Time is a precious commodity, which is increasingly considered important for all citizens and, therefore, must be protected. Based on this, the State can no longer rely on it to resolve the different needs that society requires.
Justice is one of the many actions demanded by all citizens, and it will not achieve its purpose if it is conceived without safeguarding the guarantee of expressing itself in a timely manner.
In customs matters, we are faced with different instances that invoke the processes to reach a resolution that defines the dispute between the discrepancies that may arise between the administered and the administration, whether they are tax or infraction treatment; and these processes do not always rest on a reasonable time frame, beyond the prescription period provided by the Customs Code and the effects of suspension and interruption that are determined.
Recently, the National Tax Court (1) dealt with this issue, observing two guidelines regarding the guarantee of the “reasonable period”, which we will announce, by virtue of what is decided, as a positive position and a negative position.
Positive attitude
Based on the vote of Dr. Miguel Nathan Licht, a view is seen that finds room for the treatment of the extinction of the action in the face of a time that exceeds the reasonableness to obtain a resolution, considering for this that within the judicial guarantees is that of the "reasonable term".
To this end, the Judge based his position on the National Constitution, International Pacts, rulings of the Supreme Court of Justice of the Nation, jurisprudence of the Inter-American Court of Human Rights, ruling of the European Court of Human Rights, and on a comprehensive analysis of the causes generating the delays observed.
National Constitution and International Pacts
“Article 75, paragraph 22 of the National Constitution, a provision that grants constitutional hierarchy to various international instruments related to the protection of human rights, requires us to take into account that Article 8, paragraph 1 of the Pact of San José de Costa Rica, referring to judicial guarantees, prescribes not only the right to be heard, but also the right to exercise such right with the proper guarantees and within a reasonable time.”
“In turn, Article 25 of the same international treaty, by establishing judicial protection, ensures effective judicial protection against any act that violates the fundamental rights recognized by the National Constitution, the law or the American Convention on Human Rights, even when such non-compliance is committed by persons acting in the exercise of their official functions.”
“It is also important to note that the right to obtain a judicial ruling without prior delay is a corollary of the right to a defense in court enshrined in Article 18 of our National Constitution.”
Supreme Court of Justice of the Nation
“In this sense, the SCJN has gone so far as to state that “the constitutional guarantee of defense in court includes the right of every accused to obtain a ruling that, defining his position before the law and society, puts an end as quickly as possible to the situation of uncertainty and undeniable restriction that criminal prosecution entails” (Rulings: 272:188; 300:1102; 332:1492 and 335:1126).
“In this same sense, our Highest Court held that the guarantees that assure all inhabitants of the Nation the presumption of their innocence and the inviolability of their defense in court and due process of law (articles 5, 18 and 33 of the National Constitution) are integrated by a rapid and effective judicial decision (Rulings: 300:1102 and 335:1126).”
In turn, he stressed that "the State, with all its resources and power, has no right to make repeated efforts to convict an individual of an alleged crime, thereby subjecting him to inconvenience, expense and suffering, and forcing him to live in a continuous state of anxiety and insecurity, and also increasing the possibility that, even if innocent, he will be found guilty" (Rulings: 272:188 and 335:1126).
“It should be added that the administrative nature of the summary procedure cannot be erected as an obstacle to the application of the principles outlined. Indeed, the SCJN would add that “[…] in the rule of law, the validity of the guarantees set forth in art. 8 of the [American Convention on Human Rights] is not limited to the Judicial Branch, in the eminent exercise of such function, but must be respected by any public body or authority to which materially jurisdictional functions have been assigned” (Rulings: 335:1126).”
Inter-American Court of Human Rights
“The Inter-American Court of Human Rights (hereinafter “IACHR”), whose jurisprudence can serve as a guide for the interpretation of conventional precepts (Rulings: 318:514; 323:4130), would go so far as to state that “[…] [i]n accordance with the separation of public powers that exists in the Rule of Law, although the jurisdictional function is eminently the responsibility of the Judiciary, other public bodies or authorities may exercise functions of the same type.”
“That is to say, when the Convention refers to the right of every person to be heard by a “competent judge or tribunal” for the “determination of his or her rights”, this expression refers to any public authority, whether administrative, legislative or judicial, which through its resolutions determines the rights and obligations of persons.”
