White-Collar Crime 2019

Last Updated October 21, 2019

Argentina

Law and Practice

Authors



Estudio Durrieu Abogados is the largest law firm in Argentina specialising in criminal law, white-collar crimes and asset recovery, whether as defence counsels or as private prosecutors. The firm also has an extensive network of affiliates throughout the country and abroad, enabling it to provide comprehensive assistance on any matter, both nationally and internationally. Clients include individuals, closely held companies and publicly traded multinational corporations. The firm is capable of providing consulting and legal services in English and French. It is a member of FraudNet, the International Chamber of Commerce’s network of lawyers specialising in anti-fraud and asset recovery, and the American and French Foreign Affairs Offices in Argentina have recommended the firm for potential inquiries from their citizens.

Argentina is organised as a federal and republican state, divided into 24 local jurisdictions (23 provinces and the City of Buenos Aires) apart from the Federal Government. Substantive laws apply to all jurisdictions and are passed by the Federal Congress. In this regard, crimes are mainly covered by the Argentine Penal Code (APC), and in specifics statutes. The APC does not make distinctions between felonies and crimes, but the procedural codes of each province usually have different proceedings according to their penalty scale. On the other hand, it is possible to divide the offences into local or federal offences, depending on the interest of the Federal State in pursuing the crime or regulating an aspect related to the crime (eg, currency counterfeiting or money laundering are federal offences, but local tax fraud or corporate fraud are local state crimes).

Notwithstanding, the City of Buenos Aires and every province can enact local misdemeanours (called “contraventions”) as infractions punished with days of prison or fines.

Intent is required in all crimes, unless the contrary is stated. Some specific crimes may require an additional or specific intent component. Negligence and recklessness are punished only in specific and reduced situations. As the Argentine system is based on civil law, full accordance between the conduct and the law’s description of the crime is mandatory. Criminal law usually punishes active conduct, but certain specific omissions can be described as punishable.

In general terms, Section 62 APC establishes that the statute of limitation period shall be calculated according to the maximum sanction that is specified for each offence. There are certain specific limitations to that general rule. For instance, the statute cannot exceed 12 years, nor can it be under two years. The period is two years for crimes that are punished only with a fine.

Moreover, the criminal code establishes that certain acts within the proceedings put this period on hold or standby. According to APC Section 67, the term of the statute of limitations is interrupted only by:

  • the commission of another crime;
  • the issue of an indictment;
  • charges brought against by the prosecutor after the investigation is finished, thus initiating the trial phase;
  • the summons to trial; and
  • the judgment of conviction, even if it is not final.

In every case, the time shall begin to run at midnight on the day the crime has been committed or, in the case of a continuing offence, the day on which the crime concluded. 

Furthermore, according to case law, the period of the statute of limitation can be extended when and if the acts of a crime are part of a pattern or practice, or an ongoing conspiracy – eg, when it comes to a “continuing crime” or, in other words, when the criminal has the plan to commit a crime during a certain period of time. In that scenario, prosecutors consider that the statute of limitations period begins to run as of the last criminal conduct/unlawful act or when the defendant reports accountability.

In addition, there are certain circumstances that shall provoke a suspension of the term, with the period for the statute of limitations continuing when the circumstance or suspension cause finishes. The most applicable reason for the suspension of the statue of limitations is if any perpetrator or accomplice of the crime is a public servant. While the public servant is in his functions, the term will be suspended for all persons that intervene in the crime until he abandons his public functions. APC Section 67 also establishes other reasons for suspension, such as prejudicial disputes or the victim’s adult age in sexual harassment cases.

Argentine enforcement authorities have jurisdiction for crimes committed inside Argentina’s borders or in a place subject to its jurisdiction. They may also investigate crimes that have an impact on the territory of Argentina, or that have been committed abroad by Argentine officials while on duty. In addition, Argentina has jurisdiction over bribery (crime ruled in Section 258 APC) if it has been committed abroad by Argentine citizens or legal entities with domicile located in Argentina. The foregoing is related to a recent modification introduced by Law No. 27,401, regarding corporate criminal liability to meet international standards.

