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Double jeopardy? Siemens defendant loses Argentina dismissal motion

The Cámara Federal de Casación Penal of the Republic of Argentina issued an important ruling on May 4 concerning the legal principle that no one can be punished twice for the same crime (non-bis-in-idem).

The case put the spotlight on international corruption and criminal laws modelled on the FCPA or UKBA that extend the jurisdictional reach of countries.

The Argentine court was called on to decide the potential violation of the non-bis-in idem doctrine in connection with the notorious Siemens case, involving allegations of corrupt payments to high Argentinean officials for the national ID and migration control project.

The defendant claimed that Argentinean courts should not prosecute him because he had been previously prosecuted in Germany. Courts there had the opportunity to review the same facts (payments to foreign officials) but ended the prosecution following a plea deal reached with the individual.

The case highlighted the international extent and importance of the non-bis-in-idem doctrine -- a local court in Argentina was asked to review the effects and consequences of a foreign prosecution.

The case also raised issues about how local courts can and should deal with deferred prosecution agreements, suspensions, settlements and the like from other jurisdictions.

In the end, the defendant's petition for dismissal wasn't accepted by the local court. Although there was a clear matching as to the individual prosecuted in both jurisdictions, the court found different public interests being protected by the respective criminal law regimes and the prosecutions under them.

While German courts had assessed the private effects of the alleged bribery (damage suffered by Siemens due to the payment to third parties without a clear consideration), the Argentine case involved potential harm caused by public-sector bribery.

On that basis, the Argentine court found no matching between the facts investigated in Germany with those being investigated in Argentina, nor between the private and public interests potentially at issue in each country.

The court rejected the defendant's petition and allowed the prosecution to proceed.

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This note contains a personal opinion and does not necessarily represent that of my employer. In writing this opinion I am not representing nor acting on behalf of my employer.


Lucio M. Fabani Larrañaga is Senior Legal Director at Oracle Corporation based in Buenos Aires, Argentina.