COURT: Supreme Court's Office (CS)
DATE: 1998/05/07
PARTIES: Dotti, Miguel A. and other opinion
Attorney General's Office: I. The Federal Court of Appeal of Paraná, Entre Rios, Nov. 5, confirmed, in so far as relevant, the decision at first instance in place was not the exception raised by the incompetence defense charged Miguel A. Dotti and Daniel R. Aires, in the case that, for the crime of attempted smuggling, they are instructed before the Federal Court of First Instance of Concepción del Uruguay.Para take that temper, the appellate court held that the concept of territory referred to in art. 1 of the Code. Criminal, not confined to a physical aspect but also to places that rule "subject to jurisdiction." The latter concept, he said allows the application of the law of our country to places that the Republic has jurisdiction by virtue of agreements or pacts internacionales.Sentado therefore concluded that justice is for Argentina to understand in this investigation, since maneuver that originated was detected by national officials at the customs post that makes up the so-called "Integrated Control Center" statue by the Agreement of Recife, a fact which allows to consider it as an "enclave", according to what is prescribed in the arts . 1 and 4 Coll. Aduanero.Contra that decision, the technical assistance of the appointed extraordinary appeal filed, which was granted on pages 74.II. In his presentation on pages 63/67, the appellants consider that the ruling of the court a quo unknown, without any reason, the principle of territoriality enshrined in the Treaty of Montevideo of 1889-ratified by Law 3192 - in criminal matters, according to the crimes which are deemed by the courts and the laws criminalize the nation in whose territory the perpetrators, affecting, thus, the principle of supremacy of the Constitution (articles 31 and 75 inc. 22, Constitution). stress the institutional gravity that, in his view, the case raises, by giving greater the camera on such a treaty agreement was not approved by the National Congress, promising, in that way, the basic institutions of the country.The support of its claim, insisting the arguments to set out grounds on appeal. In this sense, refers to: a) That the integrated customs control center can not be regarded as an enclave, according to what is stated above, was not established by treaty internacionalb) The Common Market Council, the authority emanating called "Agreement of Recife", not a supranational entity in the terms provided for in art. 67 inc. 24 of the Constitution. Therefore, understand that their decisions can not displace that principle of territoriality established by the Treaty of Montevideo 1889.III. According to the story above, I appreciate the criticism of the appellants merely questions the validity and subsequent application to the "sub judice" of the aforementioned Agreement Recife, without opening your opinion about this contenido.Sentado, is most noteworthy that the complaint in the direction directed the appellants not only contains, implicitly, to discuss the extent agreed by the lower court to the expression "places under its jurisdiction" contained in art. 1 of the Code. Criminal but also put into question the intelligence given to the said Agreement in the framework of international treaties "of Montevideo Assumption 1980 and 1991 - and art. 1 and 4 of the Code. Customs applicable in the matter. I therefore consider that the special appeal because it formally from besides that VE has recognized the federal nature of matter that falls within common law rule (Bug 311:2571), since at stake is the interpretation of various international conventions and relapse decision was contrary to the law on that basis relies on his behalf to the appellant (Fallos 305:692, 306:1312, 310:1080, 311:2646 and 3112:152, among others).
