Appeal of conviction for thirty-two counts of use of false documents in false tax returnsApelación de condena por treinta y dos delitos de uso de documento falso en declaraciones tributarias falsas

Resolution: 2020-1858 Case File: 14-000327-0065-PE(1) CRIMINAL SENTENCE APPEALS COURT. Second Judicial Circuit of San José. Goicoechea, at nine hours twenty minutes, on the seventeenth of November of two thousand twenty.- APPEALS filed in the present case against [Name1], of legal age, Costa Rican, identity card number CED1, born in San José, on January 4, 1949, daughter of [Name2] and [Name3], married, pensioner, resident of San José, Escazú, San Rafael; for the crime of USE OF FALSE DOCUMENTS AND OTHERS, to the detriment of PUBLIC TRUST AND ANOTHER. Judges Giovanni Mena Artavia, Rafael Mayid González González, and Alfredo Araya Vega participate in the decision. Attorney Fabio Oconitrillo Tenorio and attorney Gloriana Jiménez Rey appeared before this court as special judicial representatives of the defendant; the accused [Name1] by means of a document authenticated by Dr. Javier Llobet Rodríguez; attorney Miguel Horacio Cortes Chaves, representing the Procuraduría General de la República (Attorney General's Office), and attorney [Name4] Rodríguez Ovares, representing the Ministerio Público (Public Prosecutor's Office), Adjunta de Probidad, Transparencia y Anticorrupción (Deputy Prosecutor's Office for Probity, Transparency, and Anti-Corruption).

WHEREAS:

I.- That by judgment number 601-2019, at eight hours thirty minutes on the twenty-ninth of August of two thousand nineteen, the Criminal Trial Court of the Second Judicial Circuit of San José, resolved: "THEREFORE: In accordance with the foregoing, Articles 39 and 41 of the Constitución Política (Political Constitution), 8 of the American Convention on Human Rights; 14 of the International Covenant on Civil and Political Rights; 26 of the American Declaration of the Rights and Duties of Man; 10 and 11 of the Universal Declaration of Human Rights; Articles 1, 22, 30, 31, 45, 50, 51, 71, 73, 74, 76, 103, 193 and 372 of the Código Penal (Penal Code); Articles 1, 6, 9, 10, 12, 13, 30 subsection a, 37, 38, 40, 111 to 116, 119, 141 to 145, 175 to 178, 180 to 184, 239, 240, 244, 265 to 270, 303, 324, 340, 360 to 368 of the Código Procesal Penal (Criminal Procedure Code); 122 to 124 of the Rules in force on Civil Liability of the Código Penal of 1941; 1045 of the Código Civil (Civil Code); 16 and 42 of the Arancel de Honorarios por Servicios Profesionales de Abogacía y Notariado (Fee Schedule for Professional Legal and Notary Services) Decreto Ejecutivo (Executive Decree) number 36562-JP; 1 and 29 of the Ley de Registro, Secuestro y Examen de Documentos Privados (Law on the Registration, Seizure and Examination of Private Documents) number 7425; this collegiate court, unanimously, resolves: 1) [Name1], known as [Name1], is declared the sole author and responsible for THIRTY-TWO CRIMES OF USE OF A FALSE DOCUMENT, committed in material concurrence of offenses, to the detriment of PUBLIC TRUST, and in this capacity, THREE YEARS OF PRISON are imposed for each crime, for a total of NINETY-SIX YEARS OF PRISON; a penalty which, according to the rules of material concurrence of offenses, is finally readjusted to NINE YEARS OF PRISON; a sentence to be served in the corresponding Correctional Facility according to the Penitentiary Regulations in force. Due to the amount of the penalty imposed, it is not possible to grant any benefit to the accused. Once this judgment becomes final, the defendant must appear before this office to be placed at the disposal of Adaptación Social (Social Adaptation) and begin serving the sentence. 2) By virtue of the foregoing, which implies that the procedural situation of the accused has changed from indictee to convicted, therefore there is no longer a high degree of probability but absolute certainty of her participation in the attributed acts, and given the high penalty imposed, a reasonable presumption arises that she could attempt to evade the action of justice, understood as a procedural risk of flight, the following PRECAUTIONARY MEASURES are imposed on the accused [Name1]: a-) prohibition from leaving the country, for which she must surrender her passport to this office immediately, within the next twenty-four hours; and b-) sign in once a month at this Court on the thirtieth day of each month, or failing that, the immediately following business day, starting next month, September of two thousand nineteen. These measures are established until this judgment becomes final. 3) Also unanimously, this Court acquits [Name1], known as [Name1], of seven crimes of USE OF A FALSE DOCUMENT and of two crimes of COERCION (coacción) attributed to her as committed to the detriment of PUBLIC TRUST, FREEDOM OF DETERMINATION, and [Name5], respectively. 4) Regarding the exception of lack of standing filed by the Defense of the civil defendants against the Procuraduría General de la República, abide by what was resolved at the beginning of the trial. 5) The civil action for damages filed by the State, represented by the Procuraduría General de la República, against the civil defendants EDIFICIO ADROFER S.A., INVERSIONES BEYOF S.A., CONSULTORIA ORS y ASOCIADOS S.A., and [Name1], known as [Name1], is PARTIALLY GRANTED. They are ordered to pay, jointly and severally, the MATERIAL DAMAGE caused, which is set in the abstract. The item claimed for SOCIAL DAMAGE is dismissed. 6) The civil defendants are jointly and severally partially ordered to pay costs for the civil action, which are also set in the abstract. 7) The criminal action pursued against co-defendant [Name6] is declared extinguished due to her death; consequently, a definitive dismissal judgment is issued for the acts accused against her. The costs of the criminal action are borne by the State. Upon finality of the judgment, the destruction of the seized evidence is ordered. Once this judgment is final, the respective communication shall be made to the Registro Judicial de Delincuentes (Judicial Registry of Offenders), the Instituto de Criminología (Institute of Criminology), and the Juzgado de Ejecución de la Pena (Sentence Enforcement Court) for their respective duties. The reading of the full judgment is deferred to sixteen hours on next Thursday, the fifth of September of the year two thousand nineteen. NOTIFY BY READING.-".

II.- That against the previous pronouncement, attorney Fabio Oconitrillo Tenorio and attorney Gloriana Jiménez Rey, as special judicial representatives of the defendant; the accused [Name1] in a document authenticated by Dr. Javier Llobet Rodríguez; and attorney Miguel Horacio Cortes Chaves, representing the Procuraduría General de la República, filed an appeal.

III.- That upon conducting the respective deliberation in accordance with the provisions of Article 465 of the Código Procesal Penal, the Court considered the issues raised in the appeal.

IV.- That the pertinent legal requirements have been observed in the proceedings.

Judge of the Criminal Sentence Appeals Court Mena Artavia writes; and,

CONSIDERING:

I.- On June ninth, two thousand twenty, at thirteen hours thirty minutes, an oral hearing was held in this matter, with the presence of attorneys Javier Llobet Rodríguez and Fabio Oconitrillo Tenorio as defense counsel; [Name4] Rodríguez Ovares as prosecutor, and Miguel Cortés Chaves as representative of the Procuraduría General de la República. We, the same judges who sign this decision, made up the court at that time. In the proceeding, no evidence was produced, and the parties limited themselves to summarizing some of the arguments presented in writing.

II.- APPEAL BY THE DEFENSE OF [Name1], KNOWN AS [Name1]. In this section, encompassing considerations II through X, a response will primarily be given to the thirty-six grounds that make up the appeal filed by the defense of the accused [Name1]. Simultaneously, as the order of the topics addressed allows, the claims made by the accused in the appeal she filed separately will also be considered. When this occurs, express mention will be made to avoid confusion. Attorney Fabio Oconitrillo Tenorio and attorney Gloriana Jiménez Rey, defense counsel for the defendant [Name1], known as [Name1], file an appeal against judgment number 601-2019 of the Criminal Trial Court of the Second Judicial Circuit of San José, handed down at eight hours thirty minutes on the twenty-ninth of August of two thousand nineteen. They argue that the ruling violates the rules of sound rational criticism regarding the assessment of the evidence, because the conviction appealed, for thirty-two crimes of use of a false document, did not result from an adequate and comprehensive evaluation of all the evidence, especially expert opinion 2015-1402-AED and the final case report from the Dirección de Inteligencia de la Administración Tributaria (Intelligence Directorate of the Tax Administration). They complain of the absence of a legal analysis in the judgment under review, replaced by the mere transcription of the Ministerio Público's accusation and the evidence. In their first ground for challenge, they claim a lack of legal reasoning and absence of legal analysis of the defense's thesis regarding the apparent concurrence of norms (concurso aparente de normas). They assert that the court did not analyze the defense's interpretation that in this case there was an apparent concurrence of norms between the crime of use of a false document and the administrative infraction contemplated in Article 81 of the Código de Normas y Procedimientos Tributarios (Tax Code of Regulations and Procedures). In their opinion, this is a case of an administrative-tax nature and not a criminal one. The judging body only stated that the case under review was not among the scenarios covered by the tax regulation. After citing subsection b), item i), of Article 81 of the Código de Normas y Procedimientos Tributarios, the appellants affirm that the legislation on this matter includes, as an administrative infraction, the use of false data in declarations, from which lower taxes result, so the conduct punished here fits within that scenario; the foregoing—they clarify—without accepting that it was their client who personally inserted, prepared, or used any false data. Thus, assuming that the deductible expenses from the tax base corresponded to services not provided, the behavior described fits within the cited provision. Hence, they consider that there is an apparent concurrence of norms. In support of their thesis, they cite resolutions from the Tribunal Contencioso Administrativo (Administrative Contentious Court), the Tribunal Fiscal Administrativo (Tax Administrative Court), and a vote of the Sala Tercera (Third Chamber), for which they do not provide the number, issued at nine hours twenty minutes on the eighteenth of December of two thousand fifteen. The appellants consider that speciality must prevail, since this involves the inclusion of a false fact in a self-assessment declaration, intended to harm a supra-individual asset (the public treasury), but not public trust or any other asset, as occurs in the use of a false document; it is a specific falsehood that does not affect public trust, but rather the public treasury. In summary, they reiterate that the court did not analyze the concurrence. In the third reproach of the appeal filed by the accused personally (an appeal to which an independent section will be dedicated later), a lack of reasoning for the conviction is alleged, in relation to the application of Article 81, subsection b) of the Código de Normas y Procedimientos Tributarios. She alleges that Articles 142 and 363 subsection b) of the Código Procesal Penal, 39 of the Constitución Política, 71 of the Código Penal, 8 of the American Convention on Human Rights, and the jurisprudence of the Inter-American Court of Human Rights were violated. She affirms that the defense, in its closing arguments, argued that Article 81, subsection b) of the Código de Normas y Procedimientos Tributarios, which refers to inaccurate self-assessments, should have been applied to the case under review, excluding the application of the use of a false document. This related to the following acts and declarations: 1) D-151 number [Identification1], 2) D-151 number [Identification2], 4) D-101 number [Identification3], 5) D-101 number [Identification4], 7) D-151 number [Identification5], 8) D-151 number 15113003880516, 10) D-101 number [Identification6], 11) D-101 number [Identification7], 12) D-101 number [Identification8], 14) D-101 number [Identification9], 16) D-101 number [Identification10], 17) D-101 number [Identification11], 18) D-151 number [Identification12], 21) D-101 number [Identification13], 22) D-101 number [Identification14], 24) D-151 number [Identification15], 27) D-101 number [Identification16], 29) D-151 number [Identification17] and 30) D-151 number [Identification18]. The appellant notes that what is stated in the judgment regarding what was declared by [Name7] bears no relation to what was alleged by the defense. The court refers to an abuse of rights, which has no connection to what was claimed by the defense counsel. Likewise, the entire argument about the tax system in Costa Rica lacks relation to what was alleged by the defense. The court states that the accused's actions cannot be considered simple tax infractions, because in such a case the criminal norm applied would lose all purpose and any administrative effort to collect taxes would be futile, an argument the appellant considers fallacious, as it disregards that tax infractions are also punishable unlawful acts. It is also said that the self-assessment declarations were not due to accounting or material errors, but were deceptive, a distinction that, in the appellant's opinion, does not derive from Article 81 section b) of the Código de Normas y Procedimientos Tributarios. The court's reasoning fails to consider the expression contemplated in that subsection regarding the use of false data. The referred article penalizes tax infractions related to the improper payment of taxes; in this case, the documents that the court considers false are tax declarations, in which the law penalizes the use of false data. The annulment of the conviction must lead to the annulment of the three-year penalty for each count, since the court repeatedly based it on the fact that thirty-two uses of a false document were committed. Therefore, she requests that the ground be granted, the conviction be annulled for counts 1, 2, 4, 5, 7, 8, 10, 11, 12, 14, 16, 17, 18, 21, 22, 24, 27, 29, and 30; that, for procedural economy, the accused be acquitted of these counts and, in the alternative, the conviction be annulled and a remand ordered; furthermore, that the sentence be annulled for all crimes for which the conviction is upheld, including numbers 3, 6, 9, 13, 15, 19, 20, 23, 25, 26, 28, 31, and 32, and that, consequently, a remand for sentencing be ordered.

