| Let's start with the tico system of justice. If
you find it strange that las cortes (courts) in Costa
Rica don't have room for the jurado (jury) then you
probably haven't heard that Costa Rica practices a justice
system based on the Roman and French codes that came to us
by way of Spain.
The system has several interesting features that makes it
different from the common law system practiced in the United
States, Canada and England.
The most outstanding of them all from the gringo perspective,
is the lack of a jury. Another is that judges don't have much
room for interpretations and must apply the law as a receta
(recipe); if the crime doesn't fit, they must acquit.
The precept of inocente hasta que se pruebe lo contrario
(innocent until proven guilty) is also a principle in
the Costa Rican system, but whereas in the common law system
judges usually are content to set bail for most types of crimes,
in Costa Rica judges seem more inclined to deny it.
In fact, there are a good number of other measures at the
disposal of a tico judge, collectively known as medidas
cautelares (precautionary measures) that can make the
whole process a nightmare for the imputado (suspect).
The four most famous medidas are: arresto domiciliario
or casa por cárcel (house arrest), fianza
(bail), impedimento de salida (prohibition to leave
the country) and last but not least prisión preventiva
(preventive prison), a measure intended to keep the suspect
from obstructing justice.
You can say that tico justice guards evidence jealously.
If you ever find yourself in hot legal water, by all means
try to breathe very carefully and keep a low profile. A certain
ex-president of ours did not answer his phone or tell his
assistant where he was going for four days, and that cost
him an orden de arresto internacional (international
arrest warrant). He should have known better.
There is some confusion also as to who presses charges, but
there should not be as practically anybody with a stake in
the matter can do it. For instance, Alcatel is pressing charges
against two of its former managers, which are in addition
to those already pressed by the government. By the way, in
this case there is a difference between el estado (the
state) and el gobierno (the government). The former
is represented by the Ministerio Público (Attorney's
Office) and belongs to the Judiciary, the latter is represented
by the Procuraduría General (the Government's
Lawyer, known as Procurador) and belongs to the Executive
branch. Together they have most of the powers of what many
of you know as a Justice Department, though none have powers
as far reaching when it comes to interpreting the law.
The process itself is composed of four phases, and the name
of the defendant changes accordingly. When the Ministerio
Público thinks it has a possible reason to start
an investigation, it opens a process called de instrucción
(instruction) and it is presided by one or several judges,
each making decisions apart from the other judges. During
this phase the defendant is called imputado (suspect),
and it is the job of the judge to say if there is falta
de mérito (lack of merit), else the judge elevates
the issue to a higher office known as a Tribunal; from
here on the defendant is called indiciado (indicted),
but you can also call him acusado (defendant) as well.
A Tribunal is made up of three judges, one of whom
is the president of the panel. This system is called colegiado.
This is by all means a process similar to that of common law
except for the missing jury. After hearing all the arguments,
examining all the evidencia (evidence) and listening
to all the testigos (witnesses), the judges retire
to their offices and make their decision alone, then meet
up to vote; this is why a verdict by a Tribunal in
Costa Rica is called a voto (vote).
Regardless of the outcome there is a statutory period during
which any of the parties can file an apelación (appeal);
this is the third phase and it is called casación.
This job belongs to the Sala III of the Supreme Court,
which confirms the verdict, orders a retrial or even modifies
the punishment. From here on, the acusado turns into
culpable (guilty) or inocente (innocent) and
the big Cosa Juzgada seal is put on the whole matter.
Reopening it constitutes double jeopardy. If found guilty,
there is yet one more phase to go through called ejecución
de la pena (execution of the verdict), also headed by
a full-blown judge who though limited by the penal code, can
still change the sentence and even trade it for something
else, such as casa por cárcel (house arrest).
In the Costa Rican system, unlike the common law system,
subtle differences in vocabulary and actions may lead to completely
different crimes and equally different lengths of sentences.
The operative word in our system is la tipificación
(the configuration) of the crime.
It all comes down to how Congress worded the law. Tico
judges must closely observe the letter of that law first,
and only then consider whatever jurisprudencia (jurisprudence)
may already exist.
With that in mind, let's begin our journey into the types
of crimes that Mr. District Attorney has at his disposal for
doing his job, but just to keep it manageable let's limit
that journey to crímenes económicos (money
related crimes) committed against the state.
Got an easy way to squeeze money out of the government? Did
your pal learn about this tip of yours and join in? You want
to explore the loophole as far as it takes you? Well then,
you are part of a corruptela, a type of actividad
(activity) that may or may not be considered a crimen
(crime). It all depends.
Let me explain that one again. The squeezing easy money from
the government part is definitely a crime, so don't get too
excited; what is not a crime is the casual nature of the affair.
