The Problem of Corruption.
Ideas for a True Change (Political, Social and Economic)

A legal approach based on the Argentine legal system

1. The Problem of Corruption

The problem of corruption lies fundamentally in the fact that the person who carries out the illicit act obtains a private benefit by affecting various legal interests. These are illicit acts, incompatible with the public interest or social utility. Although the State —at any of its hierarchical levels— or the public administration is defrauded, the real victim is society as a whole (socio-economic aspect).

The most relevant feature of this problem is the privilege of impunity, granted by the group to which the individual belongs —economic group, political-party group, corporation, or a faction thereof—. This article aims to provide some ideas to address the problem from a legal standpoint, while making it clear that a political and social change is also required, especially regarding the choice of means to achieve individual ends or objectives. It is necessary to understand that rights and duties or obligations are inseparable, and that many of the actions carried out by each individual will benefit or harm the social system of which they form a part.

To analyze the proposed issues, a systemic approach must be used —an approach that partakes of the principle according to which everything is a system or a component of one, and must therefore be studied and treated accordingly— (definition taken from Mario Bunge's "Diccionario de Filosofía"; third Spanish edition, Mexico 2005, Siglo XXI Publishing).

2. The Action for Extinction of Domain

It is proposed that assets obtained through illicit activities —bribery and influence peddling (Articles 256 to 259 of the Argentine Criminal Code), embezzlement of public funds (Arts. 260 to 264), negotiations incompatible with the exercise of public functions (Art. 265), illegal exactions (Arts. 266 to 268), illicit enrichment of officials and employees (Art. 268, subsections 1, 2 and 3), malfeasance (Arts. 269 to 272), fraud against the public administration (Art. 174 subsection 5), and theft or robbery from the Public Administration (Arts. 162 to 167 quinquies)— be recovered through an action for extinction of domain, without any consideration or compensation.

2.1. Regulatory Basis and Institutional Evolution

The procedural tool to achieve this objective exists in the Argentine Republic in the form of Decree of Necessity and Urgency (DNU) 62/2019, issued by the National Executive Branch on January 21, 2019, which approves the "Procedural Regime for the Civil Action of Extinction of Domain." This regime establishes an autonomous procedure, independent of any other judicial process. The extinction of domain is declared through a civil proceeding that does not depend on the existence of a prior criminal conviction. The action prescribes after twenty (20) years, a term that begins to run from the date the asset entered the holder's estate.

2.2. The Argentine Legal Hierarchy and the Discussion on the Legitimacy of DNU 62/2019

In order to properly understand the nature of this tool and the challenges it has faced, it must be placed within the Argentine legal hierarchy, consolidated with the 1994 constitutional reform. At the apex lies the National Constitution and international human rights instruments with constitutional rank (Art. 75, subsection 22). Below are the laws passed by Congress, international treaties without constitutional rank, and, at a lower tier, decrees of the Executive Branch.

Decrees of Necessity and Urgency (DNU) were incorporated into the Constitution by the 1994 reform, in Article 99, subsection 3. This provision establishes that the Executive Branch may under no circumstances, under penalty of absolute and irremediable nullity, issue provisions of a legislative nature. Only when exceptional circumstances make it impossible to follow the ordinary procedures set forth in the Constitution for the enactment of laws, and provided the norms do not regulate criminal, tax, electoral, or political party matters, may it issue decrees for reasons of necessity and urgency, which must be decided in a general agreement of ministers who must countersign them, together with the Chief of the Cabinet of Ministers.