III.- Due to their thematic connection, both grounds summarized in the preceding considering section will be addressed jointly, and both are declared without merit. The introductory part of the claim made by attorneys Fabio Oconitrillo Tenorio and Gloriana Jiménez Rey makes a couple of general statements about the assessment of the evidence and, especially, about expert opinion 2015-1402-AED and the final case report from the Dirección de Inteligencia de la Administración Tributaria. The attorneys do not develop their criticisms in this section, as they do in later grounds. Therefore, the viability of such complaints will be analyzed when resolving those other grounds. Specifically regarding the ground alleged here, the attorneys begin by affirming that the ruling lacks legal reasoning and a legal analysis of the defense's thesis, in relation to the apparent concurrence of norms; on this point, the defendant also speaks of a lack of reasoning. The first thing that must be clear, however, is that the topic was extensively addressed by the trial court in the sixth consideration of the ruling, specifically in the section titled "ON THE DEFENSE'S THESIS" (judgment in the digital file, pp. 198 to 207). Consequently, what must be assessed is the analysis carried out by the court a quo and determine whether it reached correct conclusions on the issue raised. It is a matter of determining if the conduct for which the accused was found responsible fits the criminal definition of use of a false document (Article 372 of the Código Penal); or if, rather, it falls under the provision of numeral 81, subsection b), of the Código de Normas y Procedimientos Tributarios —or, even, if both things could occur simultaneously—. The first of the referred articles states: "Whoever makes use of a false or adulterated document shall be punished with one to six years of prison"; the other, to the extent relevant to resolving what is presented, indicates: "1. The following constitute tax infractions: […] b) Submitting inaccurate self-assessment declarations. This infraction is configured when the taxable persons fail to pay, within the legally established periods, the corresponding tax quotas, through the submission of inaccurate self-assessment declarations. For these purposes, inaccuracy shall be understood as: / i. The use of false, incomplete, or inaccurate data, from which a lower tax or a smaller balance payable or a larger balance in favor of the taxpayer or responsible person arises […] 3. Applicable Sanctions. The material infractions described in sub-subsections a), b), c) and d) of subsection 1 of this article shall be sanctioned with a pecuniary fine of fifty percent (50%) of the corresponding penalty base […]". The defense of the accused has argued that the second article constitutes a special norm with respect to the first, so that, by a relationship of speciality, it must prevail over the use of a false document. As a prerequisite for evaluating the thesis proposed by the technical and material defense, its scope of possibility must be delimited. [Name1] was convicted for preparing and submitting a series of false self-assessment declarations, in her capacity as representative of the companies Edificio Adrofer Sociedad Anónima, Consultoría ORS y Asociados Sociedad Anónima, and Inversiones Beyof Sociedad Anónima; but also, for preparing others in the name of [Name5]. Regarding these latter declarations, the defense thesis would lack meaning because subsection b) of Article 81 of the Ley de Normas y Procedimientos Tributarios (Tax Code of Regulations and Procedures) is clearly understood within the context of self-assessments that the individual makes in the framework of their tax duties, and not when engaging in overtly unlawful conduct by deceiving the tax authority by preparing fictitious self-assessments in the name of another. On the other hand, the defense's thesis regarding "the existence of an error" loses meaning when rectifying declarations are made, precisely because these seek to correct a previous error. The defendant apparently understood this, since she limited her appeal to those self-assessment declarations that did not correspond to [Name5] and were not rectifying. These are the following: D-151 number [Identification1], D-151 number CED2, D-101 number CED3, D-101 number CED4, D-151 number CED5, D-151 number CED6, D-101 number CED7, D-101 number CED8, D-101 number CED9, D-101 number CED10, D-101 number CED11, D-101 number CED12, D-151 number CED13, D-101 number CED14, D-101 number CED15, D-151 number CED16, D-101 number CED17, D-151 number CED18 and D-151 number CED19. It is with respect to such declarations that it must be answered whether subsection b) of Article 81 of the Ley de Normas y Procedimientos Tributarios should apply, excluding numeral 372 of the Código Penal. The response of this chamber is negative, for the reasons explained below. Notice, first of all, that the legal provisions under review protect completely different legal interests (bienes jurídicos). The use of a false document is located in Title XVI of the Código Penal, referring to crimes against public trust. Regarding this legal interest, legal doctrine states: "In general terms, it can be said that the crimes included in Title XII of our Código Penal [referring to the Argentine code] specify attacks on public trust, by making signifiers or documents that attest to the past appear as authentic and revealing of truth, when they are not authentic or lie about what is represented. / But all the objects of these crimes are marked by a particular characteristic granted to them by the State through its legal function: either they have been imposed as instruments of trust valid erga omnes, due to the forms of their representation or the person involved in their formation (as occurs with currency and public instruments), or they have been endowed with a certain accrediting standing regarding their origin and content so that they can effectively fulfill the function that the law itself assigns to them in transactional life (as in negotiable instruments and, in general, in so-called private instruments). But while the former are embodied in what we can properly indicate as the sphere of public trust, the latter participate in it by virtue of the effects the law grants them in the legal transactions of individuals, even if they have no consequences for those outside said transactions" ([Name8], . Derecho Penal, Parte Especial, vol. 2, 6th ed., Buenos Aires, Editorial Astrea, 1998, p. 359). Then, setting aside the doctrinal discussion that the same author mentions, about whether what is actually protected in all these criminal categories is public trust or "general confidence in the authenticity and veracity of the objects as an indispensable means for them to properly fulfill their legal purposes" (op. cit., pp. 359 and 360), the fact is that one can conclude, with the cited author, that: "In the effort to concretize the concept, it can be said that the legal interest of public trust is attacked or endangered when the objectivity introduced by the agent's conduct into the object is able to arouse in anyone the confidence it deserves, by meeting the forms prescribed by law for it to be accepted as representative of the act it expresses and, therefore, as accreditation (proof) of it" (loc. cit. p. 362). In a similar sense, and quoting [Name9], [Name10] states: "[Name9] asked: 'What is that legal interest in falsehoods? Public trust, it is customary to say.' And he explains the issue in the following way, which is more than important for introducing us to the topic: 'Public trust, means of proof, interests affected or affectable by those means of proof, are stations along the same path: that of protecting interests; but by punishing falsehoods, a system of preservation is adopted. The harm to interests, already protected by other norms, is not necessary; the danger is enough. The fight against falsehoods has a preventive character: it is a kind of social disinfection. So it is not necessary for damage to a particular party to occur (not even in that of private documents, for which our Code is satisfied with the intent to cause harm); nor is the simple alteration of the truth sufficient. Only when the false document constitutes a danger, when it is used or usable as proof to engender a disturbance in legal traffic, will the legal objectivity of the infraction have been achieved […]'" (Donna, Edgardo Alberto. Derecho Penal, parte especial, vol. IV, Buenos Aires, Rubinzal Culzoni Editores, 2004, p. 126). The fact is that, whether one speaks of public trust, confidence in the authenticity and veracity of the objects used in legal transactions, or the defense of legal traffic, what underlies this is the value placed on the fact that individuals can have security when using certain legal instruments necessary in social life —at least, as it is conceived today—. That security is undermined by whoever falsifies, adulterates, deforms, distorts, twists, misrepresents, or simulates, in their material or ideological content, those instruments. In this chamber's opinion, understanding the foregoing is of the utmost importance, because the appellate argument of the technical and material defense asserts that, in the case of the self-assessment declarations under review, for some reason, the legislator decided to create a gap in the protection of the legal interest of public trust and, quite simply, left it unprotected. In proposing the thesis of an apparent concurrence, it is affirmed that this renunciation of protection, derived from the application of the principle of speciality, was made in favor of an article that, in reality, was not designed to protect that legal interest, but a completely different one: the public treasury or public purse. Subsection b) of Article 81 of the Código de Normas y Procedimientos Tributarios allows for the sanctioning of conduct that does not even qualify as "intentional" (dolosas); it may even involve simple oversights. Certainly, it also punishes the intentional inclusion of falsehoods in the document, but this is not essential because it is enough for the declarant to incur inaccuracies for the fine provided in the same article to be applied. Note that the established penalty is designed exclusively for the tax authority to recover the amounts of which it was deprived; the purpose of going beyond the recovery of what is due and, eventually, achieving the correct adjustment of the declarant's subsequent conduct is not evident in the norm in question. The fact that the norms at issue protect different legal interests is a clear indicator that an apparent concurrent relationship cannot exist between them. As legal doctrine states, "To establish when several violated provisions exclude each other or do not exclude each other, that is, for the purpose of delimiting the apparent concurrence of laws from the ideal concurrence and the material (real) concurrence, there are two complementary criteria. On the one hand, the criterion of the legal interest is used (when the various concurring laws protect the same legal interest, it is called an apparent concurrence of norms; if both violated laws protect different legal interests, it is called an ideal concurrence or a real concurrence of crimes), and, on the other hand, the second criterion used is the technical relationship of the types among themselves. This second criterion is the application of the principles of speciality, subsidiarity, and consumption, which decides whether the criminal types confirm their independence or whether, on the contrary, one displaces the others" ([Name11], Francisco. Derecho penal, parte general, vol. III. San José, [Name12], Editorial Jurídica Continental, 2010, pp. 582 and 583, our underlining). Certainly, the same author warns us that the first criterion could have exceptions; however, in such cases, one can think of situations referring to the principle of consumption and not that of speciality. For example, in the situations cited by [Name13] when explaining the accompanying act, such as homicide encompassing ("consuming") the damage caused to the victim's clothing; the theft of a firearm with respect to its illegal possession when carrying it out; or violent sexual act and abrasions ([Name13], . Derecho penal, parte general. 4th ed., Colombia, Comlibros, 2009, pp. 1008 and 1009). Those cases, which might admit dispute regarding their categorization, are among the few examples in which the harm to different legal interests is resolved through the rules of apparent concurrence, and they refer to the principle of consumption. But when dealing with the principle of speciality, it only makes sense for the legislator to operate within the same legal interest, whether to increase or decrease its severity, in consideration of certain specializing characteristics that he values, not to leave it unprotected. That lack of protection would be, in the end, the result if the appellants' thesis were accepted. Finally, if it were argued that in Article 81 of the Código de Normas y Procedimientos Tributarios, the legislator did indeed decide to punish the transgression of public trust but, for some reason, with less severity, the reasoning would lead us to a logical problem. If it is clear, as the defense counsel expressly accept in their appeal, that this article protects the public treasury, the defense's thesis would lead to having to accept that the legislator provided a harsher penalty for those who affect only public trust (prison, according to numeral 372 of the Código Penal), than for those who harm both this legal interest and the public treasury (according to Article 81 of the Código de Normas y Procedimientos Tributarios). This, in this chamber's opinion, definitively shows that there is no relationship of speciality between the norms under review that leads to an apparent concurrence of norms. This appeals court considers that this is simply one of those cases in which the legal system addresses the unlawfulness of conduct at different levels, according to the breadth of its consequences.