The criminal liability of legal entities is established for specific offences, such as money laundering (Section 304 APC), financial crimes (Section 313 APC), smuggling (Section 875 of the Customs Code) and tax fraud (Section 16 of title XI of Law No. 27,430), among others. In addition, Law No. 27,401 ruled on corporate liability for the bribery of government officials, accounting fraud, the illegal enrichment of public officers and employees, and transactions that are prohibited for public officials.

Corporations shall be automatically liable for the illegal conduct of any agent or employee; in other words, there is strict liability. It does not matter if the employee is acting on behalf of the corporation or not – the key circumstance is if the corporation obtains a financial benefit, direct or indirectly. According to Section 9 of Law No. 27,401, corporations are not punished if they “spontaneously” report the crime, give back the benefit obtained to authorities and have a well-designed compliance programme.

In addition, managers’ liability should not be automatic when the entity is liable. Nevertheless, when the crime is very serious regarding its extension and damage (circumstances that usually apply to white-collar crimes), charges are also brought against management since prosecutors believe that the crime “should not have taken place but with the knowledge” of the management. Prosecutors must prove that the management participated in the commission of the crime, actively or by omission. White-collar crimes usually require intent, so prosecutors usually use criminal theories that extent liability, such as “wilful blindness" and dolus eventualis.

Argentine legislation does not have any policy regarding a preference over pursuing entities instead of individuals; prosecutors are compelled to investigate every person involved in the crime.

Finally, in the event of a merger or acquisition, case law establishes that corporate liability will continue on the new entity incorporated from the acquisition or merger. Said rule was later included in Section 3 of Law No. 27,401, referring to corporate liability for corruption acts.

The victim can request civil damage or torts regulation within the criminal procedure. Nevertheless, such procedures are usually pursued before civil courts – in general terms, through an ordinary process where a victim has to sue the defendant and offer evidence of the damage and the cause-consequence relation between the defendant’s act and the economic loss or damage. A current investigation before criminal courts may help to prove and obtain compensation in a civil jurisdiction, but both could be pursued independently. The fact will be considered as proven before the civil judge only when there is a final sentence in a criminal matter.

Legislative modifications in recent years have introduced new aims to the traditional criminal procedure, particularly regarding the victim’s status. In this sense, when a perpetrator asks for a probation or any plea bargain, he must offer a “reasonable” compensation to the victims according to his economic capacity or possibilities. The victims have the opportunity to accept or refuse it. The victim can maintain the right to pursue civil damage compensation or tort before civil courts only in the case of a refusal. 

Another recent modification of the procedure is related to conciliation with the victim. In fact, an agreement with the victim and its full damage compensation could serve as a cause for the extinction of the criminal investigation (Section 59 of the APC).

Class actions are not legislated for in the Argentine framework, nor is victims’ compensation in white-collar crimes. The Argentine Constitution (Sections 42 and 43) and some important case law precedents (known as CSJN “Halabi” and "Mendoza") have recognised collective litigation as a method for claiming for certain rights violations, consumer infractions or environmental conflicts, but there is no precedent where the method has been applied for compensation from an offence.

Finally, it is relevant to mention a recent civil procedure established for asset recovery in cases of white-collar crimes connected with corruption acts. In this sense, on 21 January 2019, the Argentine Executive Branch issued Decree No. 62/2019, implementing a Procedural Regime for Civil Action that applies to non-conviction-based asset forfeiture in favour of the State. The procedure regime is applicable to fraud against the Public Administration, racketeering, bribery, influence pleading, incompatible dealing in the exercise of public office, the illegal enrichment of a public official, money laundering and certain forms of smuggling, among others.

During 2018, a high-scale corruption case rocked the Argentine judicial system. The case is known worldwide as “the Notebooks Scandal”, due to the discovery of eight school-style notebooks belonging to a federal government driver in Buenos Aires, with the details of 12 years’ worth of bribery payments he delivered to Argentine government officials of the highest ranks, counting on the participation of certain construction companies. All the companies’ directors involved and the public officials mentioned in the notebooks have already been indicted, and most of them entered into plea bargain agreements. The case has recently finished the pre-trial or investigation stage. The amount of money involved in this investigation made the Government and the Congress speed up the issue of Decree 62/2019 regarding the asset recovery procedure, as described in 1.5 Damages and Compensation. It also made companies reconsider their compliance policies, in order to prevent acts of corruption acts from their own employees/managers.

