The Criminal Process in Costa Rica

What happens after I file a criminal complaint in Costa Rica?

If you are a foreigner in Costa Rica and have had the unpleasant need to file a criminal complaint, you have already experienced a little bit of the "Costa Rican way" of doing business.

You probably had to wait in line for a long time before somebody took your statement, and if you do not speak Spanish, you were probably told to come back another day while they searched for a translator for you.

But this is only the beginning of a very long and tedious journey into the realm of the Costa Rican justice system. Knowing a little bit more about the steps involved in the process might help you to understand and be better prepared for that journey.

First of all, you will need lots of patience. The Costa Rican legal system moves slowly. If you have worked on a criminal case with a lawyer or talked about it with a friend who has some experience, you have probably heard from them that the process moves very slowly.

The first stage in the criminal process is called the Investigation Phase. During this initial stage, the authorities will receive your complaint and read you your rights as a victim. Even if you have a lawyer file a written complaint, they will want to have you come in person in order for you to ratify or confirm the contents of the complaint, and inform you of your rights as a victim in the process.

During this first stage, the prosecutor and the judicial police will try to get all the evidence they can in order to prepare a formal request to the Judge of Guarantees, or judge of the preparatory stage. This judge is the one who authorizes searches and seizures, phone taps when applicable, and any precatory measures such as preventive detention.

Once the prosecutor considers there is enough evidence, he/she will file a formal request for trial date to be set. A hearing will be called which is called the Preliminary Hearing, which marks what is known as the intermediate stage of the process. At that hearing, the parties can come to alternative exits to the criminal process, such as settlements when applicable (nonviolent crimes, no children involved, etc.), temporary suspension of the process, abbreviated process (where the defendant admits the charges and negotiates a sentence), and also the court could either dismiss the case because of insufficient evidence, or agree to send the case file to the Trial Court in order that they set a date for a public trial. If this is the case, the trial stage of the process begins.

Years may have passed by the time a trial date is set, so once again, you must keep in mind that the legal system in Costa Rica is extremely slow. But once the trial court sets a date, you are now in what is called the Trial Phase of the process. The trial is where the evidence is seen and heard, and it is the here that the parties must make their arguments to try to convince the court of their conclusions. The court will make a decision, whether to acquit or to convict the accused. Of course, the defendant has all the guarantees contained in the Constitution, such as the right to abstain from self-incrimination, and also the duty to prove that the defendant is guilty is on the Public Ministry, as the accused is presumed innocent until proven guilty beyond a reasonable doubt.

But, of course, after the trial and whatever decision is made by the court, the parties have the right to appeal. This is the next stage of the process, which means that the parties can go to a court of appeals and try to change what the trial court decided. This stage can also last a very long time, sometimes years. And when the appeals court decides, there is still a final appeal to the Supreme Court's Third Chamber, which the parties can try, called Cassation.

When the Supreme Court decides, the case is pretty much done, unless of course, the high court nullifies previous proceedings and orders a new trial, which can happen more than once here, and that is the reason why people like ex-president Miguel Angel Rodriguez Echeverria have had to endure a criminal process for 12 years now, despite the fact that twice the appeals court has acquitted him. There is anger in some sectors because the law allows this to happen, and changes are probably on their way, so as to avoid a person from being twice exposed to jeopardy of losing their liberty.

So there you have it, a short summary of what to expect in the long journey of facing a criminal process, as a victim, or as a defendant. You have to be very, very patient indeed.