DNU 62/2019 has been subject to serious constitutional challenges by prominent jurists and civil society organizations, which can be summarized in the following arguments:

• Absence of exceptional circumstances: The decree’s own preamble acknowledges that the Chamber of Deputies gave preliminary approval to the extinction of domain bill on June 23, 2016, and that the Senate considered it on August 22, 2018. The failure to obtain final approval by Congress does not mean that it was impossible to follow ordinary procedures; on the contrary, it demonstrates that those procedures were carried out without difficulty. Therefore, the enabling condition of Art. 99, subsection 3 of the National Constitution was not met.
• Substantially criminal nature of the regulation: Regardless of the Executive Branch having labeled this proceeding as a "civil action," the text of the decree reveals its unavoidable connection with the criminal process. The preamble states that "based on a well-founded suspicion of the commission of a serious crime, the State challenges the ownership of an asset when it does not reasonably correspond to the holder's income." Article 99, subsection 3 of the National Constitution expressly prohibits regulating criminal matters through a DNU.

These challenges highlight one of the central ideas of this article: the need for the proposed legislative reforms to be carried out by the constitutionally competent body —the National Congress— through the law-making procedure set forth in the National Constitution, thereby granting full democratic legitimacy and legal certainty to the institution.

2.3. Institutional Evolution

Beyond the debate over its origin, the extinction of domain regime has been strengthened in recent years with the creation of specialized bodies for the management of recovered assets. Resolution 106/2024 of the Chief of the Cabinet of Ministers created the "Temporary Special Executing Unit — Confiscated Assets Unit." Subsequently, Decree DNU 575/2025 approved the "Regime for the Conservation, Administration, and Disposal of Assets Derived from Illicit Activity" and created the Council of Assets Recovered in Favor of the National State. Finally, Decree 582/2025 created the Office of Recovered Assets (OBR) as a decentralized body under the Ministry of Justice, which acts as the enforcement authority of said unified regime. On October 20, 2025, Decree 758/2025 appointed the first Executive Director of the OBR.

This institutional scaffolding demonstrates the willingness to go beyond mere confiscation, attending to the useful destination of the assets for society and preventing their depreciation while judicial proceedings are underway.

2.4. Supplementary Clarifications

• Assets: "Assets" shall be understood to mean all things susceptible of economic value, as provided in Articles 15 and 16 of the National Civil and Commercial Code.
• Standing: The National State, the Provincial States, and the municipalities are actively legitimized.
• Assets covered: The action covers all assets, including lawful ones, that arise from the conversion or transformation —partial or total— of assets obtained illicitly, as well as their fruits and products (Art. 233 of the Civil and Commercial Code). With respect to third-party acquirers, the principles of good faith and bad faith govern.
• Evidentiary burden: In cases of unjustified enrichment or unexplained asset growth, the burden of proof falls on the party best positioned to prove the alleged facts (doctrine of dynamic evidentiary burdens).
• Protection of whistleblowers and witnesses: Appropriate measures must be implemented to provide effective protection to whistleblowers of such crimes and to those called as witnesses, experts, and auxiliaries of justice, in accordance with Articles 32 and 33 of the United Nations Convention against Corruption (approved by Law 26,097).

3. The Non-Applicability of Statutes of Limitations to Crimes Against the State

It is proposed that there be no statute of limitations for crimes committed against the National State, the Provincial State, and the Municipality, the Public Administration, or the public treasury.

3.1. Foundations

The indicated illicit actions undermine the State's assets and gradually destroy citizens' trust in republican institutions. The supreme value of "strengthening justice" —Preamble of the National Constitution— and the need to protect the truth and prevent impunity should prevail over the principle of legal certainty, on which the statute of limitations for criminal prosecution is based.

Article 36, fifth paragraph, of the National Constitution of Argentina provides that "anyone who commits a serious intentional crime against the State that results in enrichment shall likewise be considered to have acted against the democratic system, and shall be disqualified for the time that the laws determine from holding public office or employment," constituting a solid constitutional basis for moving in this direction.