As mentioned in 1.1 Classification of Criminal Offences, Argentina is a federal state divided into 23 provinces and the City of Buenos Aires. Each local jurisdiction and the Federal State have their own enforcement authorities and criminal procedure code. In general terms, proceedings are adversarial, except in the federal jurisdiction, where judges mainly conduct the investigation (inquisitorial system). It must be noted that the latter is under amendments in order to meet adversarial standards.

Hence, a judge is the main authority that may receive a complaint or take notice of an offence committed, but he will need a prosecutor’s initial impulse on the criminal investigation. Also, prosecutors can initiate an investigation before a judge if they collect preliminary grounds or reasonable suspicion of an illicit act.

In addition, there are usually specialised criminal prosecutors according to the subject matter. The most important specialised federal prosecutions office in white-collar crimes is the PROCELAC (Public Attorney of Economic Criminal and Money Laundering – https://www.mpf.gob.ar/procelac/), which handles complex financial crimes or collaborates with other prosecutors in their resolution. Governmental agencies such as the Federal Administration of Public Revenue (AFIP), the Financial Information Unit (FIU) or the Anti-Corruption Office (OA) can request the initiation of an investigation and also act during it as private prosecutors.

The Argentine criminal procedural federal regime allows the victim of a crime to bring charges for white-collar crimes regardless of the charges that can be brought by a public prosecutor. Depending on the nature of the crime being investigated, each district/subject has its own enforcement authority and can require the collaboration of federal enforcement offices.

Civil/administrative liability can be brought by enforcement agencies, regardless of a criminal investigation. The AFIP, the OA, the Central Bank (BCRA), the Securities Exchange Commission (CNV) and the FIU, among others, can impose civil or administrative sanctions related to the same facts that are under investigation by a prosecutor. In addition, there are special units that investigate money laundering and other business crimes within the AFIP and the BCRA.

Criminal investigations are initiated when any information on a crime reaches the courts or the Public Attorney's office. Also, investigations can be initiated by a report submitted by law enforcement agencies, any citizen or victim of a crime, or ex officio by prosecutors/judges. Anonymous reports can initiate an investigation if they give enough information to determine a crime has been committed. The steps and the guidelines that rule any investigation are in the Argentine Criminal Procedure Code for the federal jurisdiction, and in each criminal procedure code of each province.

The prosecutor or investigating judge should not require information or documents from a corporation under investigation because it could violate the corporation's right against self-incrimination. In practice, this sometimes happens. If the corporation collaborates spontaneously with the investigation, it is considered as a mitigating circumstance and, under certain circumstances, can even preclude the punishment.

When the government decides to raid a company and seize documents, the warrant must always be issued by a court, and must be reasonably grounded.

Regarding employees or third parties, a prosecution can demand a corporation employer to provide information about an investigated individual, and request it to provide documents as long as there is no violation to the right against self-incrimination; if the government decides to raid the employee's office or home, the search warrant must be grounded, too.

According to regulations from the Anti-Corruption Office contained in Law No. 27,401, companies should have protocols of action in place, approved by the board. It is suggested that internal investigation protocols should specify how interviews should be conducted (their registration through electronic or magnetic devices), the reason for the interview, the possibility of accessing lockers, inspections of clothing and bags, narcotics consumption tests, video surveillance, and access policies for the labour tools that the employer has given to the worker (ie, cell phones and emails), with the express stipulation that such devices can be supervised by company officials at any time.

Furthermore, Section 9 of Law No. 27,401 on Criminal Corporate Liability and Section 60 of Law No. 27,442 about Antitrust both establish immunity for legal entities that self-report; the latter law also grants the right to individuals. In both cases, the self-report must be “spontaneous” – ie, not motivated by a state investigation. Its absence should be considered by the judge as a mitigating element.

Every form of co-operation responds to formal mechanisms of requirements. Each way of supplying information and providing judicial co-operation will depend on whether there is a treaty between the states involved; if there is not, Argentina will apply Law No. 24,767, which dictates the methods of international judicial collaboration in cases where there are no special regulations.

