White-Collar Crime 2023 Comparisons

The Criminal Code of Argentina contains certain criminal offences recognised by the Argentine state. Additionally, there are special laws that determine types of crimes. Depending on the degree of seriousness, crimes are classified as felonies or as misdemeanours:

• felonies are serious crimes punishable by prison, disqualification and/or fines; and
• misdemeanours are less serious crimes, punishable by, for example, a fine or confinement for a few days; the procedure, however, is the same as that for major crimes.

The offence may be incorporated into a national formal law declared by parliament. Misdemeanours, meanwhile, may be contained in a local formal law declared by the province’s parliament. To comply with the rule of non-retroactivity, all these laws must be clear, precise and above all passed prior to the event, unless their application favours the accused.

Jurisdiction applies in relation to a particular territory. The offences can be federal, national, provincial and within the City of Buenos Aires; however, misdemeanours fall under the jurisdiction of the provinces or their cities. For example, crimes that threaten national security will be investigated by the federal jurisdiction, while crimes that threaten life will be investigated by the appropriate jurisdiction (national or provincial jurisdiction).

For a person to be convicted of a crime, two elements must be present:

• the performance of a prohibited act specifically defined; and
• a specified state of mind, whether intentional or negligent, on the part of the actor.

In some instances, an act of omission can constitute a crime, but only if the offence requires it, such as when a person is required to file a tax return. Unless it expressly regulates a negligent action, the second element of the system requires intent for all offences. Frauds, for example, admit only the intent to commit fraud, while injuries admit both mens rea and guilt.

These two elements must occur together, so once these elements have been met, whether the actor has any grounds for justification or exoneration will be evaluated. In the absence of this, the wrongdoer will be held criminally responsible.

Finally, if a crime is attempted but not committed, the attempt is typically regarded as implying a reduction of the criminal scale established for the attempted crime. The interpretation of said reduction has been discussed in case law. In Argentina, the majority position is the doctrine that contemplates a reduction of the minimum sentence by half and the maximum sentence by a third.

The Criminal Code regulates the statute of limitations in its Section 62, which applies throughout the country.

For crimes punishable by perpetual life imprisonment, the statute of limitations is 15 years. As for the remaining crimes, this will depend on the maximum penalty set for each crime. Nevertheless, the statute of limitations cannot be less than two years or greater than 12 years. Crimes sanctioned with disqualification are imposed with a five-year term if they are perpetual; if they are temporary, they are imposed with a one-year term. Finally, there is a two-year statute of limitations on offences that are subject to a penalty fee.

The period begins to run at midnight on the day of the act, or at midnight on the day the crime ends, if it is a continuing crime (Section 63 of the Criminal Code). In a statute of limitations, the running of the time period may be tolled, suspended or interrupted.

Suspension occurs when there are previous or preliminary pending issues or in special cases when a specific event occurs. For example, according to Law 27206, amended by Section 63 of the Criminal Code of Argentina, prescriptions begin for children once they reach the legal age of majority.

In Section 67, interruption is provided for various circumstances, including:

• the commission of another crime;
• the first call to a person seeking a statement for a crime under investigation;
• the accusatory’s request to open a trial;
• the summons to trial; and
• the issuance of a conviction, regardless of whether it is final or not.

All these cases depend on the Code of Criminal Procedure of each jurisdiction.

In Argentina, the principle of territoriality states that the enforcement authorities have jurisdiction to investigate criminal acts committed by nationals or foreigners on their territory or within their jurisdiction. This is governed by the principle of sovereignty.

The exception to this principle arises in cases in which Argentine authorities commit crimes outside their territorial jurisdiction as a result of the performance of their duties. When national values are violated, extraterritoriality is justified by the defence principle. The same applies to the prosecution and punishment of crimes such as bribery and crimes against humanity.

The Criminal Code is currently being revised. The bill contemplates amending how jurisdiction is governed and adding nationality and universal jurisdiction principles.

As a legal entity, a corporation can only act through its agents (directors, officers and employees). Normally, corporations are responsible for the crimes committed by their agents, managers, directors, partners and employees in the course and scope of their employment.

Therefore, a legal person can only be convicted of certain crimes. Law 27401, for example, establishes certain criminal offences such as for bribery, incompatible negotiations, illicit enrichment of officials, fake balance sheets and false reports. The Criminal Code also covers foreign exchange crimes and money laundering, while the Customs Code addresses smuggling offences. Finally, there are other special laws, which include taxes and social security resource crimes. In all cases, it is a requirement that the legal person be the one who has acquired the benefit following the crime.

To assign liability to physical persons, they must either:

• have acted or omitted to act in accordance with an obligation;
• have gained a benefit from the offence; or
• be appointed as a representative of the corporation during the criminal trial.

Therefore, it is not possible to apply penalties solely based on the person’s position.

In the case of merger or acquisition, the surviving entity may be responsible for the criminal offences committed by the acquired entity prior to the merger or acquisition, as described in Section 3 of Law 27401. A due diligence process could mitigate the criminal liability.