3.2. Legislative Projects

The proposal to incorporate the non-applicability of statutes of limitations for corruption crimes has been a historical demand that has materialized in numerous bills. Among the most relevant are:

• Bill 8620-D-2010: A pioneering historical antecedent in this area.
• Bill 7478-D-2013: A historical antecedent that drove the legislative discussion.
• Bill 2644-D-2022 (Jorge Rizzotti, Gabriela Lena, and others): Proposes the incorporation of Articles 62 bis and 65 bis on the imprescriptibility of corruption crimes. The proposed Article 62 bis declares the criminal action imprescriptible for fraud to the detriment of the public administration (Art. 174 subsection 5), bribery and influence peddling, embezzlement of public funds, incompatible negotiations, illegal exactions, illicit enrichment, malfeasance, money laundering, and any other crime committed in the exercise of public office. The proposed Article 65 bis provides that the criminal action and the sentence imposed for such crimes shall not be extinguished by amnesty, pardon, nor may they be commuted.
• Bill 0016-D-2024 (Mónica Frade, Maximiliano Ferraro, and others - Coalición Cívica): Proposes to incorporate Article 62 bis into the Criminal Code to declare imprescriptible the crimes of bribery and influence peddling, embezzlement of public funds, incompatible negotiations, illegal exactions, illicit enrichment, concealment, fraud against the public administration (Art. 174 subsection 5), and any crime committed by a public official for illicit purposes.

3.3. Relationship with Article 18 of the National Constitution

The described conducts are already criminally prosecuted as crimes (prior formal statutory mandate, applicable to expressly contemplated cases), so there is knowledge of the unlawfulness. However, to provide maximum legal certainty, a constitutional reform could be considered through the procedure set forth in Article 30 of the Magna Carta, so that Article 18 contemplates, as an exception, retroactivity in corruption matters, in order to investigate, prosecute, and punish crimes committed by public officials against the State, the Public Administration, or the public treasury, as established by Article 123 of the Political Constitution of the State of Bolivia.

4. The Review of Final Judgments Tainted by Fraud (Cosa Juzgada Írrita)

4.1. Res Judicata in the Rule of Law

The Rule of Law is defined as one in which citizens are subject to the government of law, rather than the government of men. In Argentine constitutionalism, Article 18 of the National Constitution does not mention res judicata as a guarantee, but there is no doubt that it presupposes it. It would be pointless to require a prior trial based on a law enacted before the act underlying the proceeding and then disregard it, if the decision has been favorable to the accused. Anyone who has obtained an acquittal after a proceeding conducted in accordance with pre-established laws, handed down by the same judges of the State and in compliance with constitutional rules, has a vested right opposable erga omnes that no one, much less the State itself, can ignore.

In criminal law, the immutability of res judicata, when the judgment definitively closes the proceeding in favor of the accused, has no exceptions. As a counterpart, and confirming its status as a guarantee, only a conviction may be modified in the future when it is intended to benefit the convicted person. There is no supervening situation that can modify a final acquittal, nor any moral reason, nor any need for justice or right to truth on the part of the victim that could legitimize a new trial. The doctrine that postulates and accepts that res judicata must yield in extreme situations of gross and notorious iniquity of the decision may have a place in the field of private law, but not in criminal law, where legal certainty and the right of the acquitted person prevail over any claim for justice.

4.2. The Exceptional Review of Res Judicata

However, it has long been accepted that a judgment obtained through deceit or illicit means —bribery, extortion, threats— is not the result of a proceeding conducted in accordance with the law and, even if final, lacks the minimum conditions to acquire the authority of res judicata.

The jurisprudence of the Supreme Court of Justice of the Nation has established this doctrine for decades. The paradigm is the case "Campbell Davidson, Juan v. Province of Buenos Aires" (Fallos 279:54), of February 19, 1971, in which the High Court held: "fraudulent judgments or those rendered as a result of bribery, violence, or other machination are reviewable... Final effectiveness cannot be recognized for a judgment rendered in a proceeding in which procedural fraud has been perpetrated. The institution of res judicata, like all legal institutions, must be organized on bases compatible with constitutional rights and guarantees. Not every judicial decision can be recognized as having immutable force, but only those that have been preceded by an adversarial process in which the defeated party has had an adequate and substantial opportunity for hearing and evidence. The principle of immutability of res judicata cannot be invoked when there has been no authentic and genuine judicial process."