There are also regional and multilateral treaties that contain specifications regarding collaboration in criminal matters. For instance, Argentina has signed the Mutual Assistance Collaboration Protocol in Criminal Affairs for MERCOSUR (Laws No. 25,095 and 26,004), the Inter-American Convention about Mutual Assistance in Criminal Affairs (Law No. 26,139), the United Nations Convention Against Transnational Organized Crime (Law No. 25,632), the United Nations Convention Against Corruption (Law No. 26,097), the Inter-American Convention Against Corruption (Law No. 24,759 / 27,430) and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Law No. 25,319).

The Argentine Financial Intelligence Unit is part of the Egmont Group, and the Federal Revenue Authority exchanges information with its foreign counterparts on a regular basis.

As mentioned in 2.1 Enforcement Authorities and 2.2 Initiating an Investigation, investigations generally begin with a report or complaint. Usually, companies or individual victims file a complaint when they find out an offence has been committed against them. Also, prosecutors or enforcing agencies may initiate the investigation by a written report or complaint (for example, the Federal Administration of Public Revenue used to start the majority of tax fraud cases by filing a complaint).

As mentioned in 1.4 Corporate Liability and Personal Liability, there is no policy or preference to pursue entities instead of individuals; when charging a crime, the criminal procedural rules apply the same standard for companies and individuals. Therefore, an individual or entity will be charged with an offence if – according to Section 294 of the Argentine Criminal Procedure – there are sufficient and reasonable grounds of the offence’s commission and its/his/her/ intervention in such acts. The same standards are also applied in steps further along the procedure, such as the issue of an indictment or the remission of the investigation to oral trial. Differences may arise from the dissimilar criminal liability requirements regarding companies and individuals (as mentioned in 1.4 Corporate Liability and Personal Liability), but there are no different rules or guidelines relating to charging or formal accusation acts.

Generally speaking, the Argentine criminal justice system does not admit agreements to defer prosecution or pre-trial diversions.

Notwithstanding, Section 76 bis APC regulate an alternative system, named “suspension of the trial under supervision”, which is generally referred to as “probation”, and is only available for individuals (ie, not applicable to legal entities). This mechanism applies for less severe crimes (punished with fewer than three years of prison as a maximum). It is forbidden to suspend the process in tax fraud cases, smuggling cases, or offences involving public servants, so there are only a few white-collar crimes cases that could be subject to probation. If applicable, the defendant must request the benefit from the judge (which will sometimes will need the consent of the prosecutor), offer reasonable economic compensation to the victim, and comply with community service and other rules of “good-conduct” ordered by the judge, during a period of one to three years. After compliance with all those conditions, the defendant will be dismissed and the criminal action will be extinguished.

Generally speaking, in the federal criminal procedure, prosecutors and defendants come to an agreement where the defendant recognises their personal intervention in the offence and the prosecutors negotiate a lesser conviction (not greater than six years in prison). This mechanism is ruled in Section 431 bis of the Criminal Procedure Code, and is also known as an “abbreviated trial”. No oral trial or plea is held, since it is only a written agreement between those two parties. So, instead of a plea agreement, it actually works as a conviction-agreement. A court must then ratify the agreement and issue the sentence accordingly. Also, the court must verify whether or not the defendant was under coercion, and whether or not the conviction settled is proportionate. If there are multiple defendants, all of them should agree with the conviction and the acknowledgement of facts.

Since the implementation of Law No. 27,304, certain defendants can collaborate with the investigation in exchange for a reduced conviction. This tool is applicable for crimes related to acts of corruption or complex investigations, with Law No. 27,304 expressly mentioning white-collar crimes such as fraud against the Public Administration, influence pleading, bribery and other crimes against the Government Administration, money laundering and related economic crimes, and conspiracy or illicit association, among others. Law No. 27,401 allows similar agreements for corporations, but just for corruption.

The collaboration agreement could be arranged during the first or pre-trial stage of the criminal procedure, which ends with the remission of a formal accusation to trial. Only the prosecutor and the defendant (with the assistance of his/her defence attorney) are parties in the collaboration agreement, but then the intervening magistrate must validate the agreement. As a rule, the benefit from the collaboration should be expressed in the sentence, but also the benefit could help towards the defendant’s release if he is under preventative detention throughout the investigation. If the defendant knowingly provides false information, he could be punished with four to ten years of prison, according to Section 276 bis APC.