Various alternatives exist in the criminal process that allow a victim to participate in the process and claim financial compensation.

The first of these is the suspension of trial. This is only admitted for cases where the penalty does not exceed three years. In this case, the accused must offer compensation in accordance with their financial capabilities, not necessarily in relation to the damage under investigation. The victim’s acceptance or rejection of the offer is not directly related to the suspension of trial. According to Section 76 bis of the Criminal Code, if the victim accepts, the civil claim is discharged.

The second alternative is mediation or conciliation. Through this option, the parties may agree on obligations, including financial compensation. Once an agreement has been reached, it must be approved by the intervening judge.

In the above-mentioned cases, the accused has not acknowledged the facts. Once the provisions or agreements have been fulfilled, the criminal action will be dismissed.

In other situations, according to Section 23 of the Criminal Code and Law 27372, when a judge imposes a conviction (whether through criminal summary proceedings or not), the judge determines some condition for restitution of the money or assets in favour of the victims.

Victims may also seek compensation for damages in criminal and civil cases.

Another type of claim is the collective action pursuant to Article 43 of the National Constitution of Argentina. There is, however, no law regulating this process. The Supreme Court of Justice of the Argentine Nation issued a warning in the case of “Halabi” – due to the lack of regulation in this leading case, the judges warned that the local legislature was in default with the citizens.

In 2022, the San Isidro Federal Prosecutor’s Office entered into the first collaboration agreement since the relevant law was created in 2017. Through it, a company, by self-reporting and complying with certain parameters established in the regulations, could be exempt from criminal liability.

Also, in that year in the province of Mendoza, the first sentence under this law took place. The case, known as “Stroyproject”, accounts for the acquittal of the defendants as regards atypical conduct. Notwithstanding this, it is relevant to point out that integrity programmes were given great importance, both for the private and the public sectors, as a tool against corruption.

Regarding criminal tax legislation, there were two important antecedents. Within the framework of Law 27541, the Federal Court of the Province of Córdoba accepted the request for suspension of trial for the crime of aggravated tax evasion.

Due to the interpretation of Law 27653, this jurisdiction also extended the amnesty that said legislation provides, to all criminal types regulated in tax legislation, including tax-illicit associations.

Finally, a bill to modify the offence of money laundering, according to GAFI recommendations, has been introduced by parliament.

The Argentine criminal process is governed by an adversary system, whereby the investigator cannot judge the case. However, in the case of national and federal procedure, the trial judges can decide whether they or the prosecutor will be in charge of the investigation, except where the Criminal Code stipulates that prosecutors will conduct the investigation (such as when the perpetrator is unknown, and in cases of kidnapping and extortion). However, in most criminal proceedings, the prosecutor is a specialised unit. In addition, there are specialised units for complex crimes, cybercrimes, gender, human trafficking and flagrancy, among others.

Therefore, some prosecutors and judges may investigate at the beginning of the process; when the case is submitted to the court, these parties change for others but with the same area of expertise. The situation is different for the criminal complaint filed by the plaintiff, as this party may remain the same throughout the entire legal process. By following the adversary principle, impartiality is ensured, and those who must pronounce the final judgment must be unbiased.

After a final conviction, the case will be assigned to other judges who will monitor the execution of the judgment, particularly in relation to the resocialisation of convicted persons. In addition, these judges will also decide on various benefits for the convict, such as parole, supervised release, temporary release, etc.

There are no special rules for initiating white-collar investigations. The complaint may be filed by either the victim or any citizen who becomes aware of a crime. It may be filed with the police, the prosecutor or the judge. The investigation may also be initiated ex officio by prosecutors, by specialised investigators or by police prevention units. In the event that the authorities become aware of a fact, they must investigate the matter and proceed accordingly.

In accordance with the applicable criminal process, an investigation may be conducted by a judge or a prosecutor.

Each of these agencies has broad investigative powers as long as they are reasonable with regards to the facts under investigation. They may summon and take witness statements, request information from third parties, or order expertise.

Regarding the witness, every citizen or resident has the obligation to collaborate with justice. As such, if someone has been summoned, they have an obligation to appear; and if someone is required to provide information, they have an obligation to provide that information.

There are certain means of evidence that require a substantiated and reasonable court order. In general, these are measures that restrict some rights, such as:

• raids;
• the interception of correspondence or communications;
• the opening of devices; and
• the lifting of banking and tax secrecy, etc.

In these cases, if the prosecutor is responsible for the investigation, they will request the measure from the corresponding judge. Ultimately, the need for the measure depends on the degree of suspicion that exists regarding the holder of the right in question in relation to the facts to be analysed.

In accordance with Law 27401, legal persons are liable for certain crimes, such as for:

• bribery;
• incompatible negotiations;
• extortion;
• illicit enrichment; and
• falsified account documents.

