By means of the Emergency Decree No. 62/2019 (“DNU No. 62/19” for its acronym in Spanish), the National Executive approved the procedural regime of the civil action of extinction of property over assets derived from, e.g., drug trafficking, smuggling, money laundering and corruption crimes. Basically, such regime creates a legal action of economic nature by which the Federal Government, in light of any well-founded suspicion of committing a serious crime, questions the property rights over an asset when such property rights do not reasonably correlate with the holder’s income, or of the bearer or the owner of the asset, or when such rights represent an unjustified increase in the investigated person’s estate.
In that regard, there may be some important aspects of this new regulation, regardless of the debate that may arise in regard of its constitutionality or of the eventual confirmation of the DNU No. 62/19 by the Federal Congress. Stated briefly, the DNU No. 62/19:
- Requires that the criminal judge previously issues a precautionary measure (an embargo or a confiscation, for example) over the assets because of the assets’ alleged association with the crime under investigation.
- Creates an attorney general’s office subordinate to the State Attorney General’s Office, with powers to initiate the proceeding before the Federal Court in Civil and Commercial Matters, with the participation of the Attorney General’s Treasury Office representing the Federal Government. The proceeding shall be autonomous and independent from any other judicial proceeding, cannot be combined with any claim, and shall be conducted under the rules for summary trials set forth in the Federal Code of Civil and Commercial Procedure, though with some special features.
- Sets forth that during the course of litigation of the procedure for the extinction of ownership, the management and maintenance of the property subject to precautionary measures shall be under the control of the Agency of Management of the State Property Administration Agency. The property may be sold in an anticipated manner when there is risk of perishing, deteriorating, depreciating or when the conservation of such property may cause excessive disbursements for the public treasury.
- Sets a statute of limitations of 20 years for the filing of the petition of extinction of ownership, which commences on the date that the property became part of the holder’s or the owner’s estate, or failing that, on the date of the alleged commission of the crime under investigation in a criminal court.
- Instructs the State Attorney General’s Office to carry out a comprehensive gathering of the criminal actions in which there may be property that could fall under the scope of a procedure of extinction of ownership.
Up until now, only the Criminal Courts had the power to order the confiscation or expropriation of property derived from serious crimes, such as corruption or drug trafficking, after the pronouncing of the final decision, which generally occurred after a long proceeding. The intention of the DNU No. 62/19 is vesting the judges with more efficient tools to try to recover the property derived from corruption actions, organized crime or other serious offenses.