In Buenos Aires on the 30th day of the month of November 2004, the members of Chamber E, Dr. Catalina García Vizcaíno and Ms. Paula Winkler, met, with the first of those named as president, in order to resolve the case entitled: DE GIACOMO, Juan Carlos, file No. 18920-A, to which file No. 18977-A, entitled Carboclor SA (formerly Sol Petróleo SA), has been accumulated.
Dr. Catalina García Vizcaíno said:
I) That on pages 11/24 Juan Carlos De Giacomo files an appeal against Ruling No. 73/03 (AD CAMP), which orders the appellants to pay a fine of $16.470, equivalent to one time the customs value of the merchandise in accordance with art. 954, par. 1, inc. b) of the CA, stating that the settlement is provisional and has been made at the exchange rate corresponding to the date of officialization of the destination, in accordance with the provisions of decree 214/02 and until the Ministry of Economy determines the validity of art. 20 of law 23.905, according to General Instruction of AFIP-DGA 39/02. The company indicates that the fine applied was based on the fact that the export certificate issued by SEDRONAR was not submitted, according to Resolution 2020/93, decree 1095/96 modified by Res. 987/01, decree 1161/00, because it was considered that the imported merchandise was prohibited. It highlights that the declaration was true and accurate; that it cannot be accused of infringing conduct due to the lack of an instrument if the exporting company was authorized to operate and that it details the operations carried out on a quarterly basis with respect to the merchandise of interest. It points out that the company Sol Petróleo SA made the destination official and declared that it accompanied the certificate of prior authorization by SEDRONAR but that it did not add it. It invokes the arbitrariness of the contested resolution. After outlining the defenses raised at customs, it points out that it acted as a customs broker and considers that it has complied with its obligations. He points out that he does not have a registered signature with SEDRONAR to be able to present or claim the Certificate, for which reason he considers that he did not commit any infraction. He alleges that the María Computer System enabled the destination in the manner in which it was documented. He cites jurisprudence. He adds that SEDRONAR reported that there was no prohibition and that if the extension of the certificate had been requested there would have been no objection to granting it, from which he infers that the authorization existed, for which reason we are talking about an extension and that this could only be requested by the exporter. He analyzes the applicable regulations. He reiterates that the infraction attributed by customs was not committed. He argues about good faith, doubt as an exculpatory cause and the eventual formal failure. Alternatively, he requests the application of art. 994 of the CA or, where appropriate, of the mitigating powers of art. 916 of the CA. He offers evidence. He reserves the federal case. He requests that the appealed resolution be revoked, with costs.
II) That at fs. 49/68 ref. Carboclor SA appeals (formerly Sol Petróleo SA) Ruling No. 73/03 (Ad Camp). It states that on 21/2/01, through destination 01 008 EC 01 N° 00810U, it documented the export for consumption of the merchandise of tariff item 2914.12.00.000X, with the due intervention of the customs service; that in the Documents to be presented field, it declared AUPREVENAR = ATTACHED; that it was assigned the Red channel of Selectividad, for which reason it was subjected to physical and documentary verification, and that when these were carried out, no observations or complaints were made about the material presented; that, subsequently, it was charged with the violation of art. 954 ap. 1 inc. b) of the CA He explained that, following the amendment of decree 1095/96 to decree 1161/00, the list of precursors and chemical products used in the illicit manufacture of narcotics and psychotropic substances was updated. He adds that the products Methyl Ethyl Ketone (MEK) and Acetone (DEK) were changed from list II to list I of ANNEX I of decree 1095/96, and that, consequently, from the entry into force of 1161/00, both for import and export, prior authorization from SEDRONAR was required. It refers to Case No. 204/01 that was processed before Federal Court No. 1, Secretariat No. 2, of Salta, in the case entitled Investigation of Violation of Law 23.737 in a factual situation that it considers identical, where it would have been understood that the attributed offense had not been configured. He points out that the alleged infringement was not established in the present case, since he believes that the absence of the authorization could not give the merchandise the status of prohibited, especially since he says that he proceeded in a timely manner to inform SEDRONAR quarterly of the details of the merchandise contemplated in Annex I of decree 1095/96. He believes that the customs service failed to update the Maria Computer System with the new features introduced, so that no observations were made at the time of submission of the documents. He points out that the company is not only registered with SEDRONAR but has been carrying out this activity for a long time without any problems. He argues that his arguments indicate the possibility that there may be an involuntary