In order to prevent liability, the law establishes certain conditions, one of which is the integrity programme (see more details in 2.5 Mutual Legal Assistance Treaties and Cross-Border Co-operation). This programme recommends the establishment of an internal investigation system in order to prevent crimes against this law. The system must respect all the rights of the person being investigated. Based on this concept, the corporation is not equivalent to a judge – for example, consent must be obtained in order to access the employees’ personal information. The consent can be obtained at the time of the investigation or earlier through mutual agreement.

Law 24767 establishes the criminal international co-operation programme. According to Section 1, the State will assist any state in investigating, judging and punishing. In the event that Argentina and the other state have a co-operation treaty, that treaty shall prevail. If not, co-operation will be subordinated to reciprocity in accordance with Section 3.

In order to extradite a person, the offence must exist in the two countries, and it must be punishable by imprisonment for at least one year, as a result of the average between maximum and minimum sentences. However, certain conditions in Section 8 do not apply – white-collar crimes are not among these conditions. The provisions of Section 11 establish the circumstances in which an extradition request will not be granted.

According to the General Direction of National and International Co-operation, the pacts subscribed by Argentina to other states are:

• Laws 24038 and 23729 (collaboration with Australia);
• Law 2239 (collaboration with Belgium);
• Law 17272 (collaboration with Brazil);
• Law 25460 (collaboration with Canada);
• Law 25348 (collaboration with Colombia);
• Law 26882 (collaboration with China);
• Laws 26782 and 25303 (collaboration with Korea);
• Law 25911 (collaboration with El Salvador);
• Law 23708 (collaboration with Spain);
• Laws 24034 and 25126 (collaboration with the United States);
• Laws 26196 and 26783 (collaboration with France);
• Laws 23707 and 23719 (collaboration with Italy);
• Laws 26137 and 26687 (collaboration with Mexico);
• Law 3495 (collaboration with the Netherlands);
• Law 25302 (collaboration with Paraguay);
• Laws 25307 and 26082 (collaboration with Peru);
• Law 26440 (collaboration with Portugal);
• Law 3043 (collaboration with the United Kingdom);
• Laws 26781 and 8343 (collaboration with Switzerland);
• Law 26611 (collaboration with Tunisia);
• Law 25304 (collaboration with Uruguay);
• Laws 25595 and 27405 (collaboration with Russia); and
• Law 27018 (collaboration with South Africa).

Additionally, there are regional pacts, including the Protocol of Mutual Legal Assistance in Criminal Matters of MERCOSUR (Laws 25095 and 26004) and the Convention of Mutual Assistance in Criminal Matters of OEA (Law 26139). The Convention Against Corruption of ONU (Law 26097) and OEA (Law 24759) are also examples of regional and multilateral agreements. Lastly, the Vienna Convention (Laws 12838, 17081 and 19865; and Decree 7672) applies to this subject.

As discussed previously, white-collar crimes begin as any other crime. However, it is usually third parties, such as the AFIP (Argentine Tax Authorities) or ANSES (Argentine Administration of Social Security), that file complaints. In the case of an ex officio investigation, these are specialised prosecutors.

In this context, Law 27401 establishes criminal liability for legal persons with respect to certain crimes, taking into account that this person can be exempted from criminal liability if they:

• comply with the integrity programme;
• inform regarding the facts involved; and
• return the benefit obtained from the crime as specified in Section 9.

Thus, the physical person who has criminal liability will also be held criminally liable beyond the company.

Furthermore, the legal person and the prosecutor’s office may enter into an effective co-operation agreement. This is a confidential agreement, under which the company will collaborate with the justice system to clarify and verify the facts.

In accordance with Section 23, the integrity programme outlines preventative measures that aim to reduce the likelihood of the crimes specific to that norm occurring. It contains some training, a code of ethics and protocols.

It is possible for the accused, in some cases, to fully repair or conciliate their actions in order to extinguish the action pursuant to Section 59(6) of the Criminal Code. This is common in cases of fraud offences, where the State is not directly damaged.

There is also an option to stop the trial when it is suspended for a period of one to three years in which the accused is required to comply with certain rules of conduct. These activities could include charity work, presenting once a month before the judge, taking courses, etc. Also, the accused must offer compensation in accordance with their financial capabilities. See 1.5 Damages and Compensation.

For this benefit to apply, there are two possible theories. The first theory establishes that the punishment scale to apply for the offence must be three years or less of imprisonment. According to the second theory, the accused cannot be convicted with a sentence of more than three years of imprisonment, regardless of the scale for the offence. This second theory requires the consent of the prosecutor.

Therefore, in order to request suspension, the accused must have no criminal record. Also, the suspension will not proceed:

• if a public official takes part in the crime while exercising their official duties;
• if the offence carries a disqualification penalty; or
• if custom and taxes are involved.

The criminal action will be terminated if the judge grants the suspension and the accused meets all the conditions.

Finally, a summary proceeding is another option. In this case, the prosecutor, the accused and the defence agree to avoid trial and to conclude the process with a penalty. The judge will then interview the accused and determine whether this should be approved.