Thus, the worker who insults their employer or intentionally damages their property must not only face the accusation for the respective crime, but may also be subject to a legitimate dismissal, according to labor law (Article 81 of the Labor Code); the spouse who attempts the life of their partner or prostitutes them must not only face criminal justice, but also incurs grounds for divorce (Article 48 of the Family Code); the commission of the crime of bribery may also result in the dissolution of the company on whose behalf the perpetrator acts (Article 11 of the Law on the Liability of Legal Persons for Domestic Bribery, Transnational Bribery, and Other Crimes); whoever kills the person from whom an inheritance is derived also assumes the civil consequences of unworthiness (Article 523 of the Civil Code), etc. If the harm extends to several spheres of regulated social life, the agent must face the response on several levels. That is what occurs in this case: conduct whose repercussions in two distinct spheres are addressed by the legal system in two ways that are not mutually exclusive; that is, that the defendant's conduct has criminal consequences and, simultaneously, administrative-tax consequences. Certainly, Article 66 of the Code of Tax Rules and Procedures states that, if the judicial action "[...] results in a conviction of the subject, the infractions that may be considered preparatory acts for the crime, whether acts or omissions included in the criminal type, shall be understood to be subsumed in the crime." However, this numeral regulates the non bis in idem principle between tax crimes and administrative infractions. That cannot apply here, because the use of a false document is not a tax crime. Moreover, the Constitutional Chamber itself has accepted the possibility of the concurrence of tax crimes and an administrative sanction, such as the business closure previously provided for in Article 20 of the General Sales Tax Law, stating: "Nonetheless, in the hypothesis of applying the business closure, the rule of cited Article 20 implicitly provided a sanction for the ideal concurrence equivalent to the sum of the closure sanction and the corresponding criminal sanction. The thesis is considered reasonable that, to the extent this accumulation can be justified as an integration of sanctions for the weighing of a sanction proportional to the gravity of the offense (objective gravity of the illicit act); or as an integration of principal and accessory sanctions, to protect different legal interests, it would not be unconstitutional, unless it exceeds the proportion to the objective gravity of the illicit act" (Voto 2000-08191, of 3:03 p.m. on September 13, 2000). Thus, in the face of the defense counsel's assertion that tax legislation includes, as an administrative infraction, the use of false data in declarations, from which lower taxes derive, this court expresses its complete agreement; what is not acceptable is to claim that the liability the legal system imposes on such conduct ends there. Even less can one agree when it is stated —certainly, without accompanying what was said with an argument— that the punished conduct did not affect public faith. The accredited action of inserting false facts into a document and using it is classified by the Criminal Code as a crime that affects that legal interest. Furthermore, the very argument of apparent concurrence attempted by the defense, to be coherent, must start from the premise that the conduct can indeed be classified as use of a false document, even if it is considered to better fit the administrative infraction. Thus, by indicating that what was done by the defendant [Nombre1] does not harm public faith, the defense counsel undermine their own argument. In the opinion of this appellate court, the lower court incurs the error of sustaining the thesis inverse to the defense, implying that the defendant's conduct only fits within the crime of use of a false document, excluding the administrative infraction. For all that has been said so far, both consequences (criminal and administrative) are compatible. In any case, that argumentation by the trial court does not detract from the accuracy of its conclusion in what matters here, that the criminal conduct existed and is punishable. Therefore, the criticisms that the appealing defendant launches against the judgment, although accurate on certain points, do not manage to undermine the conclusion reached by the court, since in those reasonings, the judging body sought to rule out the applicability of Article 81 of the Code of Tax Rules and Procedures, which, as stated, was not correct or necessary to declare the criminal liability of the defendant. The citation of the tax law expert Adrián [Nombre7] Navas refers to what occurs when a declaration is filed that rectifies what was previously declared. In the opinion of the lawyer, the corrective declaration causes the previous one to cease to exist, and it is even erased in the computer system (judgment, p. 83). The lower court seeks to show that the situation is not within the assumptions on which Dr. [Nombre7]'s opinion was based. However, that was unnecessary, because what this expert stated only has relevance within the scope of his expertise: on the tax topic. His opinion may be correct, or not, but that is a matter related to the administrative consequences of the conduct of [Nombre1], outside the criminal sphere. Therefore, the court did not need to direct its argumentation in that direction. The reflections on the abuse of rights were also aimed at discarding the application of the administrative consequence to what was done; in the same vein, the entire exposition referring to tax law and the civic duty to assume the burdens of the lucrative activity carried out was directed. All of this led the court to sustain that the intentional falsehood verified in the declarations could not be included in the regulation of Article 81 of the Code of Tax Rules and Procedures. However, that is not correct. As seen in the citation made at the beginning of this recital, said numeral states that the inexactitude it regulates and punishes contemplates "The use of false, incomplete, or inaccurate data, from which a lesser tax or a smaller balance payable or a greater balance in favor of the taxpayer or responsible person derives." And although the terms "incomplete" and "inaccurate" usually evoke situations of carelessness; "falsehood" is more related to conscious or intentional action. In any case, as deduced from what has been said throughout this entire recital, this panel's criterion is that it was idle for the lower court to involve itself in refuting the application of tax legislation, when what matters is that this legislation does not exclude that of the criminal law. The appealing defendant maintains that the annulment of the conviction must lead to that of the penalty of three years for each crime, since the court based it, repeatedly, on the fact that thirty-two crimes of use of a false document were committed. Not upholding her challenge on that point implies that the consequence she intended regarding the punishment is also not appropriate, without prejudice to what will be said later when the specific argumentation raised regarding the imposed penalties is assessed. Therefore, the rejection of the objections. Considerations regarding an alternative classification of the facts. Although the appellants did not raise it as part of their argumentation, the court assessed, during deliberation, an alternative thesis. This would maintain that the defendant's conducts actually constituted several crimes of fraud against the public treasury (fraude a la hacienda pública), according to the provisions of Article 92 of the Code of Tax Rules and Procedures. These would be typical, unlawful, and culpable actions, but not criminally punishable, due to the absence of an objective condition of criminality (objective condition of punishability, condición objetiva de punibilidad) (the minimum amount of five hundred base salaries in the defraudation). Each crime of fraud against the public treasury would have the virtue of excluding, by consummation/specialty—the first principle being a version of the second—any crime of use of a false document that could have been configured; this would occur only because the falsified documents are of a private and not public nature. What is not excluded is the possibility that the underlying conduct (a generic tax illicit act, which may be a crime or an administrative infraction) would be administratively punished. Thus, in an "oblique" manner, one would have to end up agreeing with the challengers, for reasons different from those argued in their appeals. The majority of this panel rules out that reading of the implicated rules, for the reasons set forth below. A.- Regarding the objective condition of criminality. The key to said explanation rests on the wording of Article 92 of the Code of Tax Rules and Procedures, which, in what matters, states: "Whoever, by act or omission, defrauds the Public Treasury with the purpose of obtaining, for themselves or for a third party, a patrimonial benefit, evading the payment of taxes, amounts withheld or that should have been withheld, or income on account of in-kind compensation, or unduly obtaining refunds or enjoying tax benefits in the same manner, provided that the amount of the defrauded quota, the unremitted amount of withholdings or income on account, or the refunds or tax benefits unduly obtained or enjoyed exceeds five hundred base salaries, shall be punished with a prison sentence of five to ten years. / For the purposes of the provisions of the preceding paragraph, it must be understood that: / a) The amount of five hundred base salaries shall be considered an objective condition of criminality (condición objetiva de punibilidad) [...]". This wording is the product of the reform carried out through Article 1 of Law No. 9069 of September 10, 2012, "Law for the Strengthening of Tax Management." It is as of that reform that it is established that the aforementioned amount shall be considered an objective condition of criminality; the previous wording did not contain that specification. It is appropriate, then, to examine what this legal category mentioned in the rule consists of. It is understood as the "Objective condition involving the occurrence of an uncertain and, according to some, future event, required by law in some crimes in addition to the typical conduct, and which is independent of the perpetrator's action" (Pan-Hispanic Dictionary of Legal Spanish, retrieved from https://dpej.rae.es/lema/condici%C3%B3n-objetiva-de-punibilidad#:~:text=Pen.,de%20la%20acci%C3%B3n%20del%20autor). Since said condition escapes the control of the perpetrator, it is not—nor does it make sense to expect it to be—covered by their intent or negligence (as the case may be). Examples cited include certain requirements of international reciprocity, which condition the criminality of crimes committed against heads of state and internationally protected persons in some countries; also the eventuality of prevailing judgments, in certain crimes committed using mechanical broadcast media or supports (see source just cited); the commission of an unlawful act, in the case of total intoxication; death or serious injury in a brawl; suspension of payments and opening of insolvency proceedings, in the case of punishable bankruptcies (Roxin, Claus. Criminal Law, General Part, Vol. I, 2nd ed., Civitas, 1997, pp. 970 and 971); or the amount of smuggling in certain customs crimes ([Nombre14], Condiciones objetivas de punibilidad, in Cajamarca Legal Journal, retrieved from https://www.derechoycambiosocial.com/RJC/Revista14/punibilidad.htm, section 3). The controversial characteristic that these conditions have is that, due to their uncertain and objective character, they must not be covered by the subjective element of the criminal type, despite being determinants for the sanction. Some authors maintain that they respect the principle of culpability and do not fall into strict liability, because they simply restrict the field of culpability; others, on the other hand, point out that if the lack of such conditions leads to impunity, then their presence grounds the punishment, which is questionable in the case of an element not governed by the subject's intentional conduct (regarding positions on this, see the last two works cited). Regardless of the position taken on this, the fact is that the foregoing allows understanding what was intended with the reform that granted the amount of the fraud the character of an objective condition of criminality. The aim, as occurs in other legislations, was to remove the amount of the fraud from the domain of intent, making any defense attempting to allege an error regarding it fruitless. As seen above, the wording of Article 92 encompasses very diverse forms of commission, some of which may involve uncertain economic results. In such cases, the inclusion of the condition prevents the perpetrator from successfully alleging that they did not know the defrauded amount exceeded five hundred base salaries; their conduct is intentional even if they had not considered that possibility, because the objective condition of criminality goes beyond the unlawful act and, consequently, need not be covered by the knowledge and will to realize the act. The division between administrative infractions and crimes already existed before the reform and continued to exist after it; the only thing the inclusion of that institution contributes is what has just been indicated. Therefore, it is not acceptable, for the majority of the court, to understand that the legislator intended to generate, as of the reform, a kind of limbo for some conducts that are neither administrative infractions nor punishable crimes, but a special category of crimes without criminal sanction or administrative consequence. It is worth dwelling on this last point, since the proposed alternative interpretation, taken to its ultimate consequences, should lead to the practical effect of impunity for all intentional fraudulent conduct whose amount was less than five hundred base salaries. Article 66 of the Code of Tax Rules and Procedures provides: "The verification of illicit tax acts must respect the 'non bis in idem' principle, according to the following rules: / a) In cases where the infractions may constitute tax crimes, the Administration shall transfer the matter to the competent jurisdiction, according to Article 89, and shall refrain from following the sanctioning procedure while the judicial authority does not issue a final judgment. The sanction of the judicial authority shall exclude the imposition of an administrative sanction for the same facts. / If the existence of the crime has not been considered, the Administration shall continue the sanctioning file based on the facts considered by the courts as proven […]" (emphasis supplied). A contrario sensu, if it is considered that the conduct in question is criminal, how can the referral of the matter to the administration to sanction the tax infraction be justified when it does not exceed five hundred base salaries? Article 90 of the same code provides: "[…] In the judgment, the criminal judge shall resolve on the application of the criminal tax sanctions to the defendant. In the event of a conviction, they shall determine the amount of the principal and accessory tax obligations, the surcharges and interest, directly linked to the facts constituting criminal tax sanctions, as well as the respective costs" (our emphasis). How could the unpaid amounts be collected if there was no conviction? Coherence would impose the total impunity of such conducts; in our view, the conclusion of the alternative thesis, which suggests the possibility of collection based on the commented Article 81, fails to consider those rules and enters into contradiction. This is particularly paradoxical, if one takes into account that the conducts that can conform to the alternative explanation are only intentional infractions. The behaviors regulated in Article 81 of the Code of Tax Rules and Procedures do not necessarily have to be intentional; on this point, the court's criterion is unanimous. Therein, a series of actions are contemplated that can even be classified as merely careless. The law decided to dispense with the subjective factor and punished from malicious conduct to simple error. But only those more serious actions, the intentional ones, have the possibility of ultimately constituting crimes (because there is no negligent fraud against the treasury) and, consequently, only they can be encompassed by the alternative theory criticized here. These, as stated, would remain without administrative sanction, but the careless actions could be punished, which makes no sense: the most reprehensible is forgiven, and what is socially less offensive is punished. All of the foregoing leads to reaffirming the meaning of what was provided by the legislator in the case of the objective condition of criminality of Article 92 of the Code of Tax Rules and Procedures: by virtue of it, it is not appropriate to allege error or ignorance regarding the defrauded amount, even though in the specific case there may be some degree of uncertainty about it, since it constitutes an objective condition of criminality, which need not be covered by intent. In the case under examination, that uncertainty does not even exist, because the perpetrator always knew how much she was failing to contribute to the State's coffers. Hence, it makes no sense to speak of an objective condition of criminality in this specific matter. In addition to the foregoing, there is a particular problem in the case: the classification of the amount of the fraud as an objective condition of criminality was born, as indicated, through a legal reform of September 10, 2012. But the judged conducts include acts from 2009 to 2013. An attempt has been made to justify its retroactive application by stating that the change was an authentic interpretation of the previously existing rule; however, there is no support whatsoever for such an assertion. In reality, it was a comprehensive reform, which changed many articles of the referred code, completely varying the wording of Article 92. Furthermore, it was not a modification more favorable to the accused, as it excludes the need for the subjective element to imply knowledge and will to defraud a determined sum; it is, rather, a modification that aggravated the situation of the potential perpetrator of that crime. Consequently, it is not a legal reform that can be applied retroactively. Thus, the thesis would not even be applicable to the majority of the documents for which the defendant was punished. B.- Regarding the apparent concurrence of laws. On the other hand, even if it were accepted that what the defendant committed were crimes of fraud against the public treasury, it cannot be sustained that between this type of crime and that of the use of a false document there exists a relationship of specialty, by virtue of which the latter is absorbed by the former. Firstly, due to the difference in the legal interests involved in each case, as explained when comparing numeral 372 of the Criminal Code with Article 81 of the Law of Tax Rules and Procedures. Second, because many of the ways of defrauding the treasury do not even require the elaboration of a document (consider omission, expressly contemplated in the criminal type, in which nothing is falsified or presented). From no point of view can fraud against the public treasury be classified as a species of the crime of use of a false document. Perhaps for this reason, the thesis under discussion must resort to the relationship of consummation and not to the specialty alleged by the appellants, pointing out that, in the end, this is a version of a specialty relationship. But in reality, this is not so; one and the other are forms of apparent concurrence that, although sometimes treated confusingly by doctrine, cannot for that reason be equated. The issue of concurrence becomes more confusing, if it is stated that absorption does not occur when a public document is involved, but does when it is a private one. Numeral 372 of the Criminal Code punishes the use of a false document of any nature, public or private. If so, it remains unexplained what rule or principle would allow excluding the application of the same crime in some cases and not in others? How is it legally explained that the same article ends up, sometimes yes and sometimes no, subjected to a relationship of consummation? For the foregoing reasons, the majority rejects that reading of the situation posed. Instead, we consider accurate the implicit interpretation underlying the judgment, and even in the defense's own appeals, according to which the amount of five hundred base salaries (together with the other objective elements not subject to analysis here) determines whether one is faced with a crime or an administrative infraction, without there being a vague, intermediate situation between the two.