administrative distraction, since the substances, before the modification of the decree, did not require the authorization that is now required as an essential requirement. He argues that trying to fit his conduct into the figure of art. 954 inc. b) it would be a violation of the general principles of criminal law. It invokes procedural and criminal principles. Citation of case law. It analyses the principle of insignificance, which is related to the principle of just punishment and not the one that is most burdensome for the subject. It raises the unconstitutionality of the sanction for violation of the principle of reasonableness, mentioning the position of Bidart Campos. He states that, if a sanction is applicable, it should be applied with extreme restriction since it affects art. 14 and 17 of the National Constitution, and the serious harm that a disproportionate sanction could cause to the continuity of its activity should not be ignored. He believes that, if the sanction of art. 954 inc. b) of the CA, the principle of legitimate trust that protects the exporter would be violated, since the State (lato sensu) acts in a manner contrary to what is established. He believes that the legitimate confidence of the company cannot be doubted, since before and after the decree came into force, it was subject to customs service controls. He points out that the information requested by SEDRONAR has not been omitted, but that it would in any case be a formal non-compliance. He points out that, given the particularities surrounding this case, it has been demonstrated that his actions have been in good faith, with a complete absence of fraud. Considers art. applicable. 898 of the CA Alternatively, it requests the reframing in art. 994 of the CA and the mitigation of the sentence below the minimum because he has no previous record of infractions, and the non-compliance would not be imputable to him, given that it is a formal non-compliance by the customs service. It raises the unconstitutionality of General Instruction No. 39/02, which would undermine the legal security of those affected, because it would prevent the determination of the real amount of the customs claim. It indicates that SEDRONAR initiated an investigation into the events and imposed a sanction of suspension of the registration of chemical precursors for 15 consecutive days, for which reason it invokes the guarantee of non bis in idem. Provide proof. Reserves the federal case. He requests that the appealed customs resolution be revoked, with costs.
III) That on pages 81/93 the fiscal representation answers the transfer that was duly conferred upon it. It makes a brief summary of the proceedings of the case and the grievances of the importer. It states that at the time of the supervision of the Import Clearance EC 01-0137W/01, the lack of the certificate issued by SEDRONAR with prior authorization of list 1 of Decree No. 1161/2000 was noted in several operations, causing fiscal damage and difference in tax base, despite the fact that it had been stated that it was attached. It points out that on 19/12/00 decree 1161/00 was issued, which established that the substances Methyl Ethyl Ketone and Acetone needed prior authorization from SEDRONAR. It alleges that the importing firm was not unaware of the requirements that it had to meet in order to import that merchandise. The Court considers that in order to fulfill the destination of the merchandise, the authorization provided for in decree 1161/00 should have been presented. The Court considers that the decision is not applicable in a case in which a crime requiring intent was charged, a subjective element that is not required for the alleged infraction. With respect to the fine, it observes that it was set at the legal minimum, applying art. 915 of the CA with respect to its graduation. The Court points out that there is no doubt about the infraction committed, and rejects the application of the figure of art. 994, by virtue of the fact that the fact would fall within art. 954 of the CA. The Court considers that the claim of unconstitutionality of general instruction No. 39/02 cannot be examined, by virtue of the provisions of art. 1164 of the CA. In relation to the appeal filed by the customs broker, Juan Carlos Giacomo, it maintains that the alleged infraction has also been committed, and that he did not demonstrate compliance with his obligations. He argues that decree 1161/00, which regulates both the import and export of chemical goods, stipulates that the presentation of the SEDRONAR certificate is mandatory. He notes that it is not disputed that the goods in question belong to list 1 of the aforementioned decree, and that there is no inconsistency in the customs ruling. He concludes that the omission of the certificate is not excusable, and that the customs broker is responsible for the omission in question, and that it is his responsibility to prove the existence of any cause for exculpation. He cites case law. He offers evidence. He requests that the appeal be rejected, with costs.
IV) That at fs. 94 the case is opened for evidence, which is produced at fs. 105/114, 118/123, 136/137 and 139/141. At fs. 127 the undersigned dictates a measure to better provide which is produced at fs. 143/162, 168/171 and 191/212. At fs. 213 the proceedings are moved to argument. At fs. 244 the proceedings are called to sentence.