This kind of proceeding is applicable to both criminal offences with and without a prison sentence. This agreement, however, will depend on the maximum penalty and the jurisdiction. As an example, in the national jurisdiction, the prison term is six years; whereas in the Buenos Aires province, the prison term is 15 years.

As per Law 27304, a person can voluntarily acknowledge the charges, which applies to certain crimes in particular. Examples of such crimes include:

• trade;
• possession and storage of drugs;
• customs crimes;
• crimes against the financial and economic order; and
• illicit associations.

Thus, if a person acknowledges their participation in an act and also provides relevant information regarding the manoeuvres and the third parties involved (and this information is confirmed), they will have a degree of attempted participation.

The collaboration will be interpreted according to Section 5 by virtue of:

• the information provided;
• the usefulness;
• the procedural moment in which it is provided;
• the seriousness of the crime in question; and
• the seriousness of the facts and responsibility of the accused who collaborated.

For subsequent control, all acts of collaboration must be registered. These types of acts are usually recorded.

Thus, the accused will enter into a collaboration agreement with the public prosecutor’s office, and the judge will approve this agreement. Prior to that approval, the accused will be interviewed to confirm whether they understand the situation. In such a case, the benefit of the reduced sentence will be granted, subject to the point at which the sentence is passed, as detailed in Section 11. As a result, the sentence cannot be based solely on the declaration of the accused.

The judicial rejection of the agreement will be appealable by the parties. Where the rejection is confirmed, everything that has been done will be reserved and may not be used against the accused collaborator or any other third party.

Finally, Section 14 provides that the accused is covered by the National Protection of Witnesses and Defendants Act.

The Criminal Code regulates fraud administration, which is a special type of fraud. For this criminal act to be applicable, it must be proven that the person who, by law, authority or legal act, is responsible for administering or caring for the pecuniary goods or interests of others is going to harm those interests in an attempt to gain a benefit or cause harm to them.

This type of fraud always requires mens rea as well as an additional purpose: a benefit for themselves or a third party. According to Section 173(7), the penalty is a sentence of imprisonment of one month to six years.

Sections 256 to 259 of the Criminal Code of Argentina establish bribery of public officials and influence peddling as crimes against the public administration.

There is one type of bribery and influence peddling that is passive. In this type of arrangement, a public official receives (personally or through an intermediary) financial or material benefits in exchange for a benefit. A second type of bribery is active bribery and influence peddling. In this case, a person (personally or through an intermediary) gives or offers any goods in order to receive some benefit from a public official. In both cases, the penalty will be imprisonment for one to six years.

In the Criminal Code, there are more punishments for when the action is taken in order to obtain benefits from judges or prosecutors, always directly or via an intermediary. The maximum sentence in the active case is 12 years in prison. For the passive one, however, the sentence ranges from four to 12 years of imprisonment.

In all cases, where the accused is a public official, apart from imprisonment, a permanent special disqualification is additional to a fine between two and five times the amount of the benefit.

The Criminal Code provides a mitigating type for public officials who receive or offer gifts as a result of their office. In this situation, the punishment ranges from one month to two years of imprisonment, and the disqualification ranges from one month to six years. For someone who is not a public official, the punishment ranges from one month to one year in prison.

Sections 260 to 264 of the Criminal Code define the embezzlement of public funds. The most relevant sections are:

• Section 262 for the deduction of funds as a result of negligence; and
• Section 264 for the unjustifiable delays in payments.

Section 265 establishes that negotiations with the exercise of public functions are incompatible. This type of offence involves actions committed directly in person or indirectly through an intermediary, and the penalties may include imprisonment, disqualification or a fine.

Illegal execution is another type of criminal offence under Section 266. In this case, a public official demands some contribution, intimidates, or abuses their position, with the higher position constituting the aggravating factor.

Finally, the Criminal Code contemplates illicit enrichment, in which the public official uses information obtained through the exercise of their office in order to gain profit. In this case, the penalty ranges from one to six years and the fine from two to five times the benefit. Moreover, under Section 268(2), if the public official fails to justify the origin of the funds or assets when duly required, they will be sentenced to two to six years of imprisonment and to a fine in accordance with the details set forth previously. A public officer who omits to submit the affidavit will be punishable with imprisonment of between 15 days and two years under Section 268(3). There is a perpetual disqualification in all of the above-mentioned cases.

Argentine legislation sets forth measures for the prevention of bribery and influence peddling. Accordingly, the legislature enacted Law 27401, which governs corporate criminal liability for crimes of this nature.

As mentioned in 2.6 Prosecution, corporations are not considered criminally liable when they implement a programme to prevent this crime, co-operate with the relevant investigations, and return the benefits. The programme includes actions, procedures to promote integrity, and control to prevent illicit actions. There should be a correlation between these functions and the corporate risks, dimensions and economic capabilities. Section 23 of Law 27401 describes the contents of the programme.

