurrence of the events has not been determined, based on the alleged (or even, certain) evidentiary difficulty of the Customs Administration, could only encourage a lack of interest in the search for material truth (in administrative procedures) or the evidentiary effort (in the dispositive processes in which the fiscal action falls on a representative of the State, such as the Prosecutor's Office with customs jurisdiction in Uruguay), and thus facilitate arbitrariness in the imposition decisions, and consequently, dictate an unfair resolution.

When the duty to verify the facts that may constitute a customs violation is avoided under the arguments of the difficulty in producing evidence, the lack of certainty, the lack of truth, is implicitly recognized, and despite this, the imposition of the sanction is preferred, tolerating the error that may be committed with it. 

A surprising argument is that those who support such positions artificially diminish the size and position of the State, despite the fact that it is the one that can exercise the monopoly of force to enforce the norms. In such legal discourses, the State appears to be at a certain apparent inequality or disadvantage in verifying the material truth that is intended to be the source of its imposition.

This argument is fallacious, since objectively the State has the resources and means to carry out any research activity, and certainly, in better conditions than private individuals. If it does not do so, it will probably be due to organizational apathy or lack of management of said resources, or simple apathy. None of which can serve to justify the reduction of guarantees for those under administration.

If there are coincidences up to this point, it is reasonable to ask: How can we determine when we are actually in the presence of the truth? And thus: What would be the standard of proof that the Customs Administration, or the Judge (in cases where the jurisdiction is outside the Judicial Branch) must meet in order to consider a given fact to be true?

The problem is certainly no less, but this does not mean that the objective pursued, which is the knowledge of the material truth, should be ignored, and there should be no prior interest in the result that determines said cognitive process. In any case, it should be remembered that the imposition of a sanction is only justified when the objective of the sanction is to be fulfilled, namely, to repress the conduct that was proven to be disvalued and violated the legal system.

I understand that the required standard of proof should be “beyond a reasonable doubt”, given the interests that may be affected by a conviction, compared to the potential risk that could be posed by not convicting a guilty person, by lowering said standard to favor the difficulty – but not impossibility – of the Administration’s evidence.

To justify that the interests at stake are the correct collection of taxes, adequate customs control, or the general interests contemplated by the Administration is, if I may say so, putting the cart before the horse. 

If there has been no violation, and a customs violation was not actually established, it cannot be argued that those interests were affected, and that therefore the required standard of proof should be lowered, and thus a penalty imposed, without reaching a level of proof that verifies the effective configuration of the customs violation that motivates the punishment.

Therefore, it is necessary to provide a clear regulatory solution regarding the duties of the Administration in the search for the material truth (or to highlight them in the field of Sanctioning Customs Law), as well as in relation to the standard of proof required to prove the facts that may support a sanctioning resolution for a customs infringement. This must be accompanied by the requirement of adequate motivation. 

Perhaps another weakness of the regimes in which the substantiation and imposition of customs violations is in the hands of the Administration itself, is the lack of impartiality that it may suffer, which deliberately and in advance affects the degree of diligence in the search for the material truth. Thus, this can lead to developing the charge with conviction, but without having reached the truth.

I understand that it is a good time to think about Customs Sanctioning Law from the truth. 

I invite you to do so.

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 1.BASALDÚA, Ricardo X. Evolution of Customs Law and the role of Modern Customs. Journal of Customs Studies. First Semester of 2016 – Second Semester of 2017, No. 23, page. 12

2.Supreme Court of the Argentine Nation, 29/02/2024, “Pioneer Argentina SRL TF 38718-A c/ DGA s/ direct appeal from external body” Accessible at: http://www.saij.gob.ar/descarga-archivo?guid=rstuvwfa-llos-comp-uest-o24000011pdf&name=24000011.pdf

3.VARELA, Andrés. “Reflections on the judicial process for customs violations in Uruguay”, in YACHAQ Law Magazine No. 11, from the Law Students Research Center (CIED), Cusco, National University of San Antonio Abad del Cusco, 2020, p.194.

4.FIGUEREDO, Flavia and VARELA, Andrés. “Customs Agents and Customs Violations and Sanctions”, Customs Offenses and Sanctions, PARDO CARRERO, Germán, Editor, Bogotá, Tirant lo Blanch, 2022, p. 318

5.VIDAL ALBARRACIN, Hector G.: Customs Criminal Law. Didot Editions, Buenos Aires, 2018, p. 90.

6.In the same sense, you can see: ZORNOZA PÉREZ, Juan J.: The system of tax violations and sanctions (The constitutional principles of the sanctioning law), Civitas, Madrid, 1992, p. 55-56.

7.ALTAMIRANO, Alejandro, C. Tax Law. General theory. Buenos Aires: Marcial Pons, 2012 pp. 666 and 667.

8.COTTER, Juan P.: Customs Law and International Trade, Practical Guide and IARA Editions, Buenos Aires, 2018, p. 412.

9.ZORNOZA PÉREZ, Juan J., Op. Cit., p. 52-53.

10.ZORNOZA PÉREZ, Juan J., Op. Cit., p 32.

11.NIEVA FENOLL, Jordi. Doubt in the criminal process. Marcial Pons, Madrid, 2019, Page 19

12.TARUFFO, Michele. Simply the truth: the judge and the construction of the facts. Marcial Pons, Madrid, 2010. Pages 102-103.

13.BY PAULA RAMOS, Vitor. The burden of proof in civil proceedings: from the burden to the duty to prove. Marcial Pons, Madrid. 2020, Page 24.

14.Ibid.

15. DE PAULA RAMOS, Vitor, Page 25

16.In similar senses to what was expressed by DE PAULA RAMOS, Vitor. Op. Cit. Page 24.

17.FERRER BELTRÁN, Jordi. “The Dynamic Burden of Proof. Between Confusion and the Unnecessary”, in Against the Burden of Proof. Madrid: Marcial Pons 2019, page. 35.

18.TARUFFO, Michele. “Almost an Introduction” in Against the Burden of Proof. Madrid: Marcial Pons, 2019, p. 21.