No Statute of Limitations for Corruption Crimes

Recently, the Federal Court of Cassation, Room IV overruled the decision that applied the statute of limitations to a case related to surcharges in a state deal process and ordered the Criminal Oral Trial Court to proceed immediately with the trial.

In the case in question, which started in 1998, the payment of approximately 120 million dollars/Argentine pesos in concept of surcharges paid by the Argentine State  is investigated during the process of creation of the systems destined for collection, in which executives of a recognized multinational technology company and former officials of the Argentine Government are accused.

In May 2016, Federal Oral Court No. 3 declared the expiry of the criminal action upon the application of the statute of limitations, understanding that the case was affected by the guarantee of the reasonable period of time, thereby acquitting the defendants.

Both the district attorney and the Anticorruption Office –established as private prosecutor- challenged the decision in the Federal Court of Cassation, and this decision overruled the first instance ruling. In so deciding, Room  IV of Cassation, in two different votes, argued that:
 

1. The statute of limitation is interrupted by the determination of the oral trial (vote of Judge Hornos).
2. Crimes in which public officials are involved are not subject to the statute of limitations (vote of Judge Gemignani).
    

Finally, the Argentine Supreme Court of Justice (the “CSJN” after its acronym in Spanish) quashed the judgment on the basis of lack of a majority of grounds among the votes and ordered the Federal Court of Cassation to issue a new ruling.

On this occasion, on the one hand, Judge Gemignani upheld his view regarding the applicability of the statute of limitation for this type of crimes; on the other, Judge Hornos, in compliance with the instructions of the CSJN, added to his grounds that, by literal and direct application of article 36 of the Argentine Constitution, serious acts of corruption that result in enrichment and that are committed against the State are not subject to the statute of limitations.

Article 36 of the Argentine Constitution -incorporated during the constitutional reform in 1994- establishes that whosoever gets rich through the commission of a serious fraudulent crime against the State undermines the democratic system and, in accordance with the provisions of the 3rd paragraph of such article, acts against the democratic order are not subject to the statute of limitations.

On these grounds, after analyzing the criminal report, Judge Hornos concluded that on this hypothesis, a serious act of corruption is being judged, which caused enrichment to the detriment of the Argentine State. Consequently, Judge Hornos concluded that it is not constitutionally possible to apply the statute of limitations to this crime and ordered the oral trial to proceed urgently, agreeing with the criterion of Judge Gemignani and, thus, achieving the majority of grounds among the votes.