According to the authors, there is an urgent need to confront organized crime. And one of the mechanisms to achieve an effective result is the identification, location and seizure of criminal assets. An initiative by civil society organizations is promoting a law that establishes a rational, efficient and transparent system for the administration of recovered assets.
(For eldiarioAR - This is a joint note with Dr. Sebastian Casanello, Federal Judge)
One of the ways to bring criminal justice closer to society is by making it transparent and creating mechanisms for citizens to participate in determining the destination of assets recovered from organized crime. Today there is an international consensus that States, through their different institutions, must not only prosecute these types of organizations, but also identify their assets and recover them, to prevent the continuation of criminal activities and use their profits to repair the damage caused to victims and society.
Assets confiscated from criminal organizations can become part of the State's coffers in two different ways: in the form of money after auctioning them off or through a reuse mechanism directed by the State itself with the broadest participation of society, to provide feedback and develop new challenges.
But in order to carry out this type of policy, it is necessary that public representatives, together with the majority of ordinary citizens, become aware that there is an urgent need to confront organized crime and that one of the world-proven mechanisms for achieving an effective result is the identification, location and seizure of criminal assets.
It is also necessary and urgent to take seriously the imperative to compensate victims and society as a whole for the activities carried out by these organizations. Activities such as drug trafficking, human trafficking, sexual/labor exploitation, extortion, etc., are crimes that, in addition to causing visible damage (physical and economic), generate other damages that are invisible and that usually place the State in a dual position of victim-victimizer (whether due to its tolerance, acquiescence or complicity).
The idea that our rights and freedoms are ensured under the care of the State is based on the principle of mutual benefit and fundamentally on the principle of trust to achieve that benefit. The proliferation of criminal organisations, regardless of the territory, erodes the trust placed in the State and makes its relationship with society deficient.
Criminal organizations and the mafia seek to delegitimize the State in relation to its main interest, the economic one. But it happens that many times in order to achieve this they must follow paths that for them are only temporary and utilitarian: controlling that other types of crimes are not committed, giving usurious loans to people who cannot access credit, paying for health services, carrying out works that should be carried out by the State, etc. The mafia expands to the extent that the public is delegitimized and shown to be ineffective. Therefore, the best option is for the State to rediscover its reason for being, public and universal, hand in hand with society, so that it is not only a spectator but also becomes the protagonist of the improvement and strengthening of institutions, generating greater rights and responsibilities.
The Argentine Penal Code establishes which behaviors are worthy of punishment. The codes of procedure of the provinces and those that govern at the federal level regulate how trials must be conducted in order to arrive at these punishments, respecting due process. In their most recent versions, these place particular emphasis on the objective of resolving conflicts and repairing the damage caused to victims and society as a whole. That is why the recovery of assets and profits produced by criminal activities should occupy a central place.
The current panorama of the Argentine Republic displays a large number of laws, decrees and agreements that regulate what to do with seized and confiscated assets. However, many are obsolete, incomplete or overlap with each other. Let us briefly review the most relevant ones.
Laws
Law No. 20,785 “Law on assets subject to seizure in criminal cases” was passed in 1974 and regulates how judges in charge of criminal cases in which assets are seized should dispose of them, depending on the condition of the asset. For example, according to the law, weapons should be delivered to an “Army Arsenal Command or the nearest military unit” (sic), although in 2021 and for a long time now, the National Agency for Controlled Materials has existed and, much earlier, the National Weapons Registry.
In 1980 during the last civil-military dictatorship, Law 22,129 established modifications to Law 20,785, particularly to article 3, paragraph e) and f). The first of the new paragraphs mentions that hijacked aircraft should be handed over to the aeronautical authorities; The second paragraph mentions that any other seized property that was not specifically mentioned in the law but that could deteriorate or suffer damage, after six months, should be auctioned off.
The next modification to Law 20,785 occurred twenty-eight years later and was through Law 26,348. It established that the aeronautical authorities in charge of the storage of aircraft should try to auction them off and/or sell them off after six months. Also in that new law, it was determined that seized vehicles could be compacted and disposed of as scrap metal.
The last modification occurred in 2012 through Law 26,764, which provided that bank deposits linked to judicial cases in the Autonomous City of Buenos Aires would no longer be made in the City Bank and would be deposited in the National Bank.
Agreements
The Judiciary, through the Supreme Court of Justice of the Argentine Nation (SCJN), and the Public Prosecutor's Office (MPF) also prepared instructions on how to dispose of seized property.
In the case of the institution that brings together and directs the prosecutors of the Argentine Republic, in 2009 the then Attorney General instructed federal criminal prosecutors that in cases of human trafficking they should request judges to be able to order the use of the properties linked to the crime in question to be able to provide accommodation to the victims or as a future guarantee of a "possible penalty and/or monetary sentence as established by article 23 of the Penal Code (amended by law 25.815)".