Lic. Arcelio Hernandez Mussio

Attorney at Law

Notary Public

Official English/Spanish translator

Email: thankyoulawyer@gmail.com

Email: ahernandezm@abogados.or.cr

Appeals Court clears lawyer of Fruad Charges

After being held in preventive detention for a total of almost 18 months, attorney Arcelio Hernandez Mussio was cleared of fraud charges by the San Ramon Court of Appeals on February 15, 2016. The investigation on this case began back in June of 2010, when seven US citizens claimed that their lawyer, who represented an Escrow company called Bufete Hernandez Mussio y Asociados S.A., also known as CRTitle, duly registered with the financial authorities of Costa Rica to hold custody of third-party funds, had mismanaged the money entrusted to the firm for the purchase of a Samara hotel. On May 31st, 2010, a meeting was called in order to re-negotiate the terms originally agreed to in an option to purchase contract signed in March of that same year, because the US investors had not been able to put together the price, which was agreed to at $780,000. Because Hernandez lost his flight that morning, some of the US investors thought it proper to go to the Liberia branch of Scotiabank and violate bank privacy laws, by illegally obtaining information on the firm's bank accounts. Hernandez has always maintained that the reason for moving funds from one of the firm's accounts to another, was to place the funds in an account from which he could do bank-to-bank transfers, and that these movements were normal practice for the same Escrow company. But the US investors went further, and with the help of a branch manager in Liberia, managed to freeze all of the lawyer's bank accounts without a court order. Not only that, but Hernandez produced evidence during trial that the leader of the US investor group threatened him: "You better get protection", as was heard in a recording from a message left on Hernandez' cell phone that same day. After these events, a frightened Hernandez sought protection, and began to try to communicate with the investors to come to an agreement on how to return the funds, and the amount to be returned, as part of the funds that were sent to the firm's account were for legal fees, and the purchase of two Costa Rica corporations, which would have been used, had the buyer and the seller come to an agreement on new terms for the purchase, which had been a topic of discussion, and some progress had been made, as the seller had said he was willing to finance some $200,000 in order for the transaction to be completed. The Public Ministry began then to investigate movements on the firm's accounts, and used a withdrawal in the amount of $4000 which Hernandez made on May 28, 2010, as the basis for its theory that Hernandez had mismanaged the funds. Prosecutors obtained video of Hernandez withdrawing the funds from a Scotiabank branch in Santa Ana. What they did not take into account, was the fact that Hernandez had funds of his own in that same bank account, as well as funds deposited by other clients, as the account used by the US investor group, was used by the Escrow Company to receive international wire transfers, and then the funds were placed in other accounts under the control of Hernandez and his firm, as he saw fit in order to comply with the different Real Estate contracts for which he kept custody of funds. That was the basis for the grave mistakes in the investigation, in which Hernandez asked on repeated occassions to be given a formal notice by the authorities as to the amount he was to return to the investors, which had made multiple wire transfers, from local and foreign banks. Because the Public Ministry took a very strong stance based on that error, they never agreed to give Hernandez the formal notice, which is what the Appeals Court judged as a mistake, and therefore nullified the conviction which meant a 10-year prison sentence against Hernandez Mussio. The Escrow Company Bufete Hernandez Mussio y Asociados S.A. has handled hundreds of Real Estate transactions in Costa Rica, involving millions of dollars, and never had a problem such as this one, where clients violated bank secrecy laws, froze bank accounts, threatened a company representative, and then declined to negotiate a way out of the problem. Hernandez plans to file a lawsuit against the State for damages, because the law stipulates that without the formal 5-day-notice to return funds, there is no crime committed under Costa Rican law, and the prosecutors and judges involved in the case violated the fundamental rights of attorney Hernandez, for which he has already won three cases with the Supreme Court's Constitutional Chamber (Sala Constitucional). Hernandez has always had a good reputation among his national and foreign clients, and plans to continue his work in defence of father's rights and other political causes, including a better criminal policy, so that people who undergo a prison sentence have better opportunities to be rehabilitated and reinserted into productive society.