In some cases, when the corporation contracts with the national state, the programme may be mandatory. In the remaining cases, it is advisable for the programme to limit its liability. Therefore, if the corporation does not possess this, it will be criminally liable.

In the Criminal Code, a punishment is provided to those who are in a special position (director, member of the Statutory Audit Committee, shareholder, shareholder’s representative) or any person who, as a result of their employment, profession or function within an issuing company, supplies or uses privileged information for trading, listing, buying, selling or settling negotiable securities, by themselves of through an intermediary.

The penalty ranges from one to four years, with a fine equivalent to the cost of the operation and a disqualification of five years. Section 307 refers to this type. The aggravating type of the offence is described by Section 308, which provides a range of imprisonment between two and six years for criminals who take advantage of privileged information in a usual way and, as a result, benefit themselves or a third party. However, if the stock market has been severely damaged, or if the damage has been committed by those listed in Section 308(d), the maximum punishment is eight years of imprisonment and disqualification for the same period.

For negotiable securities or other financial instruments, Section 309(1) of the Criminal Code penalises transactions or operations that increase, maintain or decrease the price, by creating false news, faking negotiations, convening a meeting or forming a coalition between the main holders in order to portray greater liquidity or to negotiate a price. Other offences include offering securities in a manner that conceals true facts or affirms or suggests false facts. A prison sentence of one to four years, a fine equivalent to the operation, and a disqualification of five years is imposed in such cases.

Under Section 309(2), when the representative, administrator or auditor informs the partners or shareholders of important facts about the economic situation of the company by hiding or falsifying these facts, or when incorporating false or incomplete information in the balance sheets, reports or other accounting documents, the penalty ranges from two to six years in prison.

Section 310 establishes other offences, such as:

• performing financial activities;
• taking savings from the public on the stock market; or
• providing intermediation services in order to acquire negotiable securities without authorisation.

In such cases, there is:

• a prison sentence ranging from one to four years;
• a fine of two to eight times the amount of the operation; and
• a disqualification period of six years.

In addition, when it is widely spread, the minimum penalty will be two years.

According to Section 311, when employees and officials of financial institutions enter false data or mention non-existent facts to obtain a benefit or cause damage for themselves or for third parties, or when someone fails to establish or duly record any of the operations, they may be punished by:

• imprisonment of one to four years;
• filings from two to six times the amount of the operations; and
• disqualification of up to six years.

According to Section 312, a person or employee who receives money or any other economic benefit in order to conduct credit, financial or stock market transactions is punishable with imprisonment for one to six years and disqualification for up to six years.

Lastly, if legal persons intervene in these situations (Section 313), the punishments set forth in Section 304 will apply.

Title XI, Section 279 of Law 27430 establishes the penalties for the commission of tax crimes. All these crimes must be investigated and prosecuted by the public prosecutor or the private prosecutor, who is sometimes a tax and customs authority (AFIP).

According to Section 1, simple tax evasion refers to misleading statements, malicious concealment or any other trick or deception designed to evade national, provincial or city taxes of more than ARS1.5 million for each tax year. The punishment for this offence ranges from two to six years.

The punishment for aggravated evasion ranges from three years and six months to nine years in prison. The following four scenarios are possible:

• when the amount evaded exceeds ARS15 million;
• when legal or physical persons conceal themselves through different types of corporations and the evasion exceeds ARS2 million;
• when the obliged person fraudulently uses exemptions or tax benefits and the amount evaded is more than ARS2 million; or
• when false documents, such as bills, are used fraudulently to cause damage exceeding ARS1.5 million.

When the amount exceeds ARS1.5 million, the undue benefits range from three years and six months to nine years. The misappropriation occurs when the obliged person fails to deposit the tax withholdings within 30 days of receiving them. In these cases, the law stipulates a sentence of two to six years in prison.

Other offences relate to social security. The types of evasion found in this group include simple evasion, aggravated evasion, and misappropriation.

For the first, if misleading statements, malicious concealment, or any other trick or deception is used to avoid paying national, provincial or city social contributions of more than ARS200,000, the sanction is imprisonment ranging from two to six years.

The second occurs when the amount evaded is more than ARS1 million or when a third party conceals the real obligated person and more than ARS400,000 is evaded or exemptions are used fraudulently for the same amount.

The third involves imprisonment of two to six years with the same conditions as misappropriation taxes when the obligated person fails to deposit the detained sum.

Lastly, the Law addresses the most common tax offences – ie:

• obtaining fraudulent benefits;
• fraudulent insolvency;
• simulated debt settlements; and
• any changes to the registers.

The punishment for the first offence here may vary from one to six years in prison, and for the remainder may vary from two to six years in prison. This subject is discussed in more depth in Title III of said law.

The penalty for these offences is higher if they are committed by a public official. Moreover, this law recognises the criminal liability of the legal entity who benefits from the evasion, and furthermore imposes special penalties on those who collaborated in these crimes. Such cases are discussed in more detail in Section 15. The Law also allows the taxpayer to close the criminal case by paying the full amount of the claim within 30 working days after indictment.