The article referred to in the Attorney General's decision - Article 23 of the Criminal Code - determines that "in all cases where a conviction is handed down for crimes provided for in this Code or in special criminal laws, the same will decide on the confiscation of the things that have been used to commit the act and of the things or profits that are the product or benefit of the crime, in favor of the national State, the provinces or the municipalities, except for the rights of restitution or compensation of the injured party and third parties." In Argentina, as in many other countries, criminal proceedings on complex crimes such as human trafficking, drug trafficking, money laundering, etc., can take some time before reaching a conviction (for the sentence to become final, if appeals are filed, it may take a while longer).
As regards the Judiciary, the Supreme Court of Justice of Argentina issued two resolutions in particular. In 2013, through resolution No. 1/2013, it created the General Database of Seized and/or Confiscated Assets in Criminal Cases under the jurisdiction of the National and Federal Justice, obliging all courts to register the seized assets so that they remain under the control of the General Secretariat of Administration through the Internal Management and Authorization Directorate and the Systems Directorate of the Supreme Court itself.
Five years later, another resolution -No. 2/2018- recognized that addressing crime with effective recovery measures reduces the negative impact it causes in society, "especially in cases of organized crime and corruption that degrades the country's institutions, particularly the public administration. In this sense, with measures such as those adopted related to the recovery of assets obtained from criminal activities, the population directly benefits. Hence, the importance that the legal system gives to the social purpose of the goods that have been used to commit the act or the proceeds thereof.”
The MPF then approved a new Regulation of the effects seized and confiscated in criminal cases. It calls for the rapid sale at auction of the confiscated objects so that their proceeds enter the accounts of the CSJN itself, the possibility is contemplated that it provisionally disposes of the seized movable property -for example, cars- and that, after appraisal, it arranges the provisional delivery to dependencies of the Judicial Branch, security forces or, even, entities with public welfare purposes.
Through agreements, the MPF and the CSJN made modifications and updated a law that in its central aspects the national legislators have not modified for more than forty-eight years. But presidential decrees are also added to this.
Decrees
In 2011, through Decree 826, the Registry of Seized and Confiscated Assets during Criminal Proceedings was created within the scope of the Registry Affairs Secretariat of the Ministry of Justice and Human Rights. In 2019, then President Mauricio Macri signed the decree of necessity and urgency No. 62/2019, which established the creation of a well-known tool to combat organized crime: the extinction of domain. Without a just title, the assets would become the property of the State, with the objective of financing policies and equipment for the security forces. The decree was questioned for having been issued exceeding the powers of the Executive Branch. These criticisms, added to the lack of consensus, led to the norm being of little use.
Money, assets and use
In May 2021, in the Argentine Republic, according to data provided by the Ministry of Justice and Human Rights of the Nation, there are more than nine thousand assets - including money, aircraft, boats, cars, real estate, weapons and different manufactured goods - seized by the Federal Justice. More than ninety-five percent of the assets are in judicial or private deposits, deteriorating over time, generating monetary losses (due to the rental of storage space, custody and other marginal expenses).
The over-accumulation of norms (laws, agreements and decrees) outlines a scenario of enormous complexity, little rational and inefficient. Added to this is the transition still in progress from a judicial paradigm only interested in the arrest of people to another, promoted at an international level, where the emphasis is placed on the economic aspect of crime and the recovery of criminal assets. This change implies not only a cultural change but also the acquisition of new skills by judicial operators: the traditional profile of a jurist has become obsolete. That is why current experiences of reusing seized and/or guarded assets are sporadic, isolated and respond exclusively to the initiative of magistrates, who together with representatives of civil society, dare to travel through little-explored territory, inspired by supralegal norms (Constitution and international conventions).
The policy of recovering assets is becoming stronger day by day. Fortunately, the mass of recovered assets is now much larger than in previous years and that is why a new question has arisen: what to do with them. The validity of an absolutely outdated law prevents having a rational and efficient system of asset conservation and administration. As a result, seized assets tend to be seen as a problem rather than an opportunity. The assets that were reused and that had civil society as a protagonist are exceptional. This is why a group of Argentine organizations - ACIJ, Circolo Giuridico and Fundación Multipolar - together with the leadership and experience of the Italian association Libera, Associazioni, nomi e numeri Contro Le Mafie, through the Bien Repósito project (which has the financial support of the European Union) - decided to promote the approval of a bill that establishes in our country a rational, efficient and transparent system of administration of recovered assets. It is the result of the work of different sectors of the State and civil society to reach a broad agreement that allows progress in the process of confronting organized crime through the recovery of its assets but with a social orientation, which puts citizens first. In times where it seems necessary to re-legitimize the action of the State, this initiative seeks to do so hand in hand with the people.
What is particular about experiences of social reuse such as those that occurred in Italy - and increasingly replicated by other countries - is that they initiate a virtuous circle of empowerment and joint work between society, victims and the State, regenerating confidence in the latter and weakening, in return, the mafias.
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