Capítulo III. De la aplicacion y disposiciones especiales

The concepts and provisions of the Penal Code shall be applicable to the crimes and misdemeanors covered by this Law in all matters not modified or specifically addressed by it.

In addition to the aggravating circumstances of criminal liability contained in the Penal Code, the following are also aggravating circumstances for the purposes of this Law:

a)The offender being the owner or employee of national or international transport companies, if the violation is committed making use of vehicles belonging to said companies.

b)The offender being a public official or customs employee of the public administration, a member of the Armed Forces, of the National Police, of the Treasury Guard or a Customs Agent.

c)The offender belonging to groups organized to carry out smuggling or to defraud the State.

d)That the violation is linked to activities tending to harm national security or public health.

When the act is committed by an officer or employee of a legal person, for the benefit thereof, in addition to the criminal liability incurred by the perpetrators and other participants, the legal person shall be subject to the fines and civil liabilities incurred by them, and in case of recidivism, the same authority hearing the violation shall order the judicial dissolution and liquidation of said legal person.

Of knowledge of the commission of crimes.

Customs public officials or any public servant who as such have knowledge of the commission of the crimes to which this Law refers and do not report it, shall be sanctioned in accordance with the Criminal Code.

If the act were committed by customs public officials, Customs Agents, or members of the Armed Forces, the National Police, or the Treasury Guard, or with their participation, the penalty for them shall be increased to twice that prescribed by this Law for the crime or misdemeanor in question.

On special rules.

Without prejudice to the general rules established in the Criminal Code or in the Code of Criminal Procedure, the following shall be observed in the proceedings at issue, whether they refer to crimes or misdemeanors:

a)The customs valuations (aforos), determination of taxes and appraisals corresponding to the merchandise, property or articles subject to the violation, carried out by the customs authorities in accordance with their procedure, shall in all cases serve to determine the type of the violation, as well as the penalty and other items for the application of this Law.

b)The merchandise, property, articles, vehicles or other property used in the commission of the violation shall remain deposited in the possession of the customs authorities at the order of the judicial authority hearing the respective procedures; consequently, any authority seizing the objects shall send them to the nearest customs authority. Upon receiving them, the customs authority shall proceed to their valuation to establish whether the administrative procedure described in the second paragraph of Article 6 of this Law should be followed or whether a complaint regarding the commission of a crime should be filed before the respective authorities. When the amount of the seized property exceeds that established in Article 6 of this Law, the complaint shall be mandatory and must be filed within a time limit not exceeding five days.

c)When the merchandise, property or articles subject to the crime of customs fraud are easily perishable or decomposable, the customs authority, with authorization from the competent judicial authority, shall proceed to sell them using for such purpose the most expeditious mechanism, after having performed the customs valuation (aforo), and keeping the proceeds of the sale on deposit. Verification of compliance with any applicable non-tariff requirement for their importation or compliance with all legislation in force for their commercialization in the country, as applicable, is an indispensable requirement for the judge to authorize the sale.

In cases where the competent judicial authority does not authorize the sale, the customs authority must proceed to the immediate destruction of the merchandise, property or articles that are the subject of the commission of the crime. The judge must be present at the destruction proceeding and leave a record thereof in the record.

In the case of merchandise, property or articles that are the subject of the crime of customs smuggling, or special cases of customs smuggling, and that do not evidence with the merchandise declaration submission to a customs regime, the Public Prosecutor's Office shall proceed to request judicial authorization for their total destruction.

The authorization must be requested within the [incomplete phrase in the original] may be returned to the consignee or importer and, with respect to said request, the judicial authority shall grant a hearing to the interested party, if any, for a time limit of two days to present arguments and offer the means of evidence it deems pertinent. The means of evidence offered must be carried out within a time limit that in no case may exceed five days and the judge is obligated within that same time limit to verify that the merchandise, property or articles comply with the non-tariff provisions for their importation and all legislation in force for their commercialization in the country. The judge must decide within the following five days and otherwise shall incur liability.

If within the three days following receipt of the complaint, no person claims ownership of the merchandise, property or articles, their total destruction must be requested, recording said fact. In this case the judge shall approve the destruction without further proceedings, ordering that it be carried out within the following five days. The judge must be present at the proceeding, drawing up a record evidencing verification thereof and details of the destroyed merchandise, for procedural purposes.

For property that can be disassembled, destruction implies that it cannot be reassembled or sold in parts.

If the judge rules that there are no grounds for destruction of the merchandise, he shall order that it remain in the deposit of the customs authority until the main proceedings are concluded.

d)When the merchandise, including vehicles, property or instruments obtained in crimes of customs smuggling, which were subject to seizure or confiscation for the same cases established in the preceding paragraph and which by their nature cannot be destroyed, they are subject to the provisions of the Asset Forfeiture Law (Ley de Extinción de Dominio), Decree Number 55-2010 of the Congress of the Republic.

If they are weapons, medicines or property which under other laws have specific non-tariff regulation, the provisions of said laws shall apply.

e)The fines referred to in this Law shall be in favor of the Ministry of Public Finance and shall enter the common fund.

f)The seized merchandise, property or articles which, notwithstanding the procedures indicated in the preceding paragraphs, remain in the customs premises, [may] only [be returned] by the competent judge when a judgment of acquittal has been issued and it is final.

In the case of the commission of the crime of Customs Fraud, when a convicting judgment has been issued and confiscation of the merchandise has been decreed as an accessory penalty, they shall remain at the disposal of the Superintendency of Tax Administration -SAT-, which must submit them to public auction, in accordance with the provisions of this Law.

This Decree shall enter into force eight days following its publication in the Official Gazette.