Arcelio Hernandez Mussio gana apelacion de sentencia y es puesto en libertad

Luego de pasar en prision preventiva por casi 18 meses, el abogado Arcelio Hernandez Mussio gano su recurso de apelacion ante el Tribunal de Apelacion de Sentencia de San Ramon el pasado 15 de febrero de 2016.  La investigacion en este caso comenzo en junio de 2010, cuando siete ciudadanos estadounidenses acusaron a su abogado, quien representa la compañia de custodia de fondos (Escrow) llamada Bufete Hernandez Mussio y Asociados S.A., tambien conocida como CRTitle, la cual esta debidamente inscrita ante la Sugef para la custodia de fondos de terceros, habia manejado mal el dinero confiada a su firma para la compra de un hotel en Samara. El 31 de mayo de 2010, se convoco a una reunion en la que se iba a renegociar los terminos originalmente pactados para en el contrato de opcion de compraventa firmado en marzo de ese mismo año, debido a que los inversionistas no habian logrado reunir el precio acordado de $780,000. Debido a que Hernandez perdio su vuelo esa mañana, algunos de los inversionistas estadounidenses vieron apropiado ir a la agencia de Scotiabank en Liberia y violar el secreto bancario, obteniendo informacion de manera ilegal de las cuentas de la firma. Hernandez siempre ha sostenido que la razon de trasladar fondos de una cuenta de la empresa a otra, era colocar los fondos en una cuenta desde la cual fuera posible realizar transferencias de banco a banco, y que esos movimientos eran practica normal en la compañia Escrow. Pero los inversionistas estadounidenses fueron mas alla, y con la ayuda de un gerente de la agencia de Scotiabank en Liberia, lograron congelar todas las cuentas del abogado, sin una orden judicial. No solo eso, sino que Hernandez dio prueba durante el debate de uno de los inversionistas le amenazo: "Mejor obtenga proteccion", se escucho en la grabacion de un mensaje dejado en el telefono celular de Hernandez, ese mismo dia. Luego de los hechos, un Hernandez asustado busco proteccion, y comenzo a comunicarse con los inversionistas en un intento de acuerdo sobre como regresar los fondos, y el monto a devolver, ya que parte de los fondos enviados a la cuenta empresarial eran para gastos legales, y por la compra de dos sociedades costarricenses, que serian utilizadas si el vendedor y el comprador se hubieran puesto de acuerdo en nuevos terminos para la compra, que habia sido tema de discusion, y algun progreso se habia logrado, ya que el vendedor dijo que estaba dispuesto a financiar unos $200,000 para completar la transaccion. El Ministerio Publico comenzo a investigar los movimientos en las cuentas de la firma, y utilizo un retiro de $4000 que Hernandez realizo el 28 de mayo de 2010, como base para su teoria de que Hernandez habia manejado mal los fondos. La Fiscalia obtuvo un video de Hernandez retirando los fondos de una agencia de Scotiabank en Santa Ana. Lo que no tomaron en cuenta, fue el hecho de que Hernandez tenia fondos propios en la misma cuenta bancaria, y tambien fondos de otros clientes, ya que la cuenta usada por el grupo estadounidense de inversionistas, era usada para recibir transferencias internacionales, y luego los fondos eran ubicados en otras cuentas bajo el contro de Hernandez y su firma, segun le conveniera para cumplir con los contratos de Bienes Raices para los que mantenia la custodia de los fondos. Esa fue la base de los graves errores en la investigacion, en la que Hernandez repetidamente le solicito a la Fiscalia que le hiciera la prevencion de cinco dias para la devolucion, solicito a la Fiscalia que le hiciera la prevencion de cinco dias para la devolucion, y el monto a regresar, ya que se habian realizado multiples transferencias de  bancos locales e internacionales. Debido a la posicion fuerte de la Fiscalia basada en ese error, nunca estuvo de acuerdo en hacer la formal prevencion, lo cual el Tribunal de Apelacion de Sentencia juzgo como un error, y por lo tanto anulo la sentencia condenatoria que significaba una pena de 10 años de prision para Hernandez Mussio. La compañia Escrow Bufete Hernandez Mussio y Asociados S.A. ha manejado cientos de transacciones de bienes raices en Costa Rica, que involucran millones de dolares, y nunca tuvo un problema como este, en el que clientes violaran el secreto bancario, congelaron cuentas bancarias sin orden judicial, amenazaron a un representante legal de la empresa, y luego se negaron a negociar una salida al problema. Hernandez tiene planes de demandar al Estado por los daños causados, porque la ley estipula que sin la prevencion de cinco dias para la devolucion, no hay delito, y los fiscales y jueces involucrados en el caso violaron los derechos fundamentales de Hernandez, por lo que ya ha ganado tres recursos ante la Sala Constitucional. Hernandez seimpre ha tenido una buena reputacion con sus clientes nacionales y extranjeros, y piensa continuar defendiendo los derechos de los padres, y otras causas politicas, incluyendo la politica criminal, para que las personas que deban pasar por una carcel tengan mejores oportunidades de ser rehabilitadas y reinsertarse a la sociedad productiva.