This criterion was ratified in the cases "Bemberg" (Fallos 281:421), of December 29, 1971, and "Atlántida S.R.L. v. Naveira, José A." (Fallos 283:66), of June 26, 1972.

In criminal matters, the Supreme Court has delineated the limits of this doctrine. In the case "Mazzeo, Julio L. et al." (Fallos 330:3248), of July 13, 2007, the majority opinion held that res judicata is not applicable when it is verified that: a) the actions of the court that acquitted or dismissed the case against the defendant were aimed at shielding him from criminal responsibility; b) the proceeding was not conducted independently or impartially in accordance with due process guarantees; or c) there was no intention to subject the defendant to the action of the justice system. The minority, in an opinion by Justice Argibay, held that fraudulent res judicata has nothing to do with the correctness of the judges who rendered it, but rather with their decency and freedom of conscience —it is the deviation in the performance of their duties, through fraud or coercion, that deprives them of the character of judges.

More recently, in the case "Trujillo, Antonio Rufino et al." (Fallos 322:2109, September 24, 2013), the Supreme Court specified that the process aims at establishing objective legal truth —in accordance with what was held in "Colalillo" (Fallos 238:550)— and disqualified the appealed judgment for containing a partial and generic examination of the arguments raised, a circumstance that gave the challenged decision only apparent grounds, affecting the right of defense in court. The immutability of res judicata only protects when there has been a genuine process.

On March 19, 2025, the Supreme Court of Justice of the Nation rejected in limine an independent action of nullity for fraudulent res judicata, on the grounds that the case did not meet the requirements to which the admissibility of the action is subordinated. This ruling reaffirms the restrictive criterion governing the matter. However, the doctrine remains fully effective as a potential tool for attacking final judgments from any court —civil, commercial, labor, family, among others— that have been obtained through fraud, deceit, bribery, violence, or other fraudulent machination. As the National Court of Appeals in Civil Matters stated, the action has as an inexorable prerequisite the existence of a substantial defect in the proceeding that, through machination, collusion, error, or fraud, led to a judgment tainted with nullity (CNCiv., Court J, 8/9/2016, "Productos Alimenticios Novo S.A. v. Koraluz S.A.").

4.3. The Appeal for Review and the Independent Action of Nullity

In Argentine law, the review of final judgments in civil matters is possible through two coexisting and non-mutually exclusive means. The first is the appeal for review, which is a legal remedy provided for in civil procedural codes, with reception in some provinces such as Córdoba (Arts. 395 to 401 of the CPCC), San Juan (Arts. 265 bis to 265 quintus), Mendoza (Arts. 155 to 158), Corrientes (Arts. 295 to 303), La Rioja (Arts. 265 to 268), Río Negro (Arts. 303 bis to 303 nonies), and Tierra del Fuego, Antarctica and South Atlantic Islands (Arts. 301 to 312). The second is the independent action of nullity, a jurisprudential creation of the Supreme Court, applicable nationally and provincially.

In the words of Professor Juan Carlos Hitters, "the establishment of the appeal for review underpins the value of security, because by regulating the way to challenge final judgments, certainty is granted to litigants and concrete bases to judges for deciding disputed matters." Meanwhile, Mario Mosquera Ruiz and Cristian Maturana Miquel teach that the rationale of the appeal for review is to ensure that "justice prevails over the legal certainty established by res judicata."

The differences between the two avenues were clarified by the Superior Court of Justice of Córdoba in the case "Héctor Messio y Cía. S.R.L. v. Juan Ramón Campos", of June 4, 2003, which held that the appeal for review is a typically procedural institution whose essential effect is to annul the proceeding, without such annulment being conditioned on the intrinsic injustice of the challenged decision, and it proceeds only on the grounds set forth in the procedural law, which are to be restrictively interpreted. In contrast, the independent action of nullity is of a substantive nature and is fundamentally based on the injustice of what was decided, without prejudice to also being based on defects that affect the development of the proceeding.