V) That on page 1 of file 063 01 there is a list of import dispatches in which the lack of the certificate with prior authorization of list 1 of decree No. 1161/2000 was noted. On pages 3/12 a copy of the export destination EC 01 00137 and its complementary documentation is included. On pages 13 and 15 the opening of the summary is ordered and the appellants are given a hearing, who respond on pages 18/28 and 39/52 the discharge made by the plaintiff is presented. Once the evidence has been produced and the arguments presented, on pages 138/140 the legal opinion is issued. On pages 142/144 the appealed resolution in this case is issued.
(VI) That the challenge of arbitrariness made on pages 14 and 15 back cannot prosper, since it is doctrine of the Supreme Court of Justice of the Nation that such challenge is not applicable to a well-founded resolution or judgment, regardless of its correctness or error (Fallos, 243:560; 246:266; 248:584; 249:549), except in certain cases, such as, for example, the contradiction between the recitals and the operative part (see, among others, Scicolone, Manuel S. v. Prantera, Omar Alberto, et al., 26/11/91). It has also said that since the challenged resolution is sufficiently well-founded, the express mention of all of the appellant's arguments is not required (among others, Fallos, 251:39). It should also be remembered that "judges are not obliged to consider all the evidence produced in the case, but only those that they consider conducive to its correct solution and that, by means of the federal remedy, it should not be attempted to convert this Court into just another ordinary instance" (Rulings, 274:35; 276:132 and 248; 278:135, among many others) (Rulings, 301:676).
That, on the other hand, it is appropriate to point out that it is Supreme Court doctrine that when the restriction of the defense in court occurs in the procedure that is carried out in an administrative seat, the effective violation of art. 18 of the CN does not occur as long as there is the possibility of correcting said restriction in a later jurisdictional stage (Fallos, 205:549; 247:52 consid. 1º., 267-393 consid. 12 and others), because the requirement of the defense in court is satisfied by offering the possibility of appearing before a jurisdictional body in search of justice (Fallos, 205:549, consid. 5º and its citations) -TFN, Sala E, among others, Rivera, Alcides of 27/5/86, López Arispe, José, of 5/9/88-.
That in this instance the appellants have had ample opportunities to produce evidence, with the consequent correction of any irregularity that may have occurred at the customs office.
VII) That the claim of violation of the principle of non bis in idem, made by the exporter on pages 64 back/65 of the proceedings, cannot prosper either.
That, in effect, I have held that: The principle "non bis in idem" is enshrined in art. 897 of the CA. This principle, which prohibits double prosecution for the same act, is implicitly included in the context of declarations, rights and guarantees (art. 33 of the CN), and has been broadly included in art. 1 of the CPP. However, it was formulated in a restricted manner by art. 897 of the CA, by virtue of the fact that this rule provides that "no one may be convicted more than once for the same act contemplated as an infraction", unlike the CPP, which prohibits (broadly) even someone from being criminally prosecuted more than once for the same act". This means that the Customs Office may impose sanctions for infractions (e.g., for unjustified possession of foreign merchandise for commercial or industrial purposes) even if, based on the same objective and subjective elements of the facts, an acquittal judgment has been issued (art. 402 of the CPP) or an order of dismissal has been issued (arts. 334 to 338 of the CPP), or, of course, the preventive proceedings may be ordered to be closed because no crime has been established (art. 195 of the CPP), or the fiscal request may be rejected (art. 195 of the CPP), or the complaint may simply be dismissed (art. 180 of the CPP) for any of the customs offenses contemplated in title I of section XII of the CA. In these cases, there is no identity of cause, since the judges and courts in economic and federal criminal matters do not have original jurisdiction in matters of customs infractions. If, on the other hand, a conviction had been handed down, for the same facts and persons, there would be no grounds for proceedings for violations of Title II of Section XII of the CA, and the provisions of Article 913 of the CA would apply.
However, laws must be interpreted in accordance with the national Constitution, so that if in the customs procedure for infractions (without a customs procedure for crimes having been substantiated) the triple identity of subject, object and cause were given (…) with respect to a person, this person is protected by the principle of 'non bis in idem', even if he or she had not been convicted for the same act, but was acquitted or acquitted, preventing him or her from being subjected to a new trial. Thus, the dismissal (…) of art. 1099 of the CA and the acquittal of art. 1112 of the CA (approved in the terms of art. 1115 of the CA) prevent the initiation of a new procedure for infractions for the same act and beneficiary, applying the principles of arts. 17 and 33 of the CN (Tax Law, Volume II, pp. 96/97. De Palma Buenos Aires, 2nd Edition, 2000).