The criminal liability or its termination does not affect the administrative sanction.

Finally, Laws 27541 and 27562, (see 1.6 Recent Case Law and Latest Developments) provide a payment plan for delayed taxes. The criminal action would be terminated if the obligated person paid the debt in this manner.

As per Section 300(2) of the Criminal Code, any representative (founder, director, trustee, etc) of a corporation who publishes, certifies or authorises false or incomplete financial and accounting corporate documents or provides false or incomplete information to shareholders, whatever the purpose, is subject to imprisonment from six months to two years. In the case of Section 300 bis, the penalty increases from one year to four years of imprisonment, as well as stipulates a fine from two to five times the false amount, intended to conceal the offences established in Sections 258 and 258 bis (bribery offences).

In the case of false or incomplete information in economic and financial corporate documents (balance sheets, memories, etc), a penalty will be imposed as established in Section 309. See 3.4 Insider Dealing, Market Abuse and Criminal Banking Law for more information.

Section 156 provides for penalties ranging from ARS1,500 to ARS90,000 and special disqualifications from six months to three years for the disclosure of confidential information without just cause. A fine from ARS2,500 to ARS30,000 is imposed under Section 159 for unfair commercials that attempt to attract or divert the attention of customers.

Section 309 defines transactions involving false information (fake news, fake negotiations, meeting of principles holders) as those that increase, maintain or lower the value of securities. See 3.4 Insider Dealing, Market Abuse and Criminal Banking Law for more information.

Accordingly, Law 27442 and Decree 274/2019 regulate civil and administrative liability (physical and legal persons) in the context of antitrust. These regulations also include assumptions, procedures and penalties.

Law 24240 regulates consumer protection and defence. Civil and administrative liability refers to physical persons and legal entities.

During the process established by law, if the authorities become aware of certain offences, they must report these to the criminal courts. This situation usually involves fraud, as defined by Section 172 of the Criminal Code. In this way, the Code contemplates an offence under Section 173(1) where someone defrauds another in respect of quality, quantity or substance of the goods delivered as a result of a contract.

As a result of Argentina signing the Budapest Convention, Law 26388 modified the Criminal Code. A number of cybercrimes are established within this context.

The provisions of Section 128 define what constitutes the production, financing, offering, trading, publishing, facilitating, disseminating or distributing of any representation of a minor under 18 years that involves explicit sexual activities or representation of explicit sexual activities involving minors. These crimes will be punishable by imprisonment for a period ranging from three to six years. Moreover, the following punishments will apply:

• for possession of the above-mentioned material, imprisonment of four months to one year;
• for possession to distribute, six months to two years; and
• for possession to distribute to minors under 14 years, one month to three years.

If the victim is a minor under 13, the penalty will be more severe.

Privacy violation is addressed in Section 153. It involves opening, unduly deleting, diverting the destination and intercepting an electronic communication. The violation is punishable by imprisonment for a period of 15 days up to six months. Where the information is disclosed or communicated to a third party, the sanction ranges from one month to one year. Where a public officer commits the crime, the penalty, apart from imprisonment, is to be disqualified for double the amount of imprisonment time. 

The provisions of Section 153 bis establish a range of imprisonment, from 15 days to six months, for unauthorised access to a restricted system or digital information. The imprisonment increases from one month to one year if the system is public or finance services. 

Section 157 establishes the violation of the confidentiality systems to access personal data. The sanctions in this case may range from one month to two years in prison. If a public officer commits the crime, the penalty will include a special disqualification of one to four years (in addition to prison time).

In the same way, Section 183 of the Law includes damages to IT systems. This carries a penalty of imprisonment of 15 days to one year. In the case of damage to public IT systems or public services system, the sanction is imprisonment from three months to four years.

The Law also regulates cyber fraud. Statistics indicate that this offence is increasing in frequency. Section 173(16) defines fraud as any manipulation of a computer system that alters the normal operation or transmission of data. Depending on the severity of the offence, the punishment ranges from one month to six years in prison. It does not require deceiving the victim; the deception is on the system, which results in economic harm to the victim.

Law 19359 regulates the exchange of money in accordance with the norms established by the National Central Bank. This law punishes:

• all operations carried out without authorisation from the institution;
• false declarations regarding exchange transactions;
• failure to rectify declarations when they are needed;
• all operations that do not adhere to the legal conditions (quantity, money, amount, etc); and
• any actions that violate the exchange regime.

The sanctions depend on the number of times the person commits the offences set forth in Sections 2, 3 and 4 of the Law. Control and the beginning of the judicial process will be handled by the National Central Bank until the trial, but the sanction will be imposed by the court.