The most generic corporate fraud offence is set forth in Section 173, paragraph 7, APC, and punishes anyone who "by law, authority or legal act, was in charge of the management, administration or care of pecuniary goods or interests of others, and in order to procure for themselves or a third party, an improper profit or whoever in violation of their duties damages the interests entrusted or abusively compels the owner of these,” with imprisonment from one month to six years. This offence requires intent and the additional purpose of procuring a benefit for the perpetrator or a third party. The offence also requires an economic damage or loss in order to be considered as having been committed.

Sections 256 to 259 APC establish the bribery of public servants and influence peddling as crimes against the Public Administration. Both active and passive offences of bribery are punished. Passive bribery is when a public servant receives gifts, money, payments or any kind of assets from an individual in exchange for a benefit. Active bribery refers to any individual who personally or through an intermediary gives or offers any gift for the purpose of obtaining any of the conducts punished by Sections 256 (passive bribery) and 256 bis, first paragraph (influence peddling), and shall be punished with imprisonment from one to six years. If the gift is given or offered with the purpose of obtaining any of the conducts described in Sections 256 bis, second paragraph (qualified influence peddling) and 257 (qualified passive bribery), the punishment shall be imprisonment from two to six years. If the culprit is a public official, special disqualification from two to six years shall also be imposed in the first case, and from three to ten years in the second case.

The standard punishment is quite low, ranging from one to six years' imprisonment and a fine of two to five times the unlawful benefit obtained. It is an aggravating circumstance when the public officer is a judge, a public prosecutor or any other person related to the Judicial Branch.

Other crimes related to corruption are set forth in Sections 260 to 268 of the criminal code, such as the embezzlement of public funds, incompatible negotiations with the exercise of public functions, and illegal exactions. In these cases, the punishments are aimed at public servants, so a person who does not perform that charge or function could not be punished with the same penalty.

Non-public officers are punished in Section 174, paragraph 5 APC, which applies to “whoever commits fraud to the detriment of any public administration.” In any case, the punishment is imprisonment of two to six years, in addition to a fine of two to five times the benefit involved in the transaction.

Argentina has ratified all the international treaties against private and public corruption, as well as the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

Sections 22 and 23 of Law No. 27,401 about Corporate Criminal Liability state the main features of a compliance programme to prevent corruption. The fulfilment of a diligent and effective compliance programme is considered as a mitigating circumstance, but a corporation can obtain immunity from prosecution (Section 9) if it also reports a crime “spontaneously” and returns the benefits or goods illegally obtained. Section 24 of Law No. 27,401 also sets out that the compliance programme is mandatory if the corporation has any public contact. There are no criminal or administrative offences for not implementing such compliance programme, but it is highly recommendable to have a programme in place, since it could be considered as a criminal defence for the corporation and its management.

Insider trading is described in Section 307 APC, which sets forth imprisonment of one to four years, a fine equivalent to the amount of the operation, and special disqualification of up to five years for a director, member of an inspection body, shareholder, shareholder’s proxy and anyone who, for his work, profession or function within an issuing company, by himself or by an intermediary, provides or uses privileged information to which they had access during their activity, for the negotiation, purchase, sale or liquidation of negotiable securities. Aggravating circumstances are set forth in Section 308.

Section 309, paragraph 1, APC establishes the punishment for securities fraud as imprisonment of one to four years, a fine equivalent to the amount of the operation, and disqualification of up to five years for a person who:

  • performs transactions or operations that raise, maintain or lower the price of negotiable securities or other financial instruments, using false news or feigned negotiations, or meeting or colluding with the main holders in order to produce the appearance of greater liquidity or to negotiate it at a certain price; or
  • offers negotiable securities or financial instruments, disguising or concealing facts or true circumstances, or affirming or suggesting false facts or circumstances.