At the national level, the Reform Project of the Civil and Commercial Procedural Code of the Province of Buenos Aires and the Draft Bill of the Civil and Commercial Procedural Code of the Autonomous City of Buenos Aires, prepared by Drs. Augusto M. Morello, Isidoro Eisner, Roland Arazi, and Mario E. Kaminker, regulated in their Articles 691 to 697 the "Action for Review of Fraudulent Res Judicata," with the following text proposed for Article 691: "The action aimed at declaring the nullity of final judgments shall proceed if the following requirements are met: 1) That the judgment suffers from essential defects, such as having been the culmination of an apparent or fraudulent, simulated or fraudulent proceeding, resulting from activities that have determined defects of will or other substantial defects. 2) That there is a current interest in the declaration of nullity." Article 692 of the project provided that "the assessment of the admissibility of the action shall be carried out with strict criteria" and that it will not be admissible "when defects in the procedural activity, errors of judgment, or, in general, those grievances whose correction should have been sought through the appropriate remedies or proceedings are invoked."

5. Comprehensive Reform of the Regulatory Texts

Any bill that contemplates the issues discussed herein should keep in mind both the official currently in office and any citizen who has ever held public office.

A comprehensive reform of the following regulatory texts is required:

a) National Constitution: Through the procedure provided for in Article 30, so that Article 18 contemplates, as an exception, retroactivity in corruption matters, in order to investigate, prosecute, and punish crimes committed by public officials against the State, the Public Administration, or the public treasury.

b) Criminal Code: Incorporate the non-applicability of statutes of limitations for the mentioned crimes in Title X ("Extinction of Actions and Penalties," Arts. 59 to 70). Likewise, it would be advisable to establish a concordant relationship between the provisions of Article 269 (malfeasance) and Article 248 (abuse of authority and violation of the duties of public officials), for the purpose of providing for the enforcement of penalties in the case of decisions rendered in any court.

c) National Civil and Commercial Code:

1Derogation of subsection f) of Article 2564: It is proposed to derogate this subsection, which establishes a one-year statute of limitations for "the independent action for review of res judicata." This period, designed for generic civil law grounds, is incompatible with the nature of the defects that are sought to be challenged in corruption cases, where the fraudulent machination may remain hidden for prolonged periods. As the specialized doctrine rightly points out, the inclusion of this period in the Civil and Commercial Code has generated serious procedural doubts, to the point that there is no consensus even on the moment when it begins to run. Maintaining this extremely short period for corruption cases would amount to enshrining impunity in all those cases where the criminal scheme is not discovered within one year.

2Incorporation of the "action for extinction of domain": It is proposed to expressly incorporate the "action for extinction of domain" in favor of the State and its grounds, providing that the right to claim it is not extinguished by the statute of limitations. This modification is essential to give a solid legal basis to the action and to overcome the constitutional objections that weigh on DNU 62/2019. For specific corruption cases, the statute of limitations for the independent action for review of res judicata must be exempted, providing that it begins to run from the moment there are objective elements that make it possible to prove that the legal act was obtained fraudulently, without a maximum time limit.

3State Liability: The suggestion remains to derogate Law 26,944 on State Liability and return to the original wording of Articles 1764, 1765, and 1766 of the 2011 draft bill, by virtue of the principle of non-regression recognized in the American Convention on Human Rights (Pact of San José, Costa Rica).

d) Procedural Codes: They should contemplate the doctrine of "fraudulent res judicata," and, for the grounds that enable the action for extinction of domain, the time limit for bringing the action for nullity should begin to run from the moment there are objective elements making it possible to prove that the legal act has been irregular, fraudulent, or deceitful.

e) Law 25,188 on Ethics in the Exercise of Public Office: This law, fully in force, establishes duties, prohibitions, and incompatibilities for all public officials. It constitutes an indispensable complement to any reform in this area.

f) Law 27,401 on Criminal Liability of Legal Entities: Establishes the criminal liability regime applicable to private legal entities for the crimes of bribery, influence peddling, negotiations incompatible with the exercise of public functions, extortion, illicit enrichment of officials and employees, and aggravated false financial statements and reports. This law is fundamental for combating corruption in the corporate sphere.