That, in order for this principle to be invoked, there must be a factual identity, which presupposes the triple identity, consisting of the following:
1) identity of persons (eadem personae), according to which the principle referred to exclusively protects those who have been persecuted as long as such persecution continues or has been concluded by a final acquittal or conviction; it does not protect potential accomplices in the same event who have not been persecuted previously;
2) identity of object (eadem re), which refers to the fact that the fact must be the same in its materiality in both processes, regardless of the legal qualification given;
3) identity of cause of prosecution (eadem causa petendi), which refers to the exercise of the right of action. If in the first proceeding the right of action was validly exercised and before a judge who could hear the full content of the charge, the new prosecution is prohibited, notwithstanding that the factual content of the charge has not been exhausted, provided that it could have been exhausted. There will not be such identity when, for example, in the first proceeding the action was invalidly exercised or when the intervening court was incompetent or lacked the power to exercise jurisdiction.
That, in the absence of one of these three identities, one is not faced with the same fact, and prosecution is possible for conduct that allegedly violates the legal system (CLARI OLMEDO, Jorge, Treatise on Criminal Procedural Law, Vol. I, pp. 247/253, Ediar, Buenos Aires, 1960).
That in this case the principle of non bis in idem has not been violated due to the lack of identity of cause, since the appealed resolution convicted for the violation of inaccurate declaration of art. 954 of the CA, while by Res. No. 574/02 SEDRONAR applied 15 days of suspension in registration to SOL PETRíLEO (now Carboclor SA) by virtue of the provisions of art. 5 of decree 1095/96 and mod. (see pages 107/114) which establishes that:
The SECRETARIAT shall suspend or reject the registration in the Registry or, where appropriate, the renewal thereof for failure to comply with the provisions of Articles 3 and 4. Without prejudice to the remaining sanctions that have been applied in accordance with current legislation, the SECRETARIAT, by itself or through judicial or administrative action by another authority, may, as a result, cancel or suspend for the term determined by it the registrations already established, under the following causes:
4) Non-compliance with articles No. 6, 7, 8, 9, 10, 11, 12, 13, 14 [assumption in which the appellant exporter fell], 15 paragraphs 2, 18 and 19 of this decree.
6) Any other reason that the SECRETARIAT establishes in accordance with the provisions of this decree.
The cancellation, suspension and/or validity of the registration will be determined by the seriousness of the crime, non-compliance, fault or infringement, its repetition and the actual damage that may be caused or the potential damage that may be caused in accordance with the legal rights protected by Law No. 23.737 and other preventive and repressive provisions that may be applicable. Once the registration is cancelled or suspended, said circumstance will be communicated to the agencies, departments or entities determined by the SECRETARIAT.
It should be noted that the partially transcribed rule provides for suspension without prejudice to the remaining sanctions that have been applied in accordance with current legislation, from which the compatibility that exists between the sanction appealed here and the suspension applied can be inferred.
VIII) That the Customs Code protects the principle of truthfulness and accuracy of declarations and statements submitted to customs. Article 954 of said Code punishes and sanctions - in relation to the legal interest protected - anyone who, in order to carry out any of the import or export operations or destinations, makes an inaccurate declaration to the customs service, which if it goes unnoticed, produces or could produce, among other assumptions: b) a violation of a prohibition on import or export, will be sanctioned with a fine of 1 to 5 times the customs value of the merchandise in violation. For this assumption, the appellants were sanctioned by the appealed resolution.
That art. 234, section 2 of the CA stipulates that: The declaration referred to in section 1 must indicate, in addition to the requested destination, the mention of the position of the merchandise in the applicable tariff nomenclature as well as the nature, species, quality, condition, weight, quantity, price, origin, provenance and any other circumstance or element necessary to allow the correct tariff classification and valuation of the merchandise in question by the customs service.
From this rule it follows that the declaration committed must be truthful as to the characteristics of the merchandise, the commercial conditions and other circumstances that allow the customs service to fulfill the function assigned by art. 241 of the CA relative to verify, classify and value the merchandise in question, in order to determine the legal regime applicable to it (e.g., eventual regime of prohibitions).