IV.- The second claim of the defendant's defense counsel is incorrect legal reasoning. In proven facts 1 and 2 of the 2009 period, the court concluded that the defendant prepared and filed Declaration D 151 numbered [Identificacion1], in the name of Edificio Adrofer Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. Report 2015-1402-AED, in its results 55 and 61 (pp. 43 and 47), demonstrates that the handwriting traits of the declaration do not correspond to those of the defendant. In an interview by the Tax Administration Intelligence Directorate (annexes of the investigation report of the "[Nombre1] case"), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. Additionally, this declaration does not appear in the documentary evidence, only a detail of third-party declarations, without the defendant's signature. The sheet on which D-151 declarations are signed does not contain the detail of suppliers; rather, this is in an annex. Nor is there proof that the defendant presented this declaration at the banking institution. As a third objection, incorrect legal reasoning is claimed. In proven facts 3 and 4 of the 2009 period, the court concluded that the defendant prepared and filed Declaration D 151 numbered [Identificacion2], in the name of Consultoría ORS y Asociados Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. Report 2015-1402-AED, in its results 64 and 70 (pp. 49 and 52), demonstrates that the handwriting traits of the declaration do not correspond to those of the defendant. In an interview by the Tax Administration Intelligence Directorate (annexes of the investigation report of the "[Nombre1] case"), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. The sheet on which D-151 declarations are signed does not contain the detail of suppliers; rather, this is in an annex. Nor is there proof that the defendant presented this declaration at the banking institution. As a fourth objection, incorrect legal reasoning is alleged. In proven facts 5 and 6 of the 2009 period, the court concluded that the defendant prepared and filed Declaration D 151 numbered [Identificacion19], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. Report 2015-1402-AED, in its result 36 (p. 35), demonstrates that the handwriting traits of the declaration do not correspond to those of the defendant. In an interview by the Tax Administration Intelligence Directorate (annexes of the investigation report of the "[Nombre1] case"), [Nombre6] proved that she prepared the tax declarations for Mrs. [Nombre5]. Nor is there proof that the defendant presented this declaration at the banking institution. As a fifth objection, incorrect legal reasoning is claimed. In proven fact 7 of the 2009 period, the court concluded that the defendant prepared Declaration D 101 numbered [Identificacion3], in the name of Edificio Adrofer Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. Report 2015-1402-AED, in its result 26 (p. 30), demonstrates that the handwriting traits of the declaration do not correspond to those of the defendant. In an interview by the Tax Administration Intelligence Directorate (annexes of the investigation report of the "[Nombre1] case"), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. Nor is there proof that the defendant presented this declaration at the banking institution. As a sixth ground, incorrect legal reasoning is claimed. In proven fact 8 of the 2009 period, the court concluded that the defendant prepared Declaration D 101 numbered [Identificacion4], in the name of Consultoría ORS y Asociados Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared said declaration. Report 2015-1402-AED, in its result 32 (p. 34), demonstrates that the handwriting traits of the declaration do not correspond to those of the defendant. In an interview by the Tax Administration Intelligence Directorate (annexes of the investigation report of the "[Nombre1] case"), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. As a seventh claim, incorrect legal reasoning is argued. In proven fact 9 of the 2009 period, the court concluded that the defendant filed Declarations D 101 numbered [Identificacion20], in the name of [Nombre5]; D 101 numbered [Identificacion3] in the name of Edificio Adrofer Sociedad Anónima; and D 101 numbered [Identificacion4] in the name of Consultoría ORS y Asociados Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant filed said declarations. Nor is there proof that the defendant presented this declaration at the banking institution. As an eighth objection, incorrect legal reasoning is alleged. In proven facts 1 and 2 of the 2010 period, the court concluded that the defendant prepared Declaration D 151 numbered [Identificacion5], in the name of Edificio Adrofer Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. In an interview by the Tax Administration Intelligence Directorate (annexes of the investigation report of the "[Nombre1] case"), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. Additionally, this declaration does not appear in the documentary evidence, only a detail of third-party declarations, without the defendant's signature. The sheet on which D-151 declarations are signed does not contain the detail of suppliers; rather, this is in an annex. Likewise, it was proven that this declaration was filed by Mrs. [Nombre6], through her husband [Nombre15]'s user account. As a ninth objection, incorrect legal reasoning is invoked. In proven facts 3 and 4 of the 2010 period, the court concluded that the defendant prepared and filed Declaration D 151 numbered 15113003880516, in the name of Consultoría ORS Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. In an interview by the Tax Administration Intelligence Directorate (annexes of the investigation report of the "[Nombre1] case"), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. The sheet on which D-151 declarations are signed does not contain the detail of suppliers; rather, this is in an annex. Likewise, it was taken as proven that the declaration was filed by [Nombre6] through her husband [Nombre15]'s user account. As a tenth objection, incorrect legal reasoning is alleged. In proven facts 5 and 6 of the 2010 period, the court concluded that the defendant prepared and filed Declaration D 151 numbered [Identificacion21], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. In an interview by the Tax Administration Intelligence Directorate (annexes of the investigation report of the "[Nombre1] case"), [Nombre6] proved that she prepared the tax declarations for [Nombre5]. Likewise, it was taken as proven that this declaration was filed by [Nombre6] through her husband [Nombre15]'s user account. As an eleventh ground, incorrect legal reasoning is alleged. In proven fact 7 of the 2010 period, the court concluded that the defendant prepared Declaration D 101 numbered [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration.