IV. On the merits of the case, I believe that the foundations poured by the camera from recognition of the validity of the Agreement of Recife, prevent the disqualification of failure as claimed by the recurrentes.En effect, first of all I must stress that the agreement in question is governed, as they are applicable, the rules of the Treaty of Montevideo of 1980 and by Resolution 2 of the Council of Ministers, statues by him as the supreme organ of the "Latin American Integration Association ALADI-(art. 30). The said treaty of Montevideo replaced the 1960-signed by our country and instituted the Latin American Free Trade Association "- in the integration process aimed at promoting economic and social development of the region agreed on the goal long term this process, the establishment in a gradual and progressive Latin American common market (art. 1) Among other functions of that board, is that of ... "issue general rules tend to best achieve the objectives Association and the harmonious development of the integration process ... " (Art. 30 inc. A). On the other hand, it also gives the possibility of partial agreements, those in which part or all of the member countries, to fulfill the basic functions of the ALADI (ss 2. y4 º º). Even among this type of agreement provides specifically those related to promoting trade (Articles 7 and 8) category involving the said Agreement of Recife to establish, precisely in order to facilitate trade among the countries supporting it, the technical and operational measures to regulate the integrated controls on border . Therefore, it is not enough to appreciate what is supported by the demand made by the appellants regarding the approval of the agreement by Congress, which leads them to ignore its effect and omit consideration of the provisions of art. 18, under which officials of the signatory countries, with the powers set forth and representation (Article 31) that rightfully gives the aforementioned Treaty of Montevideo 1980, ratified by Law 22,354, have agreed that rules from the date of its subscription-18th May 1994 - and that will last indefinida.Por Moreover, unless the formal invocation by the appellants, the prosecutor and the judge first instance, does not arise for their content or the said regulations under which it is based, that that agreement was adopted by a decision of the Common Market Council, a circumstance that can validate without further consideration, wave impugnada.Sin decision, however, still verifying that end. criticism can not succeed in this regard directed the appellant (section II, point b). This is so, since the power to decide that agreements such as occupies is also provided within the powers granted to that body by the so-called Treaty of Asuncion "considering" as appears from his statement of principles "as a further step in efforts aimed at fulfilling the objective of the Montevideo Treaty of 1980 regulatory framework, as was exposed, questioned Recife Agreement. It should be noted that one consequence of that common purpose that arises from both instruments, it is the commitment made at the first of the by the signatory nations to respect signed agreements to the date of its conclusion in the field of Latin American Integration Association, as well as to coordinate their positions in external trade negotiations undertaken during the transition period (art. 8 º). Repárese also that the signing of the Asuncion Treaty, ratified by Law 23,981, the States Parties decided to establish a Common Market of the South (Mercosur) established among the main instruments for their formation during the designated period of transition to its final shape, the December 31, 1994 - "... the adoption of sectoral agreements in order to optimize the use and mobility of production factors and to achieve efficient scales of operation ... " (Art. 5 inc. D). Also, the council said the Common Market rightful as governing body of the "Mercosur", its political leadership "... and making decisions to ensure compliance with the goals and deadlines for the final constitution of the Common Market .." (Art. 10). Accordingly, the community of interest indicated that emanates from both international treaties approved by Congress and recognized authority of that council in accordance with the above, coupled with the express provision contained in art. Recife 18 of the Agreement, are sufficient reasons to support the immediate enactment of our country, without thereby be undermined constitutional guarantees invoked by the appellants, Moreover, it is concluded that temperament adopted by the court a quo does not necessarily depart from the principle of territoriality enshrined in the Treaty of Montevideo of 1889, In \u200b\u200bany case, from the regulation of so-called integrated centers of commercial integration of Latin American countries agreed on mentioned international agreements, leading to implement, according to our punitive law-that principle to cases such as this, by extension jurisdicción.V. Therefore, I am of the opinion that corresponds to confirm the statement on pages 56/57, in all that could be subject to appeal. - August 14, 1997. - Nicholas E. Becerra.Buenos Aires, May 7 1998.Considerando: 1. Than against the decision of the Federal Court of Appeals of Paraná, which confirmed the decision at first instance dismissed in a plea raised by the defense of the accused Miguel A. Dotti and Daniel R. Aires in the case that they are instructed before the Federal