As a corollary to the provisions of the aforementioned article, art. 957 establishes that: Inaccurate tariff classification included in any declaration relating to import or export operations or destinations shall not be punishable if all the necessary elements have been indicated to allow the customs service to correctly classify the merchandise in question.
That a fortiori the principle of art. 957 of the CA also applies when the inaccuracy relates to the prohibition regime, as long as the declaration of the characteristics of the merchandise is true and complete, and it is not claimed to include documents that have not even been issued.
That the request for export destination for consumption 01 008 EC01 000137W, made official on 8/1/01, the appellants declared the SIM Position 2914.12.00.000J, which the customs has not disputed (see pages 3 of the ant. adm.), for the merchandise Butanone -Methyl Ethyl Ketone- (pages 6 of the ant adm.).
That the question raised arises from the fact that the appellants stated that they had attached the certificate of prior authorization issued by SEDRONAR (in the Documents to be presented field, AUPREVENAR is entered), provided for in accordance with list 1 of decree 1161/00, without having done so (see pages 13 of the adm. ant.), although from the certified photocopies of pages 3/12 of the adm. ant. it appears that in the complementary documentation added to the destination request, the certificate of registration of the exporter in the National Registry of Chemical Precursors of the Secretariat for Programming for the Prevention of Drug Addiction and the Fight against Drug Trafficking was attached, in accordance with the provisions of decree 1095/96, issued on 17/3/00 and valid until 26/3/01 (pages 11 of the adm. ant.).
That decree 1161/00 (BO, 11/12/00) modified the lists of decree 1095/96 in order to update the lists of precursors and chemical products that can be used in the illicit manufacture of narcotics and psychotropic substances, authorizing the Secretariat for the Prevention of Drug Addiction and the Fight against Drug Trafficking to develop plans and programs to control the use of the aforementioned substances in the production of narcotics. List I of Annex I of decree 1095/96 now includes the merchandise exported by the plaintiff (PA SIM 2914.12.00 - Methyl Ethyl Ketone, with the synonym of Butanone, MEK-).
That art. 14 of decree 1095/96 provides that "Those who import/export chemical substances included in list I of annex I must request, by file, from the SECRETARIAT, a prior import/export authorization, at least FIFTEEN (15) business days before the presentation of the corresponding customs procedures.
The SECRETARIAT will acknowledge receipt of the same immediately upon submission.
The file must contain the following information:
a) Name and address, registration number, telephone, telex and fax numbers of the importer or exporter.
b) Name and address, registration number, telephone, telex and fax numbers of the import or export agent and forwarding agent, where applicable.
c) Designation of the chemical substance as indicated in Schedule I.
(d) Net weight/volume of the product in kilograms/litres and fractions of the chemical substance and, if it is part of a mixture, the weight/volume of the substance(s) listed in Schedule I.
e) Quantity and gross weight of packages or containers.
f) Number of containers, if applicable.
g) Information on the shipment regarding: expected date of entry/exit from the country, designation of the customs office where the import/export customs formalities will be completed, transport methods, planned itinerary; in order to be verified by means of a "Tracking Guide" that allows to establish that it is being complied with at all stages.
h) Final destination to be given to said chemical substance.
That the exporter did not comply with this requirement established by the transcribed rule, from which it can be inferred that the configuration of the objective element of the infraction charged by customs was proven, since a declaration was made before the customs service (presentation of the SEDRONAR authorization) that differed from the result of the verification, since the authorization stated was not accompanied and it does not even appear that it had been requested prior to the officialization of the export.
It should be noted that the lack of express authorization for export by SEDRONAR implies the prohibition of the export of the merchandise.
So much so that art. 15 of decree 1095/96 provides that: The prior authorizations and the follow-up guide for importing/exporting, whose models are part of ANNEX IV of this Decree, will be granted by the SECRETARIAT, within five (5) days of being presented.
These authorizations will expire ONE HUNDRED TWENTY (120) days after being issued and may be used only once, covering a single chemical substance.
It follows that the SEDRONAR authorization, in addition to requiring that it be express and for each export, is susceptible to expiration, which denotes the control that must be carried out on the substance in question.