Title XI in Argentine tax Law No. 27.430 establishes the penalties for the commission of tax crimes. The law punishes tax evasion, simple or aggravated, the wrongful use of tax subsidies, the fraudulent obtainment of tax benefits, tax misappropriation, fraudulent tax insolvency, fraud in payment, the fraudulent alteration of records, and the misappropriation of social security resources. The law requires intention to commit the crime; negligent or reckless conduct is not punished. There is no specific obligation on individuals or companies to prevent tax evasion, but the penalties are greater if any public servant takes part in any tax crime.

Regarding accounting fraud, Section 300 APC applies a punishment of six months to two years' imprisonment for: “The founder, director, administrator, liquidator or trustee of a corporation or cooperative or of another collective person, who knowingly publishes, certifies or authorizes an inventory, a balance, a profit and loss account or the corresponding reports, minutes or memoirs, false or incomplete or informs the assembly or meeting of partners, with falsehood, about important facts to assess the financial state of the company, whatever the purpose sought to verify it.” In similar terms, an offence is established in Section 309, paragraph 2, and Section 3011, for corporations that are regulated by Argentina’s Securities Exchange Commission (CNV).

Cartel and unlawful competition crimes are covered in APC Section 309, which punishes with imprisonment of one to four years, a fine equivalent to the amount of the operation and disqualification of up to five years, whoever “performs transactions or operations that raise, maintain or lower the price of negotiable securities or other financial instruments, using false news, feigned negotiations, meeting or colluding with the main holders, in order to produce the appearance of greater liquidity or to negotiate it at a certain price.” Regarding other cartels and competition offences, there are only antitrust civil sanctions, which are set forth by statute 27.442.

According to Law No. 24,240 about Consumers’ Protection, there are only civil sanctions for companies. In this sense, Section 50 of Law 24,240 sets forth that, if the commission of an offence is detected during the civil/administrative process, it will be reported to the competent magistrate on criminal matters. Consumers can report illicit conduct from companies when their damages are caused as the result of a “generic” fraud, but the proceeding and complaint will be separate. This generic fraud is punished according to APC Section 172 with imprisonment of one month to six years. There are some special fraud crimes that could apply, such as Section 173, paragraph 1 of the Penal Code, which punishes fraud in the substance, quality or quantity of goods. In addition, Section 199 punishes the adulteration or falsification of drinking water or food or medicinal substances intended for public use or consumption of a group of people in a way that is dangerous to health. Such crimes only allow personal liability.

Although Argentina has signed the Budapest Convention, no autonomous business cybercrime has yet been ruled on in Argentina. The recent developments are related to Law No. 26.388, which was passed in 2008 and amended regular crimes such as damage, fraud and violation of privacy, among others, in order to encompass cyber-means of committing such crimes, or as aggravating circumstances.

For instance:

  • cyber-damage established by section 183 of the criminal code set forth that whoever alters, destroys or disables data, documents, programs or computer systems, or sells, distributes, circulates or introduces into a computer system any program designed to cause damage, shall be punished with imprisonment of 15 days to one year;
  • under the title “violation of secrets and privacy” of the criminal code, some data protection offences were punished; and
  • any conduct that commits fraud by manipulating any electronic means is punished with a maximum of six years of imprisonment (section 173, paragraph 16, of the criminal code).

Smuggling and any other customs-related offences are punished by sections 863 to 875 of the Customs Code. Smuggling is punished with imprisonment of two to eight years, or four to ten years when there are aggravated circumstances (such as the smuggling of drugs, guns or forbidden goods, or offences involving a value higher than ARS3 million, among others).

In addition, Law No. 19,359 punishes any violation of the exchange/trade regulation established by the Central Bank. The sanctions considered in said law for any infraction vary from a fine of up to ten times the amount of money involved, a prison sentence of one to four years (which could be replaced by a fine), a prison sentence of one to eight years for a second offence, and suspension or cancellation of the legal entity in the most severe cases. Law No. 19,359 also sets forth corporate and management liability towards the imposed fines.

Please see 3.4 Insider Dealing, Market Abuse and Criminal Banking Law regarding other financial and trade sanctions.

Concealment is regulated in APC section 277, paragraph 1, and applies to any act of collaboration after the execution of a crime perpetrated by another, in order to hide, withdraw or remove from observation, or cover or keep from sight, evidence or benefits from crime. Some other aggravating or mitigating circumstances are established in APC, section 277, paragraphs 2-4. Accordingly, the penalty for concealment may vary from one month to four years in minor circumstances, or from one to six years when there are aggravating circumstances.

