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Criminal court is simply no place for an expat

by Garland M Baker on August 4, 2008

Costa Rica is a sue crazy society. Many Costa Ricans and foreigners believe court is the place to solve their disputes. Because of this belief, the court system is over burdened and currently in a state of meltdown. Court cases last for years in this country, and many criminals get off because of this.

Most expats do not know how the court system works in Costa Rica. This article summarizes for the lay person the criminal court system.

To convict someone in Costa Rica for a criminal act, three elements need to exist: 1.) daño, damage, 2.) dolo, deceit, and 3.) tipicidad, the act needs to be typified as illegal.

There are two major types of criminal acts, private and public. Private criminal acts are those against the honor of someone else, unfair competition, etc. Public criminal acts are more comprehensive covering those acts against society, for example, fraud, rape, murder, etc.

Usually, proving damage is easy. Sometimes, finding the correct law to fit a crime is like fitting a round peg in a square hole, but a good and experienced criminal attorney knows the criminal code by heart and can do so without much effort. The keyword here is experienced. Many attorneys start practicing as criminal lawyers when they first get out of school but do not have enough experience to do a good job. The hard part to convict someone is showing the dolo or deceit.

Criminal court judges in Costa Rica will do everything in their power to try to show why an accused party is not guilty. The benefit of the doubt is 100 percent on the side of the accused.

There are four elements to a criminal case: 1.) the victim, 2.) the complaint, 3.) the prosecutor, and 4.) the judge or judges.
In Costa Rica, the typical victim of a crime has no voice except through the prosecutor. If a prosecutor feels there is no merit to a case — or in many cases just not important — he or she can “desestimar” or dismiss a complaint easily. Many prosecutors dismiss cases just to clean up their desks without ever doing much investigation. Prosecutors in this country are low paid and overworked. Most of them are moved from one location or job to another every few months so they never get to know any of the cases assigned to them. This is why so many cases expire, and crooks never are punished for their crimes.

For a victim to have a voice other than that of the prosecutors, he or she needs to hire an outside lawyer. The lawyer needs to file a querella, a separate accusation. This has the same information as in the prosecutor’s complaint, but it is required if the victim wants additional protection in front of the court. In the case where a prosecutor decides to dismiss a case, a victim’s attorney can continue the criminal prosecution without the prosecutor if there is a querella.

Prosecutors do not fight for damages for a victim. If an accused party is convicted of a crime, the court will only sentence the person to pay a fine or to prison time or both. If a victim wants damages, he or she needs to file another lawsuit called an acción civil resarcitoria. This is a civil component in a criminal matter to protect a victim’s private — or civil — interest.

In summary, to be fully protected in a criminal case against another person or persons, three documents need to be filed with the prosecutor’s office: 1.) the complaint, 2.) the querella, and 3.) the acción civil resarcitoria.

A major complaint everyone has with the criminal justice system in Costa Rica is that no one can count on the prosecutors. As mentioned above, prosecutors play musical chairs in their jobs being bounced from one position to another by the court system. For this reason, it is imperative to have private representation when going to battle in the criminal court. Unless a case is a high profile and well publicized issue, it will more likely than not die on the desk of someone in a prosecutors’ office.
One must be on constant alert, pushing the court to do its job at every point of the process. A victim’s lawyer must meet regularly with the prosecutor of a case to keep it alive and moving forward.

There are two times a case goes in front of a judge in the criminal process: The first is the audiencia preliminar or preliminary audience and the second is the juicio or trial. In some cases during an appeal, a third instance may occur when an additional audience is given in front of a judge. This audience is referred to as a vista or hearing.

The preliminary audience is where the prosecutor and lawyers formally present a case to a judge. It is a technical hearing dealing with procedures not facts. At this point a judge decides whether a case goes to trial or is closed. If the judge decides the case goes to trial, the case is sent to the tribunal de juicio or trial tribunal.

The trial is the only place where the facts of a case are debated. This is where one wins or loses. Appeals in Costa Rica do not re-debate the facts. An appeal only looks at technical procedures. If the appeal court finds something wrong, it will void the trial and send it back to the trial tribunal for re-trial.

One lawyer said going to trial in Costa Rica is like flipping a coin, no matter how well one prepares, judges will decide what they “damn well please.”

Expats take heed. Stay out of court, especially criminal court, unless there are no other options. The criminal court system in Costa Rica is a quagmire and a long drawn out, horrific experience. It seems the only winners are the bad guys who know how to tweak the system to their favor either by slowing down the process so cases expire or throwing up so much smoke that the judges are blinded from the facts.

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