Furthermore, Article 16 of Decree 1095/96 provides that the SECRETARIAT may deny, by a reasoned Resolution, an import/export permit for the substances included in List I of Annex I, when in the opinion of that Agency the conditions and/or objectives established by this Decree are not met.
That on page 122 of the file there is Note No. 734/2004 (FROM TEIM) which states that the requirement of the Certificate provided for in art. 14 of decree 1095/96 is applicable when it comes to imports/exports of products detailed in List I of said decree and that this would fall within the relative prohibitions provided for in art. 612 of the Customs Code; that is to say, for the purposes of importation, the Secretariat for Programming for the Prevention of Drug Addiction and the Fight against Drug Trafficking must authorize it.
That this conclusion is not hindered by the fact that there were no objections to granting the certificate (see pages 114 of the administrative ant.), since the lack of a request for prior authorization implied the possibility of a violation of the export of essential chemical products for the production of narcotics, with the consequence of affecting customs control. In short, the absence of the request for authorization for export means that SEDRONAR and the DGA do not exercise the necessary controls in the fight to prevent the marketing of narcotics and against drug trafficking.
It should not be forgotten that Decree 1095/96 and its amendments were based on the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol Amending the 1961 Single Convention on Narcotic Drugs, and the 1971 Convention on Psychotropic Substances, which commit the Parties to make every effort to apply feasible control measures to substances not subject to the provisions of these treaties but which may be used in the illicit manufacture of narcotic drugs and psychotropic substances.
Furthermore, the Recital of this decree states that the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 establishes in its article 12 that the Parties shall adopt the measures they deem appropriate to prevent the diversion of substances used in the illicit manufacture of narcotic drugs and psychotropic substances.
That, from an objective point of view, as of 8/1/01 the chemical product whose export was requested by the appellant exporter was prohibited from being exported without prior authorization from SEDRONAR.
That the sanctions that could be applied to customs service personnel for not exercising the control provided for in the legal system cannot excuse the conduct of exporters.
Furthermore, it should be noted that in this case the appellant exporter did not even present a subsequent authorization that expressly referred to the request for export destination of the sub-lite, nor did it prove that the authorization had been requested prior to the officialization of the customs operation, which is why the decision of this Court in Wal Mart SA of 7/3/03 invoked on pages 54/vta. Ref.- does not apply.
That the principles of insignificance or trifle invoked on pages 55/56 back Ref. are not applied in the sub-judice, nor has the principle of reasonableness been affected - from the perspective of the objective element of the type (pages 56 back/58 Ref.), given that public safety and health must be adequately protected, not only in our country, but also in other countries, for which Argentina signed international treaties.
That the claim of infringement of the legitimate expectations of the exporter cannot prosper (pages 58/60 Ref.), since the laws are presumed to be known, especially when dealing with those relating to an activity that is habitually exercised, for which reason the exporter could not in any way violate the requirement of prior authorization to export provided for in art. 14 of decree 1095/96 and amendments. No retroactive rule has been sought to be applied in this case.
That the doctrine of own acts does not govern the thema decidendum, since no final customs resolution with the character of res judicata was issued prior to the present one that would imply violating arts. 1139 and 1183 of the CA.
Therefore, I reiterate that at the time of the officialization of the destination, the objective aspect of the illicit act of art. 954 of the CA was established, in that at that time, the possibility of a violation of an export prohibition occurred, due to the lack of authorization from SEDRONAR.
IX) That having established the foregoing, it is appropriate to examine the subjective element, for which purpose the collected elements must be assessed, taking into account that the Supreme Court has said that the general provisions of the Penal Code are applicable to customs violations, according to which only the guilty party may be punished, that is, the one to whom the punishable action can be attributed both objectively and subjectively (Judgments, 290-202, 5th recital and its citations) (SAFRAR Sociedad Anónima Franco Argentina de Automotores, 27/12/88, Judgments, 311:2779). This, without prejudice to the position of the Honorable. Supreme Court regarding the burden of proof regarding the presumption of guilt inherent in the material elements of the actions of the active subject of the infraction, since in Wortman, Jorge Alberto, et al., dated 8/6/93, the High Court held, in the case of formal infractions, that when the existence of material -or objective- elements arise from the proceedings and, therefore, the adequacy to the relevant criminal type, it is up to the accused to bear the burden of proof tending to demonstrate the nonexistence of the subjective element. In the same sense, the Supreme Court has long considered that the burden of proof falls on the appellant in the matter of the fine imposed, since as it has repeatedly pointed out in the presence of the materiality of the infraction ..., it is up to the offender to provide proof in his or her defense -Rulings: 198:310- for which the allegation of ignorance of the legal precepts is not enough -Rulings: 182:384 and others- (Julio E. Real de Azúa v. Internal Taxes, 31/12/46; Rulings, 206:508).