According to APC sections 45 and 46, any person who has provided any substantial assistance or relevant co-operation to the perpetrator of a crime, without which it would not have been possible to carry out said crime, shall be punished with the same measures as the perpetrator. In addition, the same punishment shall be imposed upon any person who has directly instigated another person to commit a crime.

When a person co-operates in any other way in the crime, providing secondary assistance or being involved due to a promise made prior to the perpetration, he shall be punished with a reduced punishment. If the assistance was made after the crime was committed and no prior promise of help was made, it is considered as a concealment (see 3.11 Concealment).

Otherwise, conspiracy is not criminalised in the same terms as in the US, but a similar offence is committed by “any person who takes part in an association or a group of three or more people with the purpose of committing an offence” (section 210 of the APC). In that case, the defendant shall be punished with imprisonment from three to ten years, for the mere fact of being a member of the association, independent of whether or not the crimes were committed. The “head or organiser” is subject to imprisonment for no less than five years.

Since 2012, money laundering has been punished as an autonomous offence according to APC sections 303-306. Also, self-laundering is criminalised, and all offences are admitted as predicate offences of money laundering.

According to APC section 303.1, any person who converts, transfers, manages, sells, charges, disguises or in any other way puts 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, shall be punished with a prison sentence ranging from three to ten years and a fine. According to APC section 303.4, the same assumption will be considered a “minor” money laundering offence (with imprisonment from six months to three years) if the amount of involved goods is less than ARS300,000.

As stated by the Argentine Constitution and the criminal procedure regime, the burden of proof is always on the accuser. The law also establishes that, in order to prove money laundering, a predicate “illicit act” must be demonstrated. In this regard, the prosecutor has to determine the existence of a previous illicit act that has resulted in the acquisition of assets or money. The probable cause standard is sufficient to prove this element, which means that no final ruling or sentence is required to prove the predicate offence.

Additionally, it is necessary to prove the mens rea of the accused of money laundering, as the crime requires intent (purposely or knowingly).

Apart from the criminal law regulation, there is a specific Law No. 25,256 (amended by several acts, mainly Law No. 26,683) to prevent money laundering, which has also created an administrative authority to control a whole system for Anti-Money Laundering and Countering Financing of Terrorism (the AML/CFT Law). In the AML/CFT Law, several financial institutions and other business (21 different kinds of activities or groups of professionals) are considered “obliged subjects” so have been placed under strict anti-money laundering obligations, such as controlling their client profile, monitoring their economic activity and reporting any suspect transaction to the Financial Information Unit (FIU).

At the same time, the law establishes the FIU as the main administrative authority to enforce the preventative regime, and to impose sanctions on those obliged subjects who do not comply with the reporting obligations or who fail to maintain confidentiality in such matters. The FIU also enacts specific regulations for each obliged subject, in which it details the obligation for each activity. So there are lots of FIU resolutions in that sense.

The FIU is responsible for evaluating any infraction of the anti-money laundering regime and imposing the corresponding fine. The administrative process consists of a written proceeding (detailed communication of the accused infraction, the defendant’s deposition, production of evidence, closing arguments). The final ruling of the FIU can be challenged at the Court of Appeals on Federal Administrative Matters. Every process is confidential but the final decision regarding the administrative sanctions is public. The duty of financial confidentiality must be unconditionally preserved, unless a judge’s order deems otherwise. Breaching this duty is punishable with prison and a fine ranging from ARS50,000 to ARS500,000.

Finally, any failure related to formal obligations (such as collecting due information on know-your-client requirements) is punishable with a fine of between ARS10,000 and ARS100,000. Failure to report a suspicious operation (SOR) shall be punished with a fine of one to ten times the total amount of the assets involved.

Argentine law does not provide any specific defence for white-collar crimes, but general defences for individual criminal liability may apply. In this regard, a defendant may argue personal circumstances as recognised in section 34 of the APC to exclude his liability – for instance, error or ignorance for which he is not responsible, coercion or threat, discharge of duty or the lawful exercise of a right.