In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns (declaraciones tributarias) for the defendant’s companies. As the twelfth ground, incorrect legal reasoning is alleged. In proven fact 8 of the two thousand ten period, the court concluded that the accused prepared the D 101 return number [Identificacion7], in the name of Consultores ORS y Asociados Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. Report 2015-1402-AED, in its result 32 (p. 34), demonstrates that the handwriting features of the return do not correspond to those of the accused. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for the defendant’s companies. As the thirteenth ground, incorrect legal reasoning is claimed. In proven fact 9 of the two thousand ten period, the court concluded that the accused filed the D 101 returns number [Identificacion8], in the name of Inversiones Beyof Sociedad Anónima; [Identificacion7], in the name of Consultoría ORS y Asociados Sociedad Anónima; [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima; and 101225706772, in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused filed said returns. There is no evidence that the accused filed this return at the banking institution. As the fourteenth ground, incorrect legal reasoning is alleged. In proven fact 1 of the two thousand eleven period, the court concluded that the accused prepared the D 101 return number [Identificacion9], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. The return was made through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for the defendant’s companies. It was even held as proven that this return was filed by [Nombre6]. As the fifteenth ground, incorrect legal reasoning is alleged. In proven fact 2 of the two thousand eleven period, the court concluded that the accused prepared the D 101 return number [Identificacion22], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time this return was made, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for the defendant’s companies. It was even held as proven that this return was filed by [Nombre6]. As the sixteenth ground, incorrect legal reasoning is claimed. In proven fact 3 of the two thousand eleven period, the court concluded that the accused filed the D 101 returns number [Identificacion9], in the name of Inversiones Beyof Sociedad Anónima; [Identificacion22], in the name of [Nombre5]; [Identificacion10], in the name of Edifico Adrofer Sociedad Anónima; and [Identificacion11], in the name of Consultoría ORS y Asociados Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said returns. Nor is there evidence that the accused filed this return at the banking institution. As the seventeenth ground, incorrect legal reasoning is claimed. In proven fact 4 of the two thousand eleven period, the court concluded that the accused prepared the D 151 return number [Identificacion12], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. Additionally, this return does not appear in the documentary evidence, but rather a detail of third-party returns, without the accused’s signature. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for the defendant’s companies. It was even held as proven that the return was filed by [Nombre6]. As the eighteenth ground, incorrect legal reasoning is alleged. In proven fact 5 of the two thousand eleven period, the court concluded that the accused prepared and filed the D 151 return number [Identificacion23], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared and filed the tax returns for [Nombre5]. It was even held as proven that this return was filed by [Nombre6]. As the nineteenth ground, incorrect legal reasoning is alleged. In proven fact 6 of the two thousand eleven period, the court concluded that the accused prepared and filed the corrective D 151 return number [Identificacion24], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared and filed the tax returns for [Nombre5]. It was even held as proven that the return was filed by [Nombre6]. As the twenty-first ground, incorrect legal reasoning is claimed. In proven fact 1 of the two thousand twelve period, the court concluded that the accused prepared and filed the D 101 return number [Identificacion13], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for the defendant’s companies. It was even held as proven that this return was filed by [Nombre6]. As the twenty-second ground, incorrect legal reasoning is claimed. In proven fact 2 of the two thousand twelve period, the court concluded that the accused prepared and filed the D 101 return number [Identificacion14], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for the defendant’s companies. It was even held as proven that the return was filed by [Nombre6]. As the twenty-third ground, incorrect legal reasoning is claimed. In proven fact 3 of the two thousand twelve period, the court concluded that the accused prepared and filed the corrective D 101 return number [Identificacion25], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for [Nombre5]. It was even held as proven that this return was filed by [Nombre6]. As the twenty-fourth ground, incorrect legal reasoning is alleged. In proven facts 4 of the two thousand twelve period, the court concluded that the accused prepared and filed the D 151 return number [Identificacion15], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attests that she prepared the tax returns for the defendant’s companies. It was even held as proven that this return was filed by [Nombre6]. As the twenty-fifth ground, incorrect legal reasoning is claimed. In proven facts 5 of the two thousand twelve period, the court concluded that the accused prepared and filed the D 151 return number [Identificacion26], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for [Nombre5]. It was even held as proven that this return was filed by [Nombre6]. As the twenty-sixth ground, incorrect legal reasoning is claimed. In proven facts 6 of the two thousand twelve period, the court concluded that the accused prepared and filed the corrective D 151 return number [Identificacion27], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for the companies of [Nombre5]. It was even held as proven that this return was filed by [Nombre6]. As the twenty-seventh ground, incorrect legal reasoning is claimed. In proven facts 1 of the two thousand thirteen period, the court concluded that the accused prepared and filed the D 101 return number [Identificacion16], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for the defendant’s companies. It was even held as proven that this return was filed by [Nombre6]. As the twenty-eighth ground, incorrect legal reasoning is alleged. In proven facts 2 of the two thousand thirteen period, the court concluded that the accused prepared and filed the D 101 return number [Identificacion28], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report “case [Nombre1]”), [Nombre6] attests that she prepared the tax returns for [Nombre5]. It was even held as proven that this return was filed by [Nombre6]. As the twenty-ninth ground, incorrect legal reasoning is invoked. In proven fact 3 of the two thousand thirteen period, the court concluded that the accused prepared and filed the D 151 return number [Identificacion17], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report “case [Nombre1]”), [Nombre6] attests that she prepared the tax returns for the defendant’s companies. It was even held as proven that this return was filed by [Nombre6]. As the thirtieth ground, incorrect legal reasoning is claimed. In proven fact 4 of the two thousand thirteen period, the court concluded that the accused prepared and filed the D 151 return number [Identificacion18], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for the defendant’s companies. It was even held as proven that this return was filed by [Nombre6]. As the thirty-first ground, incorrect legal reasoning is reproached. In proven fact 5 of the two thousand thirteen period, the court concluded that the accused prepared and filed the D 151 return number [Identificacion29], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for [Nombre5]. It was even held as proven that this return was filed by [Nombre6]. As the thirty-second ground, incorrect legal reasoning is claimed. In proven fact 6 of the two thousand thirteen period, the court concluded that the accused prepared and filed the corrective D 151 return number [Identificacion30], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said return. At the time of preparing this return, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Intelligence Directorate of the Tax Administration (annexes to the investigation report of “case [Nombre1]”), [Nombre6] attested that she prepared the tax returns for [Nombre5]. It was even held as proven that this return was filed by [Nombre6].