That on pages 34/36 of the administrative antecedents there is a copy of the ruling of the Federal Judge of Salta, dated 17/8/01, issued in case 204/01 entitled Investigation into violation of law 23.737, which dismissed the proceedings pursuant to art. 180 of the CPP, regarding the detention of a truck that was carrying 23.000 liters of Ethyl Methyl Ketone sent by the exporter here appellant, without having the authorization of the SEDRONAR for that transfer. Although in this case it had been reported that Sol Petróleo SA had not managed the export certificate for the shipment of the substance to the Republic of Bolivia and that before the Customs of Campana it was recorded APRÉVENTAR= SE ADJUNTA (as if the authorization was attached, which did not happen), the following were considered as exculpatory reasons: the recent promulgation of decree 1161/00; that, previously, Methyl Ethyl Ketone did not require the certification issued by the control agency for each customs operation; that the intervening customs office did not require it; and that only on 23/3/01 were the modifications introduced by decree 1161/00 sent to the Tariff Classifications Division to be incorporated into the María Computer System.
Although the aforementioned ruling understood that the formal omissions incurred by the company cannot be framed in a criminal figure, it also stressed that this is without prejudice to the need for exhaustive and responsible control of the trafficking of chemical precursors suitable for the production of narcotics, not only with regard to the internal processing of export.
That the lack of commission of a crime does not matter that the conduct cannot be classified as any type of infraction, by virtue of the fact that for the crime of art. 24 of law 23.737 intent is required (see in this regard pages 37 back/38 of the administrative antecedents), while for an inaccurate declaration mere guilt is sufficient.
That the dispatcher states that he understood that it was enough to attach the registration with the National Registry of Chemical Precursors, such as the copy that he added to the export destination request (see fs. 10 of the adm. ant.) and that this error was shared by the exporter (see fs. 60 of the adm. ant.).
That according to what arises from pages 92/96 of the administrative records, the modifications of decree 1161/00 to decree 1095/96 were incorporated into the María Computer System at the national level on 13/12/00, being in force in a timely manner since December 20 of the same year, highlighting that they were communicated in General Instruction No. 78/00 (SDG LTA).
That, however, from fs. 70 of the ant. adm. it appears that the mention of the María Computer System was CERT. SEC. LUCHA C/NAR, for which reason it could be considered that the certification of the registration was sufficient.
That, consequently, the undersigned issued the measure to better provide for fs. 127, by which the DGA's Computer Tariff Division reported that "due to the modifications introduced by Decree No. 1161/00 to Decree No. 1095/96, on 20/12/2000 [see rectification on fs. 168] the pertinent modifications were made to the María Computer System (cenpri equipment) on a general basis (all country customs offices connected to the SIM) so that when declaring merchandise classified on p. SIM 2914.12.00.000, the SIM required the certification established in article 1 of Res. No. 2020/93 ex ANA and its amendments (pages 140 and 168) for the officialization of export or import destinations, definitive or temporary.
That, likewise, on fs. 158, by Note No. 063/2004 (OSI CAMP) the Campana Customs has reported that every requirement that the SIM makes at the time of the officialization of a destination is not implemented locally, but is done in a centralized manner from Buenos Aires, being the faculty of the Technical Directorate and the Directorate of Customs Procedure Programs and Standards with respect to the standards and of the Customs Information Technology Directorate with respect to their implementation in the system. In the opinion of this instance, the system did not require that it be accompanied by the 'CERT. SEC.' LUCHA C/NAR' at the time of officialization 08/01/2001, a fact that allowed it to be carried out and the destination to follow its course (attached is a printout of the export crossing screenshot), based on what was consulted on the SIM screens, therefore it is clear that when the presentation was made it did not require the actual presentation of the certificate in question (AUPREVENAR).