As mentioned before, a comprehensive and adequate compliance programme may contribute as a mitigating circumstance, but it will not automatically prevent the corporation or individual from any prosecution or conviction on white-collar crimes. The corporation can be excluded from penalty if, in addition to having an adequate compliance programme in place, it self-reports the crime according to section 9 of Law No. 27,401 on Criminal Corporate Liability and section 60 of Law No. 27,442 on Antitrust (see 2.4 Internal Investigations and 4.3 Whistle-blowers' Protection for further information on immunity).

In investigations on tax frauds, the full payment of the accused amount, with interest, could sometimes operate as a defence to cancel criminal liability.

In Argentina, there are no industries or sectors that are exempt from white-collar crime restrictions; neither is there the minimis exemption in the federal procedure regime, nor in the white-collar crimes law. In money laundering and tax fraud, a minimum amount of money must be involved in order for the offence to be criminalised (ARS300,000 and ARS1,500,000, respectively). Offences below this amount shall not be punished but could be covered by civil sanctions.

Certain provinces’ criminal procedure codes allow the prosecutors to decide not to investigate certain minor cases, but this decision is based on the prosecutor’s criteria and the principles of the adversarial system; it is not legislated as a defendant’s exception.

According to Law No. 27,304, the sentence of the defendant shall be reduced if he provides accurate and verifiable information to avoid or prevent the perpetration of a crime, clarifies the purpose of the investigation, reveals the identity of other offenders and discloses significant information that contributes to expediting the investigation or revealing the location of victims, assets or proceeds, amongst other matters. Similar regulations are set forth for legal entities by section 16 of Law No. 27,401.

As for corporations, section 9 of Law No. 27,401 on Criminal Corporate Liability and section 60 of Law No. 27,442 on Antitrust both establish immunity for legal entities that self-report (see 2.4 Internal Investigations for further information on immunity). In both cases, the self-report must be “spontaneous” – that is, not motivated by a state investigation. Additionally, the fulfilment of a compliance programme is required before the crime is committed.

Section 13 of Law No. 27,304 establishes a whistle-blowers' programme for anyone who gives additional information to the investigation related to the proceeds of crime. A reward is established, related to the assets seized. Similar elements are set forth in decree 62/2019 on non-conviction forfeiture of assets.

There are no direct regulations on whistle-blower protection. Law No. 27,401 on the criminal liability of corporations requires in section 23 that corporations should consider implementing whistle-blower protections in order to have an appropriate compliance programme in place. The Anti-Corruption Office has issued some guidelines on this matter.

The public prosecutor and parties acting as “private prosecutors” (see 2.1 Enforcement Authorities) have the burden of proof to obtain a guilty sentence, while the defendant has the burden of proof of any affirmative defence. Trial judges must always rule based on “innermost conviction”; if there is a reasonable doubt, the defendant must be acquitted.

According to section 41 of the APC, upon sentence the court must analyse the subjective and objective circumstances of the individual accused. Before passing a sentence, the magistrate must take direct knowledge of the defendant, the victim and the circumstances of the event to the extent required for each case. As for corporations, Law No. 27,401 sets forth in section 8 that the judge should consider the conduct of the corporation before and after the crime was committed – for instance, whether an appropriate compliance programme was implemented, and whether the crime was investigated and mitigated.

Estudio Durrieu Abogados

Av. Córdoba 1309, Pisos 6º, 7º y 8º
C1055AAD Ciudad Autónoma de Buenos Aires
Buenos Aires
Argentina

+54 11 4811 8008

+54 11 4814 0911

durrieu@durrieu.com.ar www.durrieu.com.ar
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Estudio Durrieu Abogados is the largest law firm in Argentina specialising in criminal law, white-collar crimes and asset recovery, whether as defence counsels or as private prosecutors. The firm also has an extensive network of affiliates throughout the country and abroad, enabling it to provide comprehensive assistance on any matter, both nationally and internationally. Clients include individuals, closely held companies and publicly traded multinational corporations. The firm is capable of providing consulting and legal services in English and French. It is a member of FraudNet, the International Chamber of Commerce’s network of lawyers specialising in anti-fraud and asset recovery, and the American and French Foreign Affairs Offices in Argentina have recommended the firm for potential inquiries from their citizens.

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