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El 22 de enero se publicó en el Boletín Oficial el Decreto N° 62/19, de necesidad y urgencia, por medio del cual el Presidente de la Nación puso en vigencia el régimen procesal de la acción civil de extinción de dominio. A riesgo de ser calificado de defensor de corruptos, en la presente nota analizo la validez constitucional de la norma desde dos puntos de vista diferentes: el de la forma, es decir, la utilización de un decreto de necesidad y urgencia (DNU) para aprobar dicho régimen procesal, y el del fondo de la cuestión, esto es, si es conforme con la Constitución privar a alguien de su propiedad como consecuencia de estar sospechado de ser autor de un ilícito, sin que exista condena firme.

Extinguiendo por decreto

Los decretos de necesidad y urgencia fueron incorporados a nuestro ordenamiento constitucional en la reforma de 1994. Si bien con anterioridad a eso habían sido aceptados por la Corte Suprema, la constitucionalidad de los mismos estaba fuertemente cuestionada por un sector de la doctrina, postura con la que coincidí en su momento. El artículo 99, inciso 3, establece como principio general que el Poder Ejecutivo no puede, bajo pena de nulidad absoluta, emitir disposiciones legislativas. Es decir que el principio general es la prohibición. Esto es importante, ya que a la hora de interpretar si un DNU es válido o no, habrá que tener en cuenta que las excepciones son de interpretación restrictiva. La presunción, en todos los casos, será en contra de la validez de un DNU. Seguidamente, el artículo dispone que solamente en casos excepcionales en los que fuera imposible seguir el trámite ordinario de sanción de las leyes, el Presidente puede dictar DNUs.

Es decir, que los DNUs son excepciones a la regla general que impide que el Presidente dicte normas cuya sanción corresponde al Congreso. En cualquier país racional, el primer párrafo del artículo citado sería innecesario, ya que, si la Constitución otorga una facultad al Congreso y no al Presidente, es obvio que este no puede ejercer esa misma facultad. Pero en nuestro país hasta las verdades de Perogrullo necesitan consagración constitucional y aun así no se cumplen.

Para poder eludir la prohibición general, deben darse circunstancias excepcionales que impidan seguir el trámite ordinario previsto por la Constitución para la sanción de las leyes. Cabe preguntarse entonces si en este caso existen esas circunstancias excepcionales. En los considerandos del Decreto 62/19 se indica que el proyecto de ley oportunamente presentado “lleva así más de dos (2) años de trámite legislativo sin resolución, por lo que urge otorgar a la Justicia herramientas eficaces para desfinanciar a las organizaciones criminales y resguardar el patrimonio estatal”. Agrega que, toda vez que el Congreso se encuentra en receso, “se verifican las circunstancias de carácter excepcional a las que hace referencia el inciso 3 del artículo 99 de la Constitución Nacional, que hacen imposible seguir los trámites ordinarios previstos para la sanción de las leyes”.

El Poder Ejecutivo confunde la falta de aprobación de un proyecto con la imposibilidad de seguir los trámites ordinarios para la sanción de las leyes. El proyecto de ley fue tratado en la Cámara de Diputados y aprobado con modificaciones (los considerandos erróneamente hablan de “media sanción”, lo que no existe). El Senado introdujo por su parte modificaciones al proyecto aprobado por la Cámara de Diputados y lo devolvió a esta para que las tratara. Eso descarta de plano la alegación de que es imposible seguir el procedimiento ordinario: el proyecto fue tratado por ambas cámaras. El hecho de que un proyecto de ley no reúna mayoría suficiente como para ser aprobado, no significa que no pueda seguirse el procedimiento normal para la sanción de las leyes. Los DNUs no son una garrocha destinada a saltarse el Congreso cuando el partido del Presidente de la Nación carece de mayoría para imponer sus proyectos. Si lo fueran, el Congreso se convertiría en un mero registrador de los proyectos presidenciales, una junta del amén. Nada más lejos del sistema de la Constitución.