V.- Due to their thematic unity, the grounds referred to in the preceding recital will be heard jointly, and they are declared without merit. As can be seen in the framing of the objections, the appellants decided to challenge, one by one, the different events for which the accused [Nombre1] was convicted. To provide an adequate response, however, this chamber must take a different path. The accused was not charged with committing isolated and unconnected criminal acts; rather, it is affirmed that she was linked to, and actively participated in, a criminal network that carried out a plurality of actions over several years, with the participation not only of herself, but also of third parties. The criminal activity—it is said—had a certain level of complexity and required cooperation. This being the case, if one seeks to establish the truth of what happened, the first thing that must be done is to obtain an overview, starting, naturally, from the evidentiary elements. Only after understanding, in a global manner, what it was that was done, can one return to the particular, to determine what role—if any—the accused played in that factual picture. One must depart from the particular fact to arrive at that overall picture; from the analysis of the specific facts to the comprehensive vision, and then return to the particular. That was the path taken by the trial court (judgment uploaded to the virtual desktop, pp. 127 to 183), and reference will be made to it, although not necessarily in the same order of exposition, but making it clear that the comprehensive analysis of all the elements is already found in the judgment on the merits. It is opportune to indicate that the discovery of what the trial court has called the “complex plan clothed in legality” (judgment, p. 127), begins with the notice received by Mrs. [Nombre5] that she was registered as a taxpayer (obligada tributaria) with the Ministry of Finance. The revelation occurred when her son attempted to insure her as a “non-contributor,” at which time the Costa Rican Social Security Fund, performing a cross-check of data, determined that she appeared as an income taxpayer, by virtue of supposed professional services provided for years to certain companies. Mrs. [Nombre5] appeared at trial to ratify what she has repeated time and again, not only during the proceeding, but before it, within the administrative investigation carried out by the Ministry of Finance; that is, that “she never provided these services to the companies, nor could she even provide them since she was not and is not a professional” (p. 130). There is no doubt, and it has not even been the subject of controversy, that Mrs. [Nombre5] was not the author of the self-assessed returns (declaraciones autoliquidaciones) that appeared under her name with the Ministry of Finance; in fact, the pertinent graphoscopic tests were performed, confirming the foregoing. Faced with that irrefutable reality, derived both from the statement of the affected party herself and from the expert evidence, one must ask whether it could be a matter of an error by some third party. A basic analysis suffices to understand that this possibility must be discarded in limine, since the returns in question are documents in which the personal data of the person appearing as the declarant are recorded. This means that any third party who had made the assessment would have had to consult or learn the declarant’s personal information and record it in the document, knowing that they were doing so. Whoever seeks and records a third party’s information in the return is necessarily carrying out a conscious behavior, not a thoughtless or accidental action; such returns cannot be completed without knowing what one is doing. This brings us to the person who filed the false returns: the accounting assistant [Nombre6]. According to the report prepared in the administrative venue by the Intelligence Directorate of the General Directorate of Taxation, “It was also determined, from the analysis carried out on the Direct Taxation Portal, that they were filed by user [Nombre6], identity document number CED20” (judgment, p. 141), and it was further specified: “Regarding the supposed accountants, the investigation brought to light the following data: [Nombre6] and Mr. [Nombre15] were located, in order to clarify the situation, which they did on August 8, 2014. [Nombre15] indicated that he was an accountant and was registered with the respective professional association. He denied having a relationship with the accused [Nombre1] and indicated that he did not know [Nombre5]. The Tax Intelligence Section was able to establish from the interviews that the original accountant for the companies in question was Mr. [Nombre16], who had died on June 4, 2008, and that Mrs. [Nombre6], who was his accounting assistant, after his death continued with the client portfolio that he had; in the interview, she indicated having ‘inherited’ that list of clients and that she was supervised by her husband [Nombre15]. It was also possible to establish that Mrs. [Nombre6] is not a public accountant, but rather worked as an accounting assistant. She acknowledged knowing Mrs. [Nombre1] and the related companies and family members, with whom she maintained a working relationship. She indicated she did not know [Nombre5], but that nonetheless she has filed returns for her through the EDDI system and has filled out tax forms by hand” (pp. 141 and 142). In fact, the appellants do not seem to have any difficulty in accepting the participation of Mrs. Vargas Jiménez in the event, to the point that they make her the cornerstone of their argument, thereby seeking to discharge [Nombre1]’s responsibility. Having established that said filing and, in some cases, the manual preparation of the forms is attributable to [Nombre6], one must ask the reason for such action. Evidently, by recording false information in the returns and doing so for years, she exposed herself to being criminally punished, such that common sense and experience indicate that she must have had some motivation for doing so. As stated earlier, she acknowledged that the accused [Nombre1] was her client; in fact, citing the investigation, the court indicated: “the companies send them the documentation and they prepare the returns, upon preparing them they deliver them to the companies, it was said that they sent them to Mrs. [Nombre1], they were delivered to her in physical form, when it changed to digital, they prepared and uploaded them in the system, therefore, she followed, she, the one to whom they paid professional services was her husband” (p. 153). Additionally, the falsehoods in Mrs. [Nombre5]’s returns lead to three companies represented by the accused: Edificio Adrofer Sociedad Anónima, Consultoría ORS y Asociados Sociedad Anónima, and Inversiones Beyof Sociedad Anónima (pp. 133 and 134). In effect, each time it was falsely indicated that Mrs. [Nombre5] provided professional services, it was in relation to one of those three companies of which the defendant was the legal representative (apoderada). The lower court indicated in this regard: “At the outset it was possible to verify that indeed, at least three companies reported having Mrs. [Nombre5] as a provider for professional services, standing out among them ORS, Beyof, and the other, Adrofer. The ‘cross-check’ was carried out, given that these reported making payments to her for professional services and, on the other hand, it was possible to establish, by studying the Taxation database, that Mrs. [Nombre5]’s returns were available: ‘In which she declared having provided services to these three companies, in her name she declared that she had three clients,’ and on the other hand the data was obtained that these three clients for their part were reporting these payments; on this matter the witness said: ‘The cross-check was coincident, she indicates having those clients and the clients indicate having her as a provider’” (p. 151). There was an exact match: the amounts that Mrs. [Nombre5] indicated in one return as having received for professional services were equivalent to those that each company said it had paid her. But as it has been established that Mrs. [Nombre5] did not prepare the returns filed in her name, there was no benefit for her. The gain was for the companies that, by reporting the payment for those services, could deduct them when paying taxes on their income; a lower net profit had the effect of reducing the amount of their taxes. But the coincidence did not exist solely in the content of the returns. The court pointed out that “Regarding the formal duties for filing returns, the following coincidences were detected: They have the same filing date. They were filed at the same bank branch. That from the moment electronic filing was required, both the returns of the companies ORS, ADROFER, and BEYOF, as well as the returns of [Nombre5], were made under the user code belonging to Mrs. [Nombre6]. Finally, it highlights, and it is of interest to this judgment, the fact that Mrs. [Nombre5]’s returns, both informational and self-assessed, were filed by [Nombre15] and by [Nombre6]” (p. 143). And later it added: “the respective forms were filed simultaneously: ‘They were filed at the same bank branch, on the same day, both those of the company and those of Mrs. [Nombre5], even at the same teller window, and that when they were digital later, they were filed by the same person, it was the same person who filed them.’ The persons who appeared on the forms as the ‘contact’ persons were also analyzed, determining that the person who filed the returns was Mrs. [Nombre6], this person being not fictitious, but real” (p. 152). Observe, then, the astonishing coincidence that would have had to occur if the returns had in fact been filed by their legitimate holders; this would imply the randomness that whoever filed the companies’ returns would have coincided in place and time with Mrs. [Nombre5] in all cases. When filed digitally, it was done through the “user” of the person who admitted doing the accounting work for the accused, or through that of her husband [Nombre15]. All of this, without forgetting that the person who appears in the returns as the “contact person” is that accounting assistant who, nevertheless, claimed not to have known the aggrieved [Nombre5] (p. 146). It has already been pointed out that the accused [Nombre1] represented the three companies benefited by the existence of Mrs. [Nombre5]’s false returns, which corresponded exactly with those of the companies in question. But, furthermore, there is evidence that, over the years, she prepared and signed many of the false returns corresponding to those companies. They are the D-101 number [Identificacion3] and D-101 number [Identificacion4], in the year two thousand nine; D-101 number [Identificacion6], D-101 number [Identificacion7], from the two thousand ten period; D-101 number [Identificacion9], from the year two thousand eleven (pp. 185 to 192); she also prepared those identified as D-101 number CED9, D-101 number CED11, and D-101 number CED12, but for reasons to be explained in recital XII, they are not to be taken into account at this time. The graphoscopic test performed on the referred returns made it possible to establish, scientifically, that the accused prepared and/or signed those returns directly. But as stated earlier, the stratagem was effective insofar as the falsehood in the expenses on the companies’ returns fit perfectly with the fictitious returns of Mrs. [Nombre5], which implies that whoever prepared the former had to do so with full knowledge of what was recorded in the latter; otherwise, the deception of the tax authority would collapse. Whoever, like the accused, knew she was recording false data in the income tax returns (declaraciones de renta) had to know of the concomitant falsehood in Mrs. [Nombre5]’s returns, so that there would be no fissures in the illegal mechanism. But, additionally, this reveals that she knew the details of the fraudulent procedure from which, ultimately, the companies she represented were the major beneficiaries. When the illicit conduct began to come to public light, new indications emerged. One of them is that, also with astonishing coincidence, actions were undertaken aimed at erasing the traces of the crime. Corrective returns were prepared by the person who, it is reiterated, had indicated having no relationship with Mrs. Otárola: [Nombre6].