As for the customs regime, the smuggling laws or other customs-related offences are set forth in the Customs Code, particularly in Sections 860 to 996, which include first the offences and then the infractions. Smuggling has a significant impact on customs, and can be both simple and aggravated (depending on the number of persons involved, the level of violence, the type of transportation, the nature of the goods, and so on). Smuggling or service customs can result in imprisonment ranging from two to eight years. For the aggravated modality, the sentence ranges from four to ten years in prison. In the case of smuggling drugs, the penalty ranges from three to 12 years in prison, but for operations involving nuclear or explosive elements, the sentence ranges from four to 12 years in prison.

Moreover, the Code regulates negligent use of certain documents, as well as attempts and concealments. In other words, the Code sanctions customs infractions. These include:

• minor smuggling;
• inaccurate asset statements;
• assets without statements; and
• certain transgressions.

The penalty for these types of tax evasion is a fine, and depends on the amount of the tax. Other market and financial offences are covered in 3.4 Insider Dealing, Market Abuse and Criminal Banking Law.

Section 277(1) establishes concealment. This implies:

• collaborating to hide a person who previously committed a crime;
• hiding, withdrawing or removing evidence about a crime;
• acquiring or receiving items as a consequence of a crime;
• when the obligated person who has to promote a criminal action does not do it; or
• collaborating in order to ensure the benefit of the crime.

The penalty for this offence is imprisonment for a period of six months to three years.

However, there are mitigating circumstances for when the person acquiring products may suspect a crime; as well as aggravating circumstances relating to the seriousness or benefit of the crime, and if the person is a public official.

In accordance with 277(4), some situations are exempt from criminal liability, such as when the person is a relative or has a special gratitude, provided that their participation is not intended to provide or obtain profit, or it is an unusual situation.

Under Section 210 of the Criminal Code, any person who participates in an association with the purpose of committing an offence will be punished with imprisonment for a period of three to ten years. The head of the association will be sentenced to at least five years in prison. 

In other words, participation is established by Sections 45 to 49 of the Criminal Code. It mentions various categories of authorship, for example:

• the perpetrator and the co-perpetrator, when there is division of tasks; and
• those who carry out an action necessary for the crime to be committed.

In all these categories, the parties will receive the same sanction as the perpetrator of the crime.

Where the action is performed by a secondary participant, the punishment will be reduced. If participation occurs after the crime, concealment will result, as discussed in 3.11 Concealment.

Crimes involving white collars, illicit associations and other crimes may occur concurrently. The same rules of participation may be applicable to all types of crimes.

Title XIII of the Criminal Code governs money laundering. In Section 303, imprisonment from three to ten years and a fine from two to ten times the amount of the operation are provided when someone converts, transfers, manages, sells, encumbers, disguises or in any other way places in the market goods amounting to more than ARS300,000 that originated in a previous illicit act, with the possible consequence of those goods acquiring a lawful appearance in the market.

Paragraph 2 of this section regulates situations where the perpetrator may be in an aggravated situation because of their frequency or role as a public official. Furthermore, paragraphs 3 and 4 provide mitigating circumstances in the event of intermediation or where the objective amount is not exceeded. Lastly, paragraph 5 provides that if the preceding crime had been committed outside the territorial scope of the Code, jurisdiction would be conferred upon it.

In Section 313, if a legal person is found to have obtained a benefit from the crime, it may receive different types of sanctions, such as a fine or suspension. Section 304 discusses the other options.

By virtue of this offence, the judge is empowered to forfeit all goods and objects used in the money laundering. As a result, in order to sentence a physical or legal person for money laundering, the judge must demonstrate that the goods or money originated from a prior crime.   

The State created a particular entity with autonomy and financial authority to analyse third-party information and prevent money laundering, terrorist financing and other complex economic financial crimes. This is known as the Financial Information Unit (FIU).

Law 26683, in its Section 15, stipulates that the obligated subjects must inform the FIU about their clients. These subjects include financial entities, insurance companies, accounts, etc. In addition, according to Resolution 489/2013, these subjects are obligated to inform the unit of any suspicious activities based on the principle of “know your client”.

For this reason, such subjects could request certain information from their clients – for example, as banks must report all suspicious activities to the FIU, they could request information about an atypical accreditation in the client’s account. If the client does not inform, the bank could impose sanctions, such as freezing funds. As described above, the bank must also report the situation to the FIU, which could request additional information (from the bank to the client), conduct an investigation and possibly provide criminal justice intervention when asked to become involved.

It is the responsibility of the obligated subjects to keep the information received under this law confidential. The obligated subjects may be penalised if they fail to comply. Moreover, the FIU can impose different fines for non-compliance. The criminal administrative regime is established in Chapter IV of Law 25246.

Congress has also approved different laws which allow for the whitewashing of undisclosed assets. The objective of these types of laws is to ensure that residents inform the government of their assets, so that the nation can collect taxes and the payer can take advantage of that declaration. For example, the AFIP has extended tax benefits to those who disclose assets and apply for real estate developments in accordance with General Resolution 5253, as it pertains to Law 27679. Thus, the tax aliquot varies according to when the assets are disclosed. To conclude, whitewashing is the result of undisclosed assets, and money laundering is the result of a crime.