Si bien el sistema creado por la reforma constitucional de 1994 respecto de los DNUs es deplorable, ni la interpretación más amplia sugiere que el artículo 99, inciso 3 otorga al Presidente una autorización ilimitada para dictar ese tipo de decretos cuando le plazca o cuando el Congreso no trate proyectos de ley con la velocidad que desee el Poder Ejecutivo. Esa interpretación es una gravísima deformación de las normas de la Constitución. En el caso Verrocchi, la Corte Suprema estableció con claridad qué significa imposibilidad de seguir el trámite ordinario de sanción de las leyes: “1) Que sea imposible dictar la ley mediante el trámite ordinario previsto por la Constitución, vale decir, que las cámaras del Congreso no puedan reunirse por circunstancias de fuerza mayor que lo impidan, como ocurriría en el caso de acciones bélicas o desastres naturales que impidiesen su reunión o el traslado de los legisladores a la Capital Federal; o 2) que la situación que requiere solución legislativa sea de una urgencia tal que deba ser solucionada inmediatamente, en un plazo incompatible con el que demanda el trámite normal de las leyes”. Ninguna de esas circunstancias se verifica en este caso: (i) el Congreso funciona regularmente y el Presidente podía convocar a sesiones extraordinarias para tratar este proyecto de ley, y (ii) no existe una urgencia tal que deba ser solucionada inmediatamente.

A eso cabe agregar que, pese a lo que se alega, el régimen aprobado por el DNU legisla sobre temas penales. Es irrelevante que otorgue competencia a los juzgados en lo civil y comercial o que denomine al régimen como “civil”. No es el nombre de un instituto jurídico el que le otorga su naturaleza. La extinción de dominio es la consecuencia de la presunta comisión de un delito penal y, como tal, implica una pena adicional a la prevista en el Código Penal, una accesoria. Ello invalida la posibilidad de utilizar un DNU para aprobar un régimen procesal de ese tipo.

La confiscación disfrazada de otro nombre

Las objeciones a la constitucionalidad del DNU no se detienen en aspectos formales, sino que alcanzan también al fondo de la cuestión, incluso si el régimen de extinción de dominio fuera aprobado por ley. La Constitución Nacional, luego de declarar que la propiedad es inviolable y nadie puede ser privado de ella sino en virtud de sentencia fundada en ley, dispone que la confiscación de bienes queda borrada para siempre del Código Penal Argentino. Como mencioné anteriormente, el régimen de extinción de dominio es una sanción penal accesoria. El hecho de que se la denomine civil o se la legisle fuera del Código Penal no elude la clara prohibición constitucional. Lo que el texto constitucional prohíbe es la confiscación de bienes como sanción ante un ilícito penal y eso es precisamente lo que establece el régimen aprobado por el DNU. Eso no implica decir que sí podría establecerse como sanción civil, ya que eso sería una expropiación que debería ser indemnizada. Una cosa es la nulidad del acto de adquisición de un bien o el embargo y remate de bienes para reparar un daño y otra muy distinta es el desapoderamiento liso y llano.

El régimen impone la sanción por la mera presunción de comisión de un delito. Se viola así la presunción de inocencia y el derecho a la defensa en juicio, para imponer una sanción por la mera sospecha de haber cometido un ilícito. Esto se ve agravado por el hecho de la inversión de la carga de la prueba, en virtud de la cual es el responsable presunto de haber cometido un ilícito quien debe demostrar que los bienes no fueron producto del ilícito del cual ni siquiera ha sido declarado culpable. Un verdadero dislate.

Cabe preguntarse qué acontecerá en aquellos casos en los cuales el presunto delincuente sea privado de sus bienes y, posteriormente, sea sobreseído en la acción penal. Se daría la contradicción de que alguien inocente del delito del cual fuera acusado, habría sido sancionado con la extinción del dominio de bienes por provenir éstos de un delito que no ha cometido.