Court of First Instance of Concepción del Uruguay for the crime of attempted smuggling, the defendants filed an extraordinary appeal, which was concedido.2. The acts for which they were accused of the crime in question were known for Argentina customs officials in the Integrated Control Centre located at the end of the International Bridge "General San Martín", in Uruguay. The chamber ruled that the zone is formed Recife by the Agreement signed between the Republics of Brazil, Paraguay, Uruguay and Argentina on May 18, 1994, as an enclave within the meaning of art. 4 of the Code. Therefore pondered the concept of territory referred to in art. 1 of the Code. Criminal, not merely a physical aspect but also legally, referring to that standard "places under its jurisdiction." The latter concept, he said, allows the application of the law of our country to places that Argentina has jurisdiction under international agreements or covenants, as is the case tried to Recife. For these reasons, rejected the plea of \u200b\u200bincompetencia.3. That the appellants' grievances of the lower court decision in arguing that the Integrated Customs Control Center is an enclave, then say, this can only be established by international treaty and the Agreement of Recife has no such nature, since that has not been approved by the National Congress. Understand that the Council of Ministers is not a supranational entity in terms of art. 75 inc. 24 of the Constitution and any other rule provides for the automatic incorporation of its decisions to the Treaty of Asunción. It added that the agreement lacks Recife legal entity and can not move the effect and operation of the Montevideo Treaty in Criminal Matters of 1889 that in his art. 1 º determined to be vested with the international tribunal was the country where perpetrated delito.4. That the special appeal is formally from all time has been put into question the intelligence of federal-Treaty of Montevideo, 1980, Recife Agreement and art. 4, Cod. Customs, and the decision was contrary to established law that the appellant in (Article 14 inc. 3 º) .5. That the partial agreement on trade facilitation, concluded between Argentina, the Federative Republic of Brazil, Paraguay and the Eastern Republic of Uruguay called Recife Agreement "governing the integrated border controls and is governed by the Montevideo Treaty rules approved by Law 22,354 and duly ratified by the establishment of the Latin American Integration Association. This is provided that the letter itself "Recife Agreement" in its introductory part stating that the signatory countries republics of Argentina, Brazil, Paraguay and Uruguay agree that that instrument shall be governed, as they are applicable, the rules Montevideo Treaty of 1980 and Res. 2 Ministros.6 Council. The treaty establishing the Latin American Association: Integration authorizes partial agreements, ie agreements in which not all the participating member countries, which tend to create conditions to deepen the regional integration process (art. 7) .7. That the "Agreement of Recife" under the Treaty of Montevideo in 1980 as a settlement of this particular response to the normal rules to be followed by the so-called "trade promotion agreements" relating to non-tariff matters and tend to promote interregional trade flows, which authorize the issuance of specific standards for compliance (art. 13) 8. What is important to note that the Agreement Recife is strictly an international treaty within the meaning of art. 2 nd inc. 1, paragraph a, of the Vienna Convention on Law of Treaties. In this partial agreement consent Argentine state has manifested itself in a simplified form, ie without the intervention of Congress in the federal complex act that culminates in the adoption and ratification of a treaty (art. 75 inc. 22, art. 99 inc. 11, Constitution ), which is under the constitutional procedure that took place before the approval of the Montevideo Treaty of 1980 by 22,354 law. Just the art. 7 of the Treaty of Montevideo of 1980 authorizing the conclusion of the simplified arrangements as this Agreement in Recife, as imperativeness derived from the authorization granted by the Treaty of Montevideo 1980. The international legal relationship under these agreements is clearly partial to light of the Montevideo Treaty of 1980 which states that such instruments include negotiation procedures for periodic review at the request of any member who feels aggrieved. Furthermore, the inc. g) of Art. 9, provides that specific rules may include withdrawal and renegotiation of concessions and reporting. These provisions would lose all virtuality if the parties could unilaterally break away from their vinculatoriedad.9. That determine whether the commitments in the framework of the Montevideo Treaty of 1980 has a full scope, that is, if they create genuine rights and obligations for states, whose failure would lead to international responsibility, is of particular importance. Precisely because it is necessary to recognize the imperative of the commitments made by the country, so that admitting the preliminary objection, arguing that the Argentine State has no jurisdiction, because the treaty null and void, not the decision that best accords with the rules of vigente.10 international law. That is not always worth remembering, that treaties must be construed and enforced in good faith pursuant to Art. 31 inc. 1 of the Vienna Convention on the Law of Treaties. And because