“For the aforementioned reason, this Court considers that any State body that exercises functions of a materially jurisdictional nature has the obligation to adopt resolutions in accordance with the guarantees of due process of law in the terms of Article 8 of the American Convention” (IACHR, case of the Constitutional Court vs. Peru, judgment of January 31, 2001, para. 71).”
“This first interpretation would be expanded by the same Court by stating that “[a]lthough Article 8 of the American Convention is entitled “Judicial Guarantees,” its application is not limited to judicial remedies in the strict sense, “but [to] the set of requirements that must be observed in the procedural instances” so that people are in a position to adequately defend their rights against any type of State act that may affect them.”
“That is to say, any action or omission by State bodies within a process, whether administrative, sanctioning or jurisdictional, must respect due process of law” (IACHR, Constitutional Court vs. Peru, judgment of January 31, 2001, para. 69; Baena, Ricardo et al. vs. Panama, judgment of February 2, 2001; and Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8 American Convention on Human Rights), Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 27).”
“Thus, the “reasonable period” of duration of the process referred to in section 1 of Article 8 of the American Convention on Human Rights constitutes, then, a guarantee that can be demanded in all types of proceedings, deferring to the judges the case-by-case determination of whether an unjustified delay in the decision has occurred (Rulings: 335:1126).”
“In view of the absence of time guidelines indicating this reasonable duration, the IACHR would go so far as to assert that the notion of a “reasonable period of time,” detailed in Article 8, paragraph 1 of the Convention, would not be easy to define, and then add that “the elements that the European Court of Human Rights has pointed out in various rulings in which this concept was analyzed can be invoked to clarify, since this article of the American Convention is essentially equivalent to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.”
European Court of Human Rights
“According to the European Court, three elements must be taken into account to determine the reasonableness of the time period within which the process is conducted: a) the complexity of the matter, b) the procedural activity of the interested party, and c) the conduct of the judicial authorities” (IACHR, Genie Lacayo vs. Nicaragua case, judgment of January 29, 1997, para. 77; López Álvarez v. Honduras case, judgment of February 1, 2006, para. 132) (our emphasis). As our Highest Court opportunely mentioned, “such criteria are undoubtedly appropriate to assess the existence of an unreasonable delay, given the indeterminate nature of the expression used by the norm. In such [understanding], it is worth remembering what was stated by this Court in the sense that the guarantee of obtaining a ruling without undue delays [could not] be translated into a fixed number of days, months or years (Rulings: 330:3640)” (Rulings: 335:1126).
Process analysis
In this regard, Member Dr. Miguel Nathan Licht focuses on analyzing the stages and development of the process in the administrative instance. To this end, we proceed to highlight some of the considerations made in his vote:
a) With regard to the characteristics of the matter at hand, he states that "it was not a matter whose complexity could imply that the customs service would have to carry out its procedural activity, prior to the final resolution, for a period of approximately twenty-four years."
b) Regarding the procedural activity of the interested party, it highlights the actions of the administrator that he carried out.
(c) Regarding the conduct of the administrative authority, it indicates that “it is pertinent to highlight that the time periods used by the latter in three of the different stages of the procedure before said instance are not consistent with the principle of reasonableness.” Likewise, that “it is particularly unreasonable that, after the trial period had closed and the corresponding argument had been presented, the administrative authority has delayed another seven years to issue a final resolution. Consequently, from what has been stated thus far, it can be concluded that, in the case under examination, there was an unreasonable delay in the administrative procedure and that, as a result of this, the conduct of the administrative authority was incompatible with the right to due process protected by art. 18 of the National Constitution and by art. 8 of the American Convention on Human Rights.”
Negative posture
For her part, Judge Dr. Claudia B. Sarquis disagreed with the invocation of the excessive passage of time and, therefore, the violation of the guarantee of due process. To this end, she held that:
a) In the case, "since these charges were challenged - which suspended the course of the prescription of the action, until "a decision was made that enables the exercise of the action to collect the tax when said exercise is subordinate to that decision" (art. 805, inc. a), of the CA), (in accordance with the provisions of arts. 803, 804 and 805, inc. a), of the CA), in this case the proposed extinction has not occurred."
(b) Likewise, it added the jurisprudence of the Chamber, in re "Ronalb SRL c/ DGA s/Apelación", judgment of August 30, 2023, highlighting that it is final and in which it was decided to reject the plaintiff's claim in relation to the guarantee of a reasonable period, "indicating that" ... while it is true that the requirement of a reasonable period is enforceable for the administrative authority to exercise its powers, it is also true that its violation cannot be sustained by the mere comparison of the passage of time, since it will always be necessary for the responsible party to fully demonstrate that the administrative procedure was prolonged without justification."