Adicionalmente, el decreto impone una sanción como consecuencia de presuntos delitos en forma retroactiva, violando así la prohibición expresa establecida en el artículo 18 de la Constitución Nacional. Aun suponiendo que el condenado en el proceso de extinción de dominio fuera encontrado culpable en sede penal, la sanción de extinción se aplicaría como consecuencia de delitos cometidos cuando el régimen de extinción no se encontraba vigente. Alguien podría señalar, con razón, que la Corte Suprema ha declarado recientemente la validez de leyes penales retroactivas en el caso Batalla. Pero que la Corte las haya convalidado, no significa que la Constitución las admita.

En suma, a partir del dictado del Decreto N° 62/19, la propiedad adquirida en los últimos 20 años ha pasado a pertenecer al Estado, salvo que quien lo cuestione pruebe que no fue producto de uno de los ilícitos mencionados en el referido decreto. Alertar acerca de la inconstitucionalidad de una medida de gobierno, por muy loable que sea la intención del Presidente de la Nación, no significa proteger corruptos, sino defender las instituciones. La lucha contra la corrupción y el autoritarismo se basa precisamente en el respeto estricto de las normas constitucionales. No es saltándose la Constitución como se construye una República.

Ricardo Ramírez Calvo

Universidad de San Andrés

    

364 Respuestas para “EL DIFÍCIL OFICIO DE DEFENDER LA CONSTITUCIÓN”

  1. María Elena Calvo Responder

    Es lamentable que el Poder Ejecutivo y / 0 sus asesores desconozcan los principios elementales del derecho. En nuestro país reiteramos este tipo de conducta transgresora no sólo en el ámbito delictivo, sino a nivel político.

    • Ricardo Ramírez Calvo Responder

      Estimada Sra. Calvo:

      Muchas gracias por su comentario. Lamentablemente en nuestro país, pocos están dispuestos a pagar el costo del estado de derecho, que es precisamente la necesidad de respetar la Constitución Nacional, incluso cuando eso lleve a resultados que no son los buscados. Un cordial saludo.

  2. Doctor Ramirez Calvo, su comentario me pareció conciso y contundente. Desnuda la inconstitucionalidad del DNU de manera clarísima. No obstante lo cual, me surgieron un par de inquietudes al respecto.
    La primera es más bien un comentario al margen: el Senado, antes que introducir modificaciones al proyecto aprobado en diputados (no comprendo por qué ud. considera qué no existió “media sanción”), en verdad aprobó un proyecto distinto en paralelo. Tal es así que, si uno lee el proyecto aprobado por Diputados, y el aprobado por el Senado, advierte fácilmente que ni siquiera hay correlación numérica entre los artículos de uno y otro (es un tema muy propio del derecho parlamentario determinar si podría haber sido válido en caso de que diputados hubiese aceptado las “modificaciones” que no fueron tales).
    La segundaes una inquietud más constitucional neta. Usted afirma que incluso mediante ley formal tampoco podría ser válida una ley con esta clase de disposiciones. Coincido en su crítica reticente a aceptar “Batalla” como ajustado a derecho, y en que la irretroactividad veda juzgar 20 años hacia atrás como pretende el DNU. Pero ¿realmente sería inconstitucional si fuese hacia el futuro, exigiendo una condena firme (y no de manera cautelar), y aclarando que es una pena accesoria?
    Me atrevo a decir que sería constitucional, puesto que si bien no hay que tomarse a la ligera la prohibición de la confiscación de bienes del art. 17 (para Bidart Campos es una cláusula pétrea), en este caso, dada la intrínseca relación de la adquisición de esos bienes con el origen de ellos (acto de corrupción en perjuicio del erario úblico), considero que hay que interpretar dicha disposición de consuno con el art. 36 de la Constitución del 94′, que dispone que “Atentará asimismo contra el sistema democrático quien incurriere en grave delito doloso contra el Estado que conlleve enriquecimiento, quedando inhabilitado por el tiempo que las leyes determinen para ocupar cargos o empleos públicos”.
    Me parece que una interpretación netamente originalista del art. 17 en este caso, tornaría ficticia la plena vigencia del art. 36, en este caso tan particular, donde está en juego la ética pública.

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