6. Use of the Recovered Funds

The totality of the funds recovered through the action for extinction of domain and the economic sanctions could be allocated to:

• Public health, public education, and culture.
• Higher education, support for scientific research, and technical design (drivers of development).
• Making possible the effective exercise of the constitutional rights enshrined in our Magna Carta.
• Formulating and implementing procedures and programs for the selection, training, capacitation, and control of the holders of public offices considered especially vulnerable to corruption and of the personnel in charge of preventing and combating it.
• Publishing in detail what has been done with the recovered funds —access to public information— and preparing periodic reports on the risks of corruption in the public administration.

📚 Recommended Reading and Links

Updated regulatory framework:

• Law No. 26,097 – Approval of the United Nations Convention against Corruption.
• National Constitution of Argentina – Article 36, fifth paragraph, and Article 99, subsection 3.
• DNU 62/2019 – Procedural Regime for the Civil Action of Extinction of Domain.
• Law 27,401 – Criminal Liability of Legal Entities.
• Law 25,188 – Ethics in the Exercise of Public Office.
• National Civil and Commercial Code – Article 2564, subsection f).
• Bills of the Argentine National Congress – Bills 7478-D-2013 and 8620-D-2010.
• Bill 0016-D-2024 – Incorporation of Article 62 bis into the Criminal Code.
• Bill 2644-D-2022 – Incorporation of Articles 62 bis and 65 bis.
• Agreement of San Andrés (2019) – "Towards a Social Anticorruption Agreement."

Doctrinal References:

• HITTERS, Juan Carlos, "Revisión de la cosa juzgada" [Review of Res Judicata], 2nd ed., Librería Editora Platense, La Plata, 2006.
• RÍOS, Carlos Ignacio, "El valor de la cosa juzgada en el Estado de Derecho" [The Value of Res Judicata in the Rule of Law], LA LEY 2008-A, 935, online citation AR/DOC/3869/2007.
• VALCARCE, Arodín, "Revisión de la cosa juzgada" [Review of Res Judicata], JA 2000-II-780.
• ÁVILA PAS DE ROBLEDO, Rosa Angélica, "Revisión de la cosa juzgada y acción autónoma de nulidad" [Review of Res Judicata and the Independent Action of Nullity], SJA 2013/10/30 - 52; JA 2013-IV.
• ÁVILA PAS DE ROBLEDO, Rosa Angélica, "La acción autónoma de nulidad por cosa juzgada írrita en la causa 'Trujillo Antonio Rufino y otros'" [The Independent Action of Nullity for Fraudulent Res Judicata in the Case 'Trujillo Antonio Rufino et al.'], with citation to the Supreme Court ruling of September 24, 2013.
• PEGORARO, Juan S., "La corrupción como cuestión social y como cuestión penal" [Corruption as a Social Issue and as a Criminal Issue], available at the Universidad Nacional del Litoral repository and on Dialnet.
• Doctoral thesis: "Limitaciones de las entidades fiscalizadoras superiores para combatir la corrupción" [Limitations of Supreme Audit Institutions in Fighting Corruption], Fernando Roberto Lenardón, UNL, 2021.
• Master's thesis: "La corrupción en la administración pública argentina: un enfoque sistémico" [Corruption in the Argentine Public Administration: A Systemic Approach], UNL.

International resources for English-speaking readers:

• United Nations Office on Drugs and Crime (UNODC) - Corruption
• Inter-American Convention against Corruption (OAS)