of this hermeneutical approach, derogated by the parties, nothing in the language of the Montevideo Treaty of 1980 or the rules adopted under it questionable to suggest that both can, as indivisible unit, to escape that characterization and inteligencia.11. That by virtue of the above is fully effective to clarify: the question of what is the international jurisdiction to prosecute a crime committed in the Integrated Control Area, art. 3.2 of the Agreement of Recife, in stating that the officials of each country shall be held in the area, their customs controls, immigration, health and transport. To do so means that the jurisdiction and competence of the organs and officials of the neighboring country to be considered extended Integrated Control Area. This special rule shifts the Criminal Law Treaty 1889 Montevideo International application as claimed by the appellants. However, it must be emphasized that both are fully reconcilable with international standards as defined the jurisdiction of Argentina special way in which it has the agreement of Recife, fully applies the territorial principle in judicial sense, enshrined in art. 1 of the Montevideo Treaty of 1889.12. That, consequently, Argentina validly exercised international competition in the case because the state has jurisdiction whose administrative bodies, involved in the findings of fact within its competence customs, which were caused by Argentine officials. This rule detached Agreement Recife is also a member of special or particular international law established by the 1980 Montevideo Treaty which art. 7 th is normative budget of the agreement (see Amerasinghe, "Principles of International Law of International Organizations", Cambridge, 1996 p. 226 et seq; p. 324 et seq). Therefore, it is stated from the special appeal and affirmed the sentence appealed. With costs. - Julio S. Nazarene. - Eduardo Moline O'Connor. - Charles S. Fayt. - Augusto C. Belluscio (depending on your vote.) - Antonio Boggiano. - Guillermo López AF. - Gustavo A. Bossert (depending on your vote.) - Adolfo R. Vázquez. - Henry S. Petracchi (depending on your vote.) Vote Belluscio and Bossert.Considerando doctors: 1. That against the ruling of the Federal Court of Appeals of Parana, to confirm the decision in the previous instance, rejected the plea raised by the defense of Miguel A. Dotti and Daniel R. Aires, in the case that they are instructed on charges of attempted smuggling, the defendants filed an extraordinary federal appeal, which was granted to fs. Vuelta.2 74/74. That the action is formally it is coming into question the interpretation and application of federal-art. 1, International Criminal Law Treaty of Montevideo, 1889 Recife Agreement, art. 4, Cod. Customs-approved by Law 22.415, and the decision was contrary to the rights that the appellant sustained in such provisions (art. 14 inc. 3, Law 48) 3. That art. 1 of the Treaty on International Criminal Law in Montevideo, 1889, in force in relations between Argentina and the Eastern Republic of Uruguay, limits the exercise of criminal jurisdiction and the application of the law of the respective states, at their branch punitive in these terms: "The crimes, whatever the nationality of the agent, the victim or the victim, are judged by the courts and Penan by the laws of the nation in whose territory the perpetrators" (art. 1). This principle must be weighed in conjunction with the provisions of art. 2 of the Treaty, which provides the conferral of jurisdiction to prosecute and punish crimes in relation to the effects of a legal (Vico, Carlos M., "Private International Law Course," Law Library Argentina, Buenos Aires, 1961, ps. 268/271), a notion especially useful in cars, since they will debate the prosecution of a crime of attempted smuggling matters injury nacional.4 legal order. That Argentina and the Eastern Republic of Uruguay has been forced by an international agreement, the agreement of Recife, which extends under a fiction, the concept of territory under national jurisdiction for customs purposes, in order to optimize the functions of the respective customs in the border areas, due to the return of the forms of exchange and in meeting the objectives of partner countries themselves in the process of integración.En this regard, the Customs Code approved by Law 22,415, contemporary Montevideo Treaty of August 12, 1980, which gave birth to the Latin American Integration Association, whose ratification was approved by law 22,354, provides for certain special areas of extraterritorial application of national customs legislation in areas not subject to the sovereignty of the Republic (art. 4, Law 22.415) 5. That, as judges have said previous instances, Recife Agreement obliges signatory countries from the date of sucripción-on May 18, 1994 - and takes the form of "partial agreement" within the meaning of Section Three, Chapter II of the Treaty of Montevideo 1980, arts. Grades 7 to 14, especially art. 13, which says: "The promotion of trade agreements will be referred to non-tariff matters and tend to promote intraregional trade flows. Is subject to the specific rules established for that purpose." It is an international treaty under the terms of the arts. 12 inc. 1, para. a, of the Vienna Convention on the Law of Treaties, adopted by Law 19,865 and force on January 27, 1980 - which governs in Argentina as it does internationally according to the will of the states, ie, from their signature (art. 7, para. Second, the Treaty of Montevideo 1980, art. 18, Recife Agreement) .6. The specific rules governing the holding of partial agreements within the framework of the Latin American Integration Association, was the answer. 