(c) He added that the “reasonable period” theory would cover the fine (criminal sanction) but not the tax aspects; indicating that, “for example, even if in the criminal sphere it was decided to address the claim in this regard, it has not been resolved in the same way in the tax aspects. In this regard, I agree with the interpretation deployed in the case resolved by Chamber F “Manufactura de Fibras Sintéticas SA c/ DGA s/Apelación”, judgment of December 02, 2013, which is also final. There it has been expressed (Considering X) “…the extinctive conclusion regarding the fine imposed in this case does not extend to the tax aspect, since its application only refers to the liability for the infraction, there being no similar provision regarding tax liability (cf. TFN, Sala F, in re 'Scania Argentina SA', File No. 20.402-A of 20/4/2012). “The Vote of Dr. Garbarino (Considering X “in fine”) that I comment on, supported the majority opinion, regarding the non-infraction tax consequences –for example “the limitation of compensatory and/or punitive interest…”- related to tax proceedings of a pecuniary nature. It is expressly clarified there –in relation to applying said doctrine of reasonable period to taxes- “that this Court does not have the authority” due to the principle of unavailability of tax credit. I agree with this interpretation.”
The Judge ruled that "in light of the regulations, doctrine and jurisprudence outlined, the will of the law must prevail in the tax litigation process, when the principle of tax legality is at stake - as in the particular case before us today."
Conclusion
It is recognized that the guarantee of a reasonable period is embedded in the prevailing regulatory frameworks arising from the National Constitution and International Agreements, and this has been repeatedly stated by the SCJN, but here the remarkable thing about the positive position is the analysis carried out on the process, where the externalization of times that do not rest on a logic to reach a prudent pronouncement in terms of what every process should conceive is evident in different stages.
In this way, he finds sufficient justification for his application of the reasonable period, not only on a view that rests on the simple passage of an excessive amount of time, but also in the absence of justification reflected through three points that are shown in the vote of Dr. Miguel Nathan Licht, namely: a) Absence of complexity, b) Procedural activity of the interested party, and c) Conduct developed by the administrative authority. Aspects that, as the member points out, find relevance based on what was promoted by the European Court, in order to arrive at the reasonableness of the period in which the process is developed.
Although the vote for the positive position has not been supported by the other members of the Court, we consider that it opens a notable significance of the duty to protect the citizen against clear circumstances that may arise, based on these three topics that the vote highlights, beyond being faced with a specific time period, which gives greater force to its application, Note that it does not converge only on the mere comparison of the passage of time, but on the demonstration that the administrative procedure was prolonged without justification.
Finally, and without prejudice to the considerations made by the negative position, regarding the scope of this guarantee, depending on whether it is a matter of fines or taxes and accessories. A subject that undoubtedly deserves another major analysis, but taking into account the genesis of the guarantee of a reasonable period that is based on the principle of due process, it is unthinkable that it cannot be applied to all processes, whether they are infringing or tax treatment. It should be noted that the non-coincident vote in the ruling, although it was primarily based on prioritizing the prescription period and the suspension effects that arise in line with what is determined by the Customs Code, before the challenge; certainly, by indicating that, the jurisprudence of that same Chamber, in re "Ronalb SRL c / DGA s / Appeal" (30/08/2023), it was decided to reject the plaintiff's claim in relation to the guarantee of a reasonable period, based on the fact that "While it is true that the requirement of a reasonable period is enforceable for the administrative authority to exercise its powers, it is also true that its violation cannot be sustained by the mere comparison of the passage of time, Since it will always be necessary for the person responsible to fully demonstrate that the administrative procedure was prolonged without justification."; It is clear, in our opinion, that this remedy for extinction is left open, based on the points that Member Dr. Miguel Nathan Licht was able to analyze.
- Judgment of 14.05.2024/34.491/XNUMX, Tax Court of the Nation, Chamber “G”, Drs. Miguel Nathan Licht, Claudia Beatriz Sarquis and Horacio Joaquín Segura, to resolve in the proceedings entitled: “ACINDAR INDUSTRIA ARGENTINA DE ACEROS SA v. DGA s/appeal”, file No. XNUMX-A.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