After being held in preventive detention for a total of almost 18 months, attorney Arcelio Hernandez Mussio was cleared of fraud charges by the San Ramon Court of Appeals on February 15, 2016. The investigation on this case began back in June of 2010, when seven US citizens claimed that their lawyer, who represented an Escrow company called Bufete Hernandez Mussio y Asociados S.A., also known as CRTitle, duly registered with the financial authorities of Costa Rica to hold custody of third-party funds, had mismanaged the money entrusted to the firm for the purchase of a Samara hotel. On May 31st, 2010, a meeting was called in order to re-negotiate the terms originally agreed to in an option to purchase contract signed in March of that same year, because the US investors had not been able to put together the price, which was agreed to at $780,000. Because Hernandez lost his flight that morning, some of the US investors thought it proper to go to the Liberia branch of Scotiabank and violate bank privacy laws, by illegally obtaining information on the firm's bank accounts. Hernandez has always maintained that the reason for moving funds from one of the firm's accounts to another, was to place the funds in an account from which he could do bank-to-bank transfers, and that these movements were normal practice for the same Escrow company. But the US investors went further, and with the help of a branch manager in Liberia, managed to freeze all of the lawyer's bank accounts without a court order. Not only that, but Hernandez produced evidence during trial that the leader of the US investor group threatened him: "You better get protection", as was heard in a recording from a message left on Hernandez' cell phone that same day. After these events, a frightened Hernandez sought protection, and began to try to communicate with the investors to come to an agreement on how to return the funds, and the amount to be returned, as part of the funds that were sent to the firm's account were for legal fees, and the purchase of two Costa Rica corporations, which would have been used, had the buyer and the seller come to an agreement on new terms for the purchase, which had been a topic of discussion, and some progress had been made, as the seller had said he was willing to finance some $200,000 in order for the transaction to be completed. The Public Ministry began then to investigate movements on the firm's accounts, and used a withdrawal in the amount of $4000 which Hernandez made on May 28, 2010, as the basis for its theory that Hernandez had mismanaged the funds. Prosecutors obtained video of Hernandez withdrawing the funds from a Scotiabank branch in Santa Ana. What they did not take into account, was the fact that Hernandez had funds of his own in that same bank account, as well as funds deposited by other clients, as the account used by the US investor group, was used by the Escrow Company to receive international wire transfers, and then the funds were placed in other accounts under the control of Hernandez and his firm, as he saw fit in order to comply with the different Real Estate contracts for which he kept custody of funds. That was the basis for the grave mistakes in the investigation, in which Hernandez asked on repeated occassions to be given a formal notice by the authorities as to the amount he was to return to the investors, which had made multiple wire transfers, from local and foreign banks. Because the Public Ministry took a very strong stance based on that error, they never agreed to give Hernandez the formal notice, which is what the Appeals Court judged as a mistake, and therefore nullified the conviction which meant a 10-year prison sentence against Hernandez Mussio. The Escrow Company Bufete Hernandez Mussio y Asociados S.A. has handled hundreds of Real Estate transactions in Costa Rica, involving millions of dollars, and never had a problem such as this one, where clients violated bank secrecy laws, froze bank accounts, threatened a company representative, and then declined to negotiate a way out of the problem. Hernandez plans to file a lawsuit against the State for damages, because the law stipulates that without the formal 5-day-notice to return funds, there is no crime committed under Costa Rican law, and the prosecutors and judges involved in the case violated the fundamental rights of attorney Hernandez, for which he has already won three cases with the Supreme Court's Constitutional Chamber (Sala Constitucional). Hernandez has always had a good reputation among his national and foreign clients, and plans to continue his work in defence of father's rights and other political causes, including a better criminal policy, so that people who undergo a prison sentence have better opportunities to be rehabilitated and reinserted into productive society.