2 of the Council of Ministers, whose art. 9, relating to trade promotion agreements included it pertains to customs cooperation as a matter of these agreements, in accordance with the directive contained in Art. 13 of the Treaty of Montevideo of 1980, transcribed in recital precedente.7. These considerations leave the grounds without support of the appellant, in that the Recife Agreement would not be an appropriate international instrument to create an enclave within the meaning of art. 4 of the Code. Customs. Nor is it relevant for the decision of this case, the argument concerning the absence of supranational bodies that constitute the institutional structure of the Southern Common Market. At present, it is implementing an international agreement, partial agreement in which the Argentine state was expressed in simplified form, "concluded in the framework of the Montevideo Treaty of 1980 establishing the ALADI, and existing between signatory states (conf 317:1282 failures, paragraphs 5 and 8; vote matched the judge Boggiano, paragraphs 10 to 15) 8. Is also unfounded alleged violation to the Treaty on International Penal Law, Montevideo, 1889. Indeed, the limits of legislative power and criminal exercise of national criminal court can not be set via a "trade promotion agreement, which excludes the intervention of the National Congress (conf art. 75 inc. 12, Constitution). However, within the field of customs cooperation is possible in the appropriate path, delimit a customs territory fiction that favors the concerted control areas border, and legitimizes the actions of the Argentine officials. Such is the sense in which art should be interpreted. 3 ° inc. Agreement to Recife. In this sense, moreover, been interpreted by the Uruguayan, who has authorized and facilitating the arrest of the accused by Argentine authorities. The principles of an international treaty at the end of the last century should be interpreted in light of the principles of cooperation and solidarity to guide relations between partner countries in the process of integración.9. That the foregoing involve confirmation of the appealed decision, since it admits the jurisdiction of the Argentine federal judge to hear the crime of attempted import contraband detected by Argentine administrative bodies authorized in the area of \u200b\u200bintegrated border control in the town of Fray Bentos, Republic of Uruguay.Por This result confirms the original ruling. With costs. - Augusto C. Belluscio. - Gustavo A. Dr. Bossert.Voto PetracchiConsiderando: 1. The Federal Court of Appeal upheld the decision of Paraná trial judge, as did lead to a plea by the defense translated by Miguel A. Dotti and Daniel R. Aires. Against this decision an appeal was extraordinary, which was granted to fs. 74.2. The detention of persons charged with attempted smuggling of import occurred on August 31, 1995 in the area of \u200b\u200bintegrated control of the International Bridge "Libertador General San Martín", based in central border town of Fray Bentos, Eastern Republic of Uruguay. In response, the defense argued that the federal judge of Concepción del Uruguay was no jurisdiction over the crime attributed to Dotti and Aires.3. That the trial judge rejected the objection brought by considering that the "integrated control area" in which the arrest occurred is an "enclave" within the meaning of art. 4 of the Code. Customs, which is applicable national legislation in customs matters under the Agreement of Recife. This form of control border is provided by the international instrument, which was dictated by the Common Market Council established under the Treaty of Asuncion. The decision was upheld by the appeal on the same grounds. The chamber also noted that the concept of territory of art. 1 of the Criminal Code is not constituted only by the physical aspect, but also by the law and empowers the enforcement of Argentina in the "places under its jurisdiction", as in the case as a result of the Agreement of Recife and mencionado.4. That the appellants' grievances of the resolution as it moves the force of the Treaty of Montevideo of 1889-under which the jurisdiction is governed by the territory in which they perpetrated the crime, and gives prominence to an alleged "enclave", created by international agreement (Agreement Recife) was not approved by Congress the Nation, and, therefore, lacks the qualifications necessary to exclude the existence of a treaty itself dicho.5. That the special appeal is formally appropriate, as it is in discussion the interpretation of provisions of federal-Treaty of Montevideo of 1889, arts. 1 and 4 of the Code. Customs and Recife Agreement and relapse decision was contrary to law that the appellants in (Article 14 inc. 3, Law 48) 6. That all the rules that come into consideration in the case enshrine the principle that competition is assessed regularly by the place of commission of the crime. Indeed, despite the differences in the formulation, the principle of territoriality is explicit both in the art. 1 of the Code. Criminal, as in the art. 1 of the Code. Customs, and also in art. 1 of the Treaty of Montevideo on International Penal Law, 1889 as claimed by the apelantes.7 application. That this Court has said that in the so-called "crimes