In the tico system the dolo (intent) makes
the difference between cárcel (doing time) or
walking free, in almost all instances. That is why legislators
came up with asociación ilícita (conspiracy
to commit a crime), which to me is sort of like mail fraud
in the United States, if the DA can't get you for the big
crime, he will get you for mail fraud, at least.
The difference between a corruptela and asociación
ilícita is then dolo and all it takes is
to prove that there was some kind of understanding between
the parties. Illicit association carries a six-year sentence.
The current situation of the three tico ex-presidents
has a lot to do with these type of tenue (subtle) differences,
with two of them in jail and the other without as much as
a formal accusation. At the time this article was written,
both presidents were in jail. They have since been released.
Ex-president #1 used to have a rather well-known lawyer's
office that was equally well-connected. He was hired by a
certain corporation, supuestamente (allegedly) for
asesoramiento político (lobbying). However,
he understood differently; to him he was hired to carry out
legal work in agreement with his profession. The problem was
that the person who paid him says he did it as part of a payment
requested by the head of a certain agencia gubernamental
(government agency) who was part of a large scheme to
defraud the state of a $40 million dollar loan given by a
certain Scandinavian country. Willingly or unwillingly, he
became part of the scheme and therefore is in deep trouble.
What is left to determine, then, is his grado (degree)
of participation. That is, how much did he actually know?
Let's start by giving him el beneficio de la duda (benefit
of the doubt), as we should, and let's say he was completely
unaware of what was going on, thus ruling out intent. This
is the lowest degree of participation, in which case he could
be charged with favorecimiento real (obtaining an actual
benefit) from the whole transaction. Being the good lawyer
that he is, however, he proceeded to put all of the money
he got from the transaction into a depósito judicial
(escrow account in the hands of the court). He now can
go to the court and say he got no benefit since he returned
the money. That works, too.
If the fiscal (DA) can find so much as a thread of evidence
to prove intent, however, he can then be charged with illicit
association and corrupción, a crime usually
reserved for servidores públicos (government
employees), but that applies to him by way of the head of
the government agency. Just to clarify, contrary to popular
belief, an expresident is not a public servant.
Nevertheless, he has an uphill battle because the head of
the government agency involved in the scheme says (allegedly)
it was he who organized everything and they were simply following
his lead; that could turn him into the corruptor (the
corrupting party), which is the highest degree of participation
and the individual who gets accordingly the biggest prize
in real jail time.
Mr. ex-president #2 has sort of a different story, as he
was not so close to the action. He considers himself, and
he may be right about that, a big shot when it comes to tecnologías
de la comunicación (communication technologies)
and as such he was hired by a friend of his to do some asesoramiento
(professional consulting). Nothing wrong there, so far.
In another rather friendly transaction, his friend hired
another friend, who happened to be a prominent member of a
prominent party. Her expertise: filología (philology)
or correcting papers, essays and the like in the proper usage
of the Spanish language. She seems to be an expert on the
subject, as she got paid allegedly $900,000 for the job. This
is strange because Mr. Big Shot ex-president also got paid
exactly the same amount.
In addition, the friend who hired them also kept another
$900,000 for himself as payment for his networking abilities
that provided Alcatel with so much talento (talent)
at so high a price. At this point, I should add that the gerente
(manager) of Alcatel Costa Rica, who hired the friend
in the first place is the brother of the filóloga.
Remember the definition of corruptela above? Well,
the Fiscal General (DA) is working hard to find out
if this situation was a corruptela, and, if so if a
crime was committed. Nobody is calling anything a crime yet,
except Alcatel which seems to believe that its manager for
Latin America and its manager for Costa Rica conspired to
commit fraude (fraud).
This brings us to ex-president #3. His problem is that he
apparently is into asking for préstamos (loans)
from anybody. According to his own declarations he borrowed
from a certain former ICE director a total of $140,000; Mr.
Director says, instead, the money was allegedly part of the
comisión (commission) for helping Alcatel get
a government contract. In total, that company circulated about
$13 million dollars in pagos (payments) and the like.
So generous they were that even a certain head of a certain
government agency, if you catch my drift, who had NOTHING
to do with this deal, got money as well. Charges for this
case include corrupción agravada (aggravated
corruption).
That is not all, however. He also allegedly borrowed money
from the Taiwanese government and got a contract for asesoramiento
(consulting) to the Spanish company that is working on
the underground electrification project of the city of San
José. He did drop the consulting gig and his relationship
with the Taiwanese government is not really that clear, either.
Some of these events allegedly took place while he was still
in office, which qualifies him for a whole set of crimes that
may or may not apply to the other ex-presidents, among them:
enrequicimiento ilícito (illegal enrichment)
and negociaciones incompatibles (conflict of interest).
Last but not least is the oldest crimen económico
on the books: peculado (embezzlement), which is
nothing but the use of state assets to procure a personal
or patrimonial benefit. Which one do you think can be charged
with that?
*Courtesy of Guillermo Jiménez from Tico Speak
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