The lower court points out in this regard: “The report makes it evident that in the case of [Nombre5], her income tax returns were amended, leaving the returns at zero and the informative returns were annulled where they indicated that Inversiones Beyof had paid professional fees to Mrs. [Nombre5], leaving them in the informative database for one colón, where it was recorded that Mrs. [Nombre6] paid [Nombre5] the sum of one colón for professional fees. In this regard, the report states: ‘making it evident that the process was carried out by Mrs. [Nombre6] [Nombre6], the accountant of Mrs. [Nombre1], and who said she did not know Mrs. [Nombre5]. Therefore, if she does not know Mrs. [Nombre5], how is it that she has the access to know the returns that had been filed in the name of Mrs. [Nombre5], since to make an amendment, she must have in her possession the information of the return to be amended, be it the taxpayer's personal data, the return number, or the amounts. This modification to erase the trace that Mrs. [Nombre5] had no relationship with the companies of Mrs. [Nombre1], she manages to do it for three years which is what the system allowed her, but not for the year two thousand eleven’” (Cf. report of the Tax Intelligence Directorate, page 58. Added to the electronic file). With the foregoing, the question arises of how they could make the amendments and annulments of the returns, because the only way to make these modifications and annulments is through the original returns; however, the accountants did not have access to such information” (pp. 143 and 144). This is confirmed through the testimony of witness [Nombre17], investigator of the Tax Intelligence Directorate, from which the court highlighted the following: “The witness also referred to the amended returns, which he was able to verify and document even in the report as we saw; regarding them, he indicated that they occurred in the year 2014, specifically on the tenth of July, noting that it was Mrs. [Nombre6] who: ‘enters with a password and modifies all the returns of Mrs. [Nombre5], the system allowed her to go back three periods, up to income tax and the D-151 returns, all modified on the same day, July 2014; on August 20, there was another modification in the informative returns of Mrs. [Nombre5], the system allows clarifying amendments, it was done for the amount of one colón, it imputed to [Nombre6], as if this Mrs. [Nombre5] had paid her the amount of one colón, I do not remember the reason,’ regarding which he considered as the reason for this course of action, taking into account particularly from the perspective of the Intelligence Directorate, was that with this ‘she wanted to erase the tax trace of those companies.’” (pp. 146 and 147). And the court also highlighted an important detail narrated by Mr. [Nombre17], which reveals the irregularity that was intended to be hidden; the lower court states: “Regarding the scope of the amended returns, the witness indicated that in any type of return, when the taxpayer: ‘Makes an accounting error, or in the transcription an erroneous piece of data was recorded, less or more income or expenses were declared.’ He clarified with respect to this that: ‘It is not normal to amend for several periods and several companies and to want to erase a trace. Upon being amended, there were no longer imputations between the companies, she made the modifications [Nombre6], later they made another amendment, so that return was left with a cutoff of one colón, the same lady paid her one colón, for a professional service; they try to zero out that of [Nombre5], they could not delete it, what they did was amend the amount. The imputation for us: as a taxpayer I request a service of any type or purchase of any type, I acquire, I pay commissions, rents to person x, I paid that service of such amount, the imputation is that that person comes to say, yes it is true, they paid me that amount, or more or less, the information cross-check that we call “shadow” occurs’” (pp. 148 and 149). Karla Salas Corrales, Director of the Intelligence Directorate, spoke in a similar vein, as the trial court recorded: “She also highlights that when the decision was made to conduct the audits, the information they had of the self-assessment returns of Mrs. [Nombre5] and of the companies was as of the fourth of July, but on the tenth of July the amended returns were filed in the name of those three companies and of [Nombre5]. Regarding what could be verified from these amended returns, the witness states that: ‘When the audit begins, two companies were selected for audit, the returns were available; on July 10 those amendments are entered and the name of [Nombre5] is eliminated, and the returns of [Nombre5] were also corrected, they corrected them, they left them at zero, she no longer had income or expenses, and the returns of the companies, the informative returns are corrected. The Audit Directorate, when it manages to begin, must start from the last return and by then it was no longer there, the work is done on the last return, no longer reports of Mrs. [Nombre5]. The records are not erased, we therefore have both returns, those filed in the corresponding period and then in July.’ In addition to this situation, the fact that the same pattern continued regarding the filing of the documents also caught their attention, in the sense that they were filed simultaneously: 'the same common denominator, these amended returns were filed on the same day and by the same person.’” (p. 155). It seems obvious that, when amendments are due to errors made, they are sporadic. It is practically impossible that one could have been so clumsy as to have made mistakes in all the returns filed for several years in the name of Mrs. [Nombre5], and it is very suspicious that the need for amendment arose when the illicit scheme was being revealed. Therefore, we can conclude, following the cited specialists, that the amendment of multiple returns, besides being a practically improbable coincidence, is a clear indicator of the attempt to erase traces of the irregular action. But to this is added one more element, and that is that the person who identified herself as the accountant of the accused called Mrs. [Nombre5], with murky intentions, as she made clear at trial. This happened after the case against the defendant was reopened. What said alleged accountant intended was for her to communicate with the accused [Nombre1], something that Mrs. [Nombre5] says she did not do at first, although later she did (pp. 170 and 171). What is gleaned from this is the confirmation of the knowledge of [Nombre6], in the first place, and of the accused, in the second place, about the procedure that had been carried out; the latter, faced with the problem she was facing, wanted to communicate with the injured party. That interest in communicating was satisfied when the accused managed to speak by phone with Mrs. [Nombre5], a call whose recording even received coverage in the media. As will be seen further on, this appellate court considers that the recording of said call is illegal. Therefore, it is not valid to use it as evidence. However, the memory retained by Mrs. [Nombre5] was sufficient to completely confirm the involvement of [Nombre1] in the charged offenses. As befits someone who had been discovered committing criminal conduct, the accused asked the aggrieved party to recant, to fail to tell the truth before a journalist, so that the entire scheme in which she had participated would not be revealed. The court reproduced the witness's words in these terms, and made the respective comment: “‘I received the reporter from a television channel and a week or days later, a journalist from La Nación, while talking with this journalist, who did not understand how a seamstress knew Mrs. [Nombre1], then the call that became public came in, at that moment there was a reporter from La Extra and one from La Nación, I answered, my phone was old, you had to answer on speakerphone, my son had given me a bad phone, I put one phone next to the other to record the lady's voice, the rest is public, the subsequent process is already known… Two journalists were present during the call, named [Nombre4], one with the last name [Nombre18], they listened to the call, they were from La Nación and La Extra. In the call she asked me please, —Mrs. [Nombre1] (she identified herself)— to recant to the journalist, that she would help me with a pension and a house, it was a long call, many things, that I had to recant, that this affected me, that she would take care of helping me with a pension and with insurance, I am paraphrasing, I do not remember the literal words. I recorded that call, the reporter also recorded it, that call became public, that was not my intention, it was not the intention to record it. My intention was, try to put yourself in my place, a person without education, without money, without position, my word for the most part was worthless, I had to rely on another person to reopen my case, already archived, my intention was that the day I go to trial and I, with her own voice accepting, not my voice accusing her of such an unpleasant crime, in that process, it is her own voice that accuses her. The socioeconomic and political level, she committed a crime and someone has to make her see it, it is the proof that I was telling the truth. When that call came in I didn't know it was from her. I decide to record it, I cannot say at what moment, it was not planned, I answered on speakerphone, I put the other phone to record while answering on speakerphone. I am clear that she wanted me to stop the reporter so the matter would not be made public. I felt, upon receiving that call, furious, the only word I can think of.’ And she explains that she felt furious because for her, Mrs. [Nombre1] was a lady, a lady in all fields, whom she saw as a model, brave, with a career, performing in the world in a valuable way, and that ‘image of honorability collapsed’ for her” (pp. 172 and 173). All of the foregoing leads to a conclusion —as the synthesis that must be reached— which is that the accused, consciously, formed part of an organization that carried out multiple crimes, over several years, with the aim of benefiting three family companies of which she was the legal representative, performing material acts aimed at consummating the crimes, and clearly knowing that, through an intermediary, she consummated others. There was, at least, the participation of the accounting assistant [Nombre6], in the development of the operational parts, and with the connivance of her husband who, in his capacity as an accountant, gave a certain formality to the recording of the accounting operations; but what is clear, patent, and manifest is that all the criminal actions ended up benefiting, fundamentally, Edificio Adrofer Sociedad Anónima, Consultoría ORS y Asociados Sociedad Anónima, and Inversiones Beyof Sociedad Anónima. This allows us to address the claims that are rejected in this section, since, as can be seen, the appellants seek to exclude the responsibility of the accused, relying on certain common arguments, which are not acceptable. First, it is claimed in them that the court attributes to [Nombre1] having prepared and/or filed the returns. This is not accurate; the court stated in each case that the filing was done directly, or through an intermediary, which is effectively true. The participation of the accounting assistant [Nombre6], which the appellants not only do not deny, but reaffirm as the core of their claims, was an essential part of the criminal enterprise carried out, as already noted. But as was pointed out earlier, the criminal operation was acquiring meaning in terms of someone who benefited from it, who was not, at least principally, [Nombre6]. Thus, when in the second claim, the appellants state that in proven facts 1 and 2 of the two thousand nine period, the court concluded that the accused prepared and filed the D 151 return number [Identificacion1], in the name of Edificio Adrofer Sociedad Anónima, the first thing that must be clarified is that what the lower court attributed to her was having prepared it, but not necessarily having filed it; the latter was done —the judgment states— personally or through an intermediary. Precisely, this is where the acknowledgment of [Nombre6] of having participated in the processing of the tax returns of the company in question becomes relevant, a detail that the challengers peacefully accept. Everything stated earlier is also relevant, that her participation could not be the product of an error, but part of a duly orchestrated and operationalized criminal plan. It is from this participation that it is confirmed that having included in the return the expense of three million five hundred thousand colones was part of the setup that, time and again, the individuals involved carried out. Precisely, the participation of [Nombre6], coupled with the fact that, ultimately, the return served to reduce the taxable amount of the referenced company, represented by [Nombre1], shows that the falsehood was one more of the actions whose general knowledge was revealed by the accused through her conversations with [Nombre5]. It is here where the importance is made evident, in the judgment of this court, of having sought, in the first place, to reconstruct the general panorama of the criminal action and the role of the accused within it. The fragmented analysis proposed by the appellants in this ground as in the other twenty-nine analyzed here, is evidently ineffective in reconstructing what actually happened. It must be pointed out that, regarding the mentioned return, the court incurs in an error by stating that it was prepared by the defendant. In reality, the evidence indicates that the comparison elements provided (documents with signatures and handwriting features of the accused), are of a different model from those appearing in said document (report 2015-1402-AED, in Investigation File part 14, images 26, 27, and 30). The accusation did not have that inaccuracy, since it recorded that “the accused [Nombre1] and [Nombre6], prepared the Annual Summary Return of Clients, Suppliers, and Specific Expenses, form D-151, number [Identificacion1] in the name of the company Edificio ADROFER Sociedad Anónima” (accusation, images 3 and 4), whereby the Public Prosecutor's Office left open the possibility that the preparation itself could have been done by [Nombre6], as the appellants suggest. However, the imprecision committed lacks consequences, since the actual use of a false document, which is attributed to the defendant, is narrated