at a distance", ie, all those facts on which the different steps of the "iter criminis not occur in the same place, the crime committed is estimated in all jurisdictions through which the action has been developed, and also in place for verification of the result (acc., among many others, Faults 288:219, 294:257, 292:530, 313:823, 317 : 485-Law, 154-671, 196-A, 252 -) .8. That the adoption of that criterion of ubiquity to establish the place of commission of the offense is due to the cases of attempt that the crime committed be regarded as the place where he began performing as the place where should have produced the consummation. While some decisions this court has considered advisable in such cases the place is the determinant of the performance of the action, this is due solely to the prevalence of considerations of judicial economy (acc. Faults 306:842), and not a rule change indicada.9. The background and reasons for the adoption of this line appear in interrupting the opinion of the Attorney General to provide a basis for the decision 271:396 Trouble (The Law, 135-976). As noted there, the aphorism "forum delicti commissi not determine that the failure is deemed committed in the place where the crime is committed by producing the result, but" everywhere outside world "where even only been made actually a part of the action. This is the position which was adopted by the case law German Supreme Court [BGH] and subsequently collected by the legislature in paragraph 9, inc. (1), the German Penal Code: "The fact is committed in the place where the author has acted, or in case of default, which should have acted, or where there has been the result belongs to type, or which should have been produced according to the author's representation ".10. The German case law referred to by the precedent cited was caused, in relation to attempts, in a case that holds remarkable similarity to the sub lite, the authors attempted to smuggle coffee and cigarettes to the Federal Republic of Germany from Luxembourg . To be discovered before reaching the border, abandoned the merchandise and returned to Germany in a boat across the Moselle, where an accomplice was waiting. At that time, the Supreme Court, in deciding that the deed was reached by the territorial principle, considered decisive was the fact that "there [in Germany] where the result, ie, the fraud of customs duties, should occur "(acc. BGHSt 4, 333, esp. 335) 11. That despite the start of execution of the crime of attempted smuggling of import occurred in Uruguay, is competent to regard the Argentine judge, as it is in Argentine territory where the consummation was to have occurred, or in terms of art. 1 of the Code. Criminal, that is where the lawsuit was to produce its effects. As pointed out by Sebastian Soler to analyze this expression, even when linked to real or so-called principle of defense, "it is clear that when the offense amount injury to the national legal order, national competence to judge and punish is indisputable" (acc. aut. cit., "the Argentine Penal Law," Tea, Buenos Aires, 1963, t. I, ps. 173 and SIGTE.). It is recalled that such intelligence of art. 1 of the Code. Criminal, because of their specificity in tort is to be assigned to the concept of "place of the crime of smuggling," the art budget. 1 of the Code. Aduanero.12. That the interpretation that corresponds to the respective standards of the Montevideo Treaty of 1889 is irrelevant to the resolution of this dispute, as its rules only come into consideration in cases of overlapping interest and prosecution from state parties, which has not been raised in the case. In fact, the Uruguayan state has not only expressed their interest in him who takes over the prosecution of the act, but has allowed and facilitated the arrest of the accused by Argentine authorities. On the other hand, it is applicable to the case law on extradition provided by the instrument. As is known, the end of existence of an extradition treaty is legally regulate the claims of the states for persons under their jurisdiction, a situation that does not reach the defendants, and any time who could be considered under the laws uruguayas.13. , On the other hand, no arrest can be seen from the product of an illegal act detrimental to the sovereignty of a foreign state. Quite the contrary, the existence of an integrated customs control area had the effect of legitimizing the actions of the Argentine officials. In fact, in the sub examine, from the joint exercise of control of borders is possible to recognize the clear will of the state Uruguay to authorize such control procedures to facilitate the achievement of the objectives proposed under the Treaty of Asunción (23.9810 law, without which corresponds to the Argentine judges judge of the hierarchy of rules under which Uruguay granted to foreign customs officials such facultades.14. That for the reasons given will confirm the statement used, insofar as it recognizes the competence of the Argentine federal judge Concepción del Uruguay to understand the crime of smuggling attempt import detected in the area of \u200b\u200bintegrated border control in the town of Fray Bentos, Eastern Republic of Uruguay, since its effects were place in national territory (art. 1, Customs Code, conc. art. 1, Cod. Penal). Therefore, it is stated from the special appeal and confirmed the original ruling. With costs. - Henry S. Petracchi.
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