One of the great differences between criminal law and other branches of the legal system is the subjective aspect. That is why our Supreme Court of Justice of the Nation maintains that respect for the constitutional principle of guilt entails the need to prove objective and subjective responsibility for the crime.
However, in the field of economic crimes (tax, foreign exchange, customs, money laundering, etc.), one notices that little by little the criminal liability of company directors is being objectified by punishing reckless behavior as if it were willful
Let me explain better: we are getting used to accusations such as, the president of a company “should have known”, “could not have known”, why in the consideration of judges and prosecutors who chairs the board of directors of a company has the duty to know and control absolutely everything, forgetting that in the tangled, dense, confusing and even contradictory Argentine regulatory reality, that is almost impossible and that functions and knowledge are generally delegated and disseminated in different areas.
Let us remember that no economic crime admits the reckless modality, but only the intentional one. The problem that arises is that, since fraud is not defined in our Penal Code, one resorts to the definitions provided by the authors. Transferring this definition, which was conceived in light of classic crimes (homicide, rape or similar figures), to economic crimes entails its weaknesses.
Indeed, of course it is not the same to prove the fraud of someone who kills and wants to kill another person, than the fraud of a manager who makes various decisions and some of them may go against the criteria of an organization. It is that if we say that fraud is knowledge and we understand knowledge as the coincidence between what one thinks and reality and that said reality is constructed mainly with the changing opinion of the different organizations (be it AFIP, BCRA, CNV, etc.), We will see that any decision that is contrary to the interpretation of the BCRA or AFIP will be an indication of a crime with presumption of intent.
Finally, a particularity that accompanies economic crimes and that differentiates it from classic crimes is that common sense is not always applicable to determine the psychological connection of the perpetrator with the result. Faced with this difficulty, judges and prosecutors use a model of a normative subject that personally knows and dominates all the regulations with which the company has to comply, without inquiring too much about what it really knew in the specific case.
That is why we dare to say that the determination of intent in corporate criminal law is losing individuality. More and more work is being done on the idea of a standard fraud that, instead of being directly proven, is attributed, presumed.
In other words, in economic criminal law, the cognitive element of intent is losing strength and is slowly replaced by a “duty or obligation to know” (all the regulations and the future interpretation of the body involved) which, it must be said, facilitates the proof and subsequent imputation of fraud. It is not the same to prove that the director of a company knew that he was interpreting a tax rule contrary to the criteria of the agency, than to prove that it is what he should have known.
Returning to the title of the note: the fraud in economic criminal law is being objectified and expanded to the detriment of a pillar with constitutional roots such as the principle of guilt. The premise according to which if there is ignorance there is no fraud has begun to falter. Even the proof of intent is avoided, replacing it with the duty to know. A kind of “You, sir, should have known and, if you did not, I presume that you wanted to, that you acted with intent”.
In a rule of law, malicious conduct must be attributed or imputed only in cases where it is shown that a subject acted with absolute disregard for criminal law. It is that the internal attitude of the person towards the legal right must be the border between an economic criminal offense and a mere regulatory breach.
*Emilio Cornejo Costas is the Lawyer in charge of the Legal Department of the Lisicki, Litvin & Asociados Law Firm.
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by Emilio Cornejo Costas