in the second accredited fact of the year two thousand nine, in which it is correctly stated that the defendant acted personally or through an intermediary, which is true, according to the analysis carried out throughout this considerandum. The appellants state that the referenced return is not included in the documentary evidence. This is not true. In the returns field, at folio 250, the manila envelope containing the return for the two thousand nine period, number [Identificacion1], can be seen. The document records, in the space for “taxpayer or legal representative”, the name “[Nombre19]” ([Nombre20]) “” ([Nombre21]) and her ID number, as well as a signature, all apparently in ballpoint pen ink. It is pointed out that the supplier detail is not provided, but in an annex. Certainly; because that is the format presented by the Tax Directorate of the Ministry of Finance for the return. A document called “Annual Summary Return of Clients, Suppliers, and Specific Expenses” is seen, to which another identified as “Detail Sheet” is added. However, their relationship is indubitable, not only because they correspond to the same year and the same declaring company, but also because they show coinciding information. Thus, the return refers to two professional fees for a total of three million six hundred thirty-three thousand three hundred thirty-three colones. The detail sheet, for its part, specifies the existence of two beneficiaries: [Nombre15], for one hundred thirty-three thousand three hundred thirty-three colones; and [Nombre5], for three million five hundred thousand colones. In other words: the annual summary return of clients and suppliers and expenses of Edificio Adrofer Sociedad Anónima for the year two thousand nine perfectly coincides with the detail sheet in the name of the same company and for the same year, which simply specifies who those service providers are and how much was paid to each one. In the third reproach, the challengers claim that in proven facts 3 and 4 of the two thousand nine period, the court concluded that the accused prepared and filed the D 151 return number [Identificacion2], in the name of Consultoría ORS y Asociados Sociedad Anónima. In this case, this is not true, in the first place, because here the lower court did use the formula of the accusation, in which it is indicated that the preparation of the document was the product of the collaboration obtained by the defendant from the accused and [Nombre6] [Nombre6]. Thus, the fact that the Tax Administration established, as the appellants correctly state, that Mrs. Vargas prepared and filed the tax returns of the companies represented by [Nombre1], is something that links the latter, following the explanation given in this considerandum. Thus, although it is true that report 2015-1402-AED, in its results 64 and 70 (Investigation File part 14, images 31, 32, and 35), indicates that the signature on the document is of a different model from that of the accused and the individualizing characteristics of her handwriting are not present in the return, this does not lead to disproving her participation in the illicit act. On the other hand, it must again be reiterated that the lack of indication of the suppliers in the D-151 return is a particularity of the document itself, which must be complemented by the detail sheet in which such data are indicated. In the returns field, at folio 296, there is a manila envelope containing inside, among others, the Annual Summary Return of Clients, Suppliers, and Specific Expenses of Consultoría ORS Sociedad Anónima which records two professional fees for a total of three million six hundred thirty-three thousand three hundred thirty-three colones; furthermore, it is duly signed and records as the issuer [Nombre1] “[Nombre20]” (sic). The attached detail sheet specifies that such professional fees were provided by [Nombre15], for one hundred thirty-three thousand three hundred thirty-three colones, and by [Nombre5], for three million five hundred thousand colones. As can be seen, the sum of both items fully coincides with the total of the return. The fourth objection formulates identical arguments regarding proven facts 5 and 6 of the two thousand nine period, with respect to the D 151 return number [Identificacion19], which warrants reiterating the response given in the previous point. In this case, it is not necessary to show the challengers the existence of the document, since here it is not denied. The same must be said regarding the fifth objection, related to proven fact 7 of the two thousand nine period and the D 101 return number [Identificacion3], in the name of Edificio Adrofer Sociedad Anónima; regarding the sixth ground, which speaks of proven fact 8 of the two thousand nine period, concerning the D 101 return number [Identificacion4], in the name of Consultoría ORS y Asociados Sociedad Anónima; in relation to the seventh claim, pertaining to proven fact 9 of the two thousand nine period, concerning the D 101 returns number [Identificacion20] in the name of [Nombre5], D 101 number [Identificacion3] in the name of Edificio Adrofer Sociedad Anónima, and D 101 number [Identificacion4] in the name of Consultoría ORS y Asociados Sociedad Anónima; and regarding the eighth reproach, referred to proven facts 1 and 2 of the two thousand ten period, concerning the D 151 return number [Identificacion5], in the name of Edificio Adrofer Sociedad Anónima. Faced with identical arguments, it is appropriate to reiterate regarding them the response already provided. In this last claim, referring to the year two thousand ten, it must additionally be taken into account that the allegation is repeated that the return is not included in the documentary evidence, but rather a detail of third-party declarations, without the accused's signature. Here, the clarification made by the Tax Intelligence Directorate of the Ministry of Finance must be taken into account: “For the year 2010, [the return] was filed electronically, through Declara version 4.0.2, according to information provided by the DTIC (which stands for Directorate of Information and Communication Technologies), which has an email address: [...], corresponding to the contact name [Nombre15], telephones 2285-3731. [by virtue of which] A certified printout from SIIAT of said return (certified) number [Identificacion5], filed on November 27, 2010, is attached” (returns field, certification of f. 98). It is not appropriate to demand the presentation of a physical return that never existed, because the one made was done through computer means. For this reason, a certification of the return was provided (returns field, certification of fs. 220 to 222). Certainly, the detail of the suppliers is appreciated on the second folio of the content of the certification, the exact correspondence between the two being visible, since the first speaks of two operations for four million colones and one million colones; while in the detail it is shown that the one million corresponds to [Nombre5] and the four million to Inversiones Regiofe Sociedad Anónima. As the appellants make clear, in this case the return was filed by [Nombre6] through the user account of her husband [Nombre15], which changes nothing of what has been considered up to now. The basis of the ninth reproach is similar to that of the eighth, only that it refers to proven facts 3 and 4 of the two thousand ten period, regarding the D 151 return number CED6, in the name of Consultoría ORS Sociedad Anónima. It is worthwhile reiterating, then, the inaccuracy of the appeal, in pointing out that the preparation and filing of the document was attributed to the accused, when the facts refer to the joint participation in the preparation by the accused and [Nombre6] and the filing of the document by the latter. Again, it is her intervention, through her husband's “user account,” that confirms, instead of disproving, the involvement of [Nombre1] in the crime, due to the link that existed between the two, as has been analyzed since the beginning of this considerandum. Regarding the issue of the supplier detail, in the sense that they are in an annex, again it must be indicated that in the year two thousand ten this return was filed electronically, through Declara version 4.0.2, according to information provided by the Directorate of Information and Communication Technologies (declarations file, certification of fs. 98 vto. and 99), for which a certification of the digital record was provided. In this, it is clearly established, on its first folio, that the company in question made two payment operations for services, one for four million seven hundred fifty thousand colones and another for four million. Both fit perfectly with the following sheet of the certification, which indicates that in that year, to that company and regarding that return, services were provided by [Nombre5], for four million, and Inversiones Beyof Sociedad Anónima, for four million seven hundred fifty thousand colones. Once again, the allegation is reiterated that attributes to the court having stated that the preparation and filing of the returns corresponded to the accused, in the tenth reproach, referring to proven facts 5 and 6 of the two thousand ten period, concerning the D 151 return number [Identificacion21], in the name of [Nombre5]. It is also reiterated in it that the filing of the documents was the exclusive responsibility of [Nombre6], through her husband's “user account.” It is then worthwhile answering, in this respect, that what is affirmed that the court said does not coincide with the letter of what is indicated in the facts, as can be easily verified, and that the participation of [Nombre6] does not exclude, but rather confirms, the involvement of the accused, as has been amply and repeatedly indicated. The eleventh ground, referring to proven fact 7 of the two thousand ten period, related to the preparation of the D 101 return number [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima, must receive a slightly different treatment. This is because it was even signed by the accused, as was established by the expert in report DCF 2015-01402-AED of the Section for the Analysis of Handwriting and Questioned Documents of the Department of Forensic Sciences, in its result twenty-one (Investigation File, part 14, images 10 and 11). This, without prejudice to reiterating that the participation of [Nombre6] was done in collusion with the accused. Something similar occurs with the twelfth ground, concerning proven fact 8 of the two thousand ten period, referring to the D 101 return number [Identificacion7], in the name of Consultores ORS y Asociados Sociedad Anónima, since there is also expert evidence there that establishes that the visible signature on the document is that of the accused, as indicated by report DCF 2015-01402-AED of the Section for the Analysis of Handwriting and Questioned Documents of the Department of Forensic Sciences, in its result 27 (images 13 and 14), although certainly, as the appellants indicate, the manuscripts and numbers were not related to her handwriting features (image 17). In the thirteenth ground, referring to proven fact 9 of the two thousand ten period, it is said that the court concluded that the accused filed the D 101 returns number [Identificacion8], in the name of Inversiones Beyof Sociedad Anónima; [Identificacion7], in the name of Consultoría ORS y Asociados Sociedad Anónima; [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima; and 101225706772, in the name of [Nombre5]. However, this is not true, since what the court indicated is that she did it personally or through an intermediary. In any case, it is worth advancing that, in considerandum XII of this judgment, particular treatment will be given to the return [Identificacion8], for the reasons that will be stated there. Equally, it is attributed to the court, in the fourteenth ground, related to proven fact 1 of the two thousand eleven period, having concluded that the accused prepared the D 101 return number [Identificacion9], in the name of Inversiones Beyof Sociedad Anónima, when this is not true, since the judging body pointed out the existence of a plan designed by [Nombre1] and [Nombre6] to defraud the tax administration and attributed the preparation of the document to them, it being possible that either of the two did it, as the plan was common. Certainly, the return was made through the [...] system, by [Nombre6], which involves the one judged here by virtue of the widely explained plan. Identical considerations to those set forth regarding the previous ground are applicable to the fifteenth ground, referring to proven fact 2 of the two thousand eleven period, concerning the D 101 return number [Identificacion22], in the name of [Nombre5]; to the sixteenth ground, related to proven fact 3 of the two thousand eleven period, pertaining to the D 101 returns number [Identificacion9], in the name of Inversiones Beyof Sociedad Anónima; [Identificacion22], in the name of [Nombre5]; [Identificacion10], in the name of Edificio Adrofer Sociedad Anónima, and [Identificacion11], in the name of Consultoría ORS y Asociados Sociedad Anónima. It is also worth advancing that in considerandum XII, for the reasons that will be explained there, particular treatment will be given to returns [Identificacion10] and [Identificacion11]. In the seventeenth ground, related to proven fact 4 of the two thousand eleven period, it is said that the court concluded that the accused prepared the D 151 return number [Identificacion12], in the name of Inversiones Beyof Sociedad Anónima. Certainly, it is indicated as such in the proven fact, when in reality it was not accredited that she did it by her own hand, as is implied. However, the error was corrected in the reasoning, in which it was made clear that, as in all the development of the criminal activity, the accused acted in collusion with [Nombre6] (judgment, p. 192). This collusion was accredited, once again, from the fact referred to by the appellants that the return was made by [Nombre6] through the [...] system. It is said that the return is not included in the documentary evidence, but rather a detail of third-party declarations, without the accused's signature, which is due precisely to the fact that it was filed in digital form.

Regarding the eighteenth ground, related to proven fact 5 of the two thousand eleven period, concerning declaration D 151 number [Identificacion23], in the name of [Nombre5], the assertion that the court attributed the making of the document to the defendant must again be classified as inaccurate, when it referred to a concerted action