That, taking into account the rectification of fs. 168 of the records regarding the date of the modifications in the SIM (the expression 20/12/2002, should be rectified by “20/12/2000), the undersigned issued the measure of fs. 172, so that the Campana Customs would ratify or rectify its Note No. 063/2004 (OSI CAMP), which was produced on fs. 191/212.
That, by virtue of said measure, the Verification Section of the Campana Customs, by Note No. 1199/04 (SECC V) ratifies the information reported, this instance understanding that if the SIM allowed the officialization of the destination 01 008 EC 01 000137 W advancing to the presentation of the same, it was not required to enter the number of the SEDRONAR Authorization Certificate (fs. 205). This report is shared by Note No. 1624/04 R (fs. 206) and sent by the administrator of the Campana Customs as reported on fs. 207.
That although, since this is an activity carried out by the appellant exporter, it could not ignore the obligation of prior authorization from SEDRONAR for the export that is the subject of the sub-lite, the above, regarding the lack of adaptation of the Computer System to the reform in force at the time of the officialization of the import clearance in question, generates in my mind a reasonable doubt about the configuration of the subjective element with respect to the alleged infraction, which leads to the application of the principle of art. 898 of the CA, without costs to the DGA, given that due to the difficulties of the issue raised it could plausibly consider itself with the right to litigate.
That the reports on pages 140, 158 and 205/207 merit not reclassifying the conduct of the appellants as a formal infraction, since I reiterate that as of 8/1/01 the Computer System was not properly implemented by customs.
Furthermore, I note that SEDRONAR has reported that if the extension of the certificate had been requested, there would have been no objections to granting it; that the company had no impediment to having requested the corresponding export certificate in the first four months of 2001, although the transport company was not authorized to transport the merchandise; that the appellant exporter reported on the transactions carried out during the first quarter of 2001 (pages 114/115 of the previous administrative proceedings).
X) That specifically with regard to the customs broker, Mr. Juan Carlos De Giacomo, SEDRONAR has reported that it could not verify whether the appellant broker was authorized to process the certificate, given that it was not requested (pages 114/115 of the adm. ant.), whereas in the present case SEDRONAR reported that the regulations do not require that export authorization certificates be processed by customs brokers; but only require that the broker be duly authorized to act on behalf of the natural or legal person on whose behalf the procedure in question is carried out (pages 137).
That this commercial assistant correctly declared the tariff position of the merchandise, which resulted in the need to attach a certificate and he attached the certificate of registration of the exporter before the SEDRONAR (page 11 of the previous administrative documents). The exporter had to deliver the authorization that it had managed.
Furthermore, the arguments put forward by the exporter allow us to infer that the customs agent would have complied with the instructions received, which is why the exception of art. 908 of the CA applies, in accordance with the provisions of arts. 902 and related articles of the CA.
That the Supreme Court, in re Garibotti, Armando (Fallos, 287:191), held that, in principle, the customs broker who, in fulfilling his obligations, abides by the statements made by the importer and by the supporting documentation, is exempt from liability, unless he incurs in personal acts that compromise him. As stated by the CN. Cont.-Adm. Fed. Cap., Room 4, in re Nadia SCA, dated 28/4/83, there is a reversal of the burden of proof, with the obligation to prove the existence of grounds for exculpation falling to the broker. Similarly, Room 1 of the CN. Cont.-Adm. Fed. Cap., in re De Fabriziis and D'Orsi SRL, dated 19/10/82, pointed out that the Chamber's acquittal history in this matter requires that the party has proven that it complied with its obligations, or that such circumstance arises from the administrative history considered when making the decision.
Therefore, I vote for:
Revoke Ruling No. 73/03 of the Campana Customs Office, without costs to the DGA with respect to Sol Petróleo SA (now Carboclor SA), and with costs to the DGA with respect to the customs agent Juan Carlos De Giacomo.
Dr. Winkler said:
I agree with the preceding vote.
In accordance with the above agreement, it is unanimously RESOLVED:
Revoke Ruling No. 73/03 of the Campana Customs Office, without costs to the DGA with respect to Sol Petróleo SA (now Carboclor SA), and with costs to the DGA with respect to the customs agent Juan Carlos De Giacomo.
Register, notify, promptly return and archive the administrative records.
The following sign this document: Dr. García Vizcaíno and Dr. Winkler, as the position of Member of the 14th Nomination is vacant. (Conf. art. 1162 of the CA)