The defences for white-collar crimes vary. Some involve the lack of any requirements for determining a type of crime, such as lack of benefit for the accused in incompatible negotiations, or when there is no mens rea, such as in fraud offences.

There are also some justifications that may be invoked by the defendant as a defence. The state of need is one justification. If, for example, a corporation loses its crops due to rain, it cannot sell its production or generate income, and, as a result, cannot pay its employees’ salaries, taxes or social contributions.

Moreover, another defence may be available when full payment and the relevant conditions are met for tax debts resulting from evasion or fraud. By using this defence, criminal liability is cancelled. See 1.6 Recent Case Law and Latest Developments.

In addition, the implementation of a special programme by a legal entity may function as a defence and extinguish the legal entity’s criminal liability. See 2.6 Prosecution.

There are no specific exceptions to white-collar crimes. They include lack of action (for example, a statute of limitations or an atypical offence) or lack of jurisdiction. As a result, no exceptions are made for particular industries or sectors. The State, however, must pass a law if it wishes to make an exception for a particular situation, industry or sector, such as by allowing them to pay no taxes.

There are some provincial criminal procedure codes, as well as the Federal Criminal Procedure Code, that allow prosecutors to decide not to investigate certain minor cases, though this decision is at the prosecutor’s discretion. Although not an exception, this may be considered.

Self-disclosure and co-operation could, based on the evidence provided by the defendant, lead the judge to impose the minimum penalty possible.

Apart from self-disclosure and co-operation, the repentant regime may also apply to special offences. Where the accused recognises participation and provides information, and all this is confirmed, they will be punished with a minor sanction according to the attempt scale. See 2.8 Plea Agreements.

Finally, the case law also recognises natural punishment. In this case, the accused may be declared innocent or guilty, but no punishment will be applied because they have suffered serious damage as a result of the commission of their crime. The application of some punishments may be disproportionate because the punishment must be proportionate to the damage and the level of culpability of the defendant.

Whistle-blowers, witnesses and repentants are covered by a National Protection Programme, which safeguards their life and physical integrity. See 2.8 Plea Agreements and 4.3 Co-operation, Self-Disclosure and Leniency.

Law 25764 protects witnesses and accused persons when they are charged with offences outlined in Sections 142 bis (human trafficking), 170 (kidnapping for ransom) and other crimes related to organised crime and institutional violence, as well as when the investigation makes it advisable.

The programme involves whistle-blowers, witnesses, repentants and their families. Protection can be requested for the prosecutor or ordered by the court that receives the statement. The court will determine the type of protection to be provided, such as moving to another house, provision of bodyguards, or temporary accommodation.

Moreover, Law 27304 addresses the protection of the repentant, and Law 27401 addresses the corporate integrity programmes as mentioned in 2.6 Prosecution and 3.3 Anti-bribery Regulation.

In the Argentine legal system, the presumption of innocence is governed by Section 18 of the National Constitution. All residents should be presumed innocent until proven guilty in a fair trial. Therefore, the burden of proving guilt and dispelling the presumption of innocence falls on the State. The Constitution, and international treaties such as the San José de Costa Rica Treaty, will be violated if the opposite is true.

The innocence of an accused person is destroyed when the judge is absolutely certain that the accused committed the crime. Conversely, an acquittal occurs when the judge determines that the prosecution has failed to prove the defendant’s guilt.

Section 268(2) of the Act discusses this principle in relation to illicit enrichment, as this offence establishes the public officer’s obligation to explain the source of the patrimonial enrichment. See 3.2 Bribery, Influence Peddling and Related Offences for more information. It was understood that this offence was unconstitutional in some cases because it affects the innocent and the maxim of nemo tenetur se ipsum accusare. Nevertheless, the burden of proof may be considered dynamic and justified based on the type of offence.

When the accused is found guilty, the court will impose a penalty. In the case of a jury trial, the jury will determine the defendant’s guilt, but the judge will determine the punishment.

To determine this, the court will examine the particular circumstances of the accused (Section 41 of the Criminal Code), including whether they have been recidivists, the damage they have caused, their conduct, etc. If a legal person is found guilty (Section 8, Law 27401), these conditions will be assessed in relation to the integrity programme.

Thus, the court imposes the penalty based on the scale of the offence as well as the mitigating and aggravating circumstances. It is essential that all punishments must be reasonable and well-founded.

Depending on the jurisdiction and the opportunity, some judges impose a shorter period of imprisonment than the one established for the type of crime and founded in the loss caused, in relation to culpability and harm. This situation is discussed in cases where this is not regulated, since the legality principle and parliamentary volition may be infringed.

Finally, in the case of criminal summary proceedings, the accused enters into an agreement with the prosecutor, which will be approved by the judge. Upon entering into the agreement, the accused becomes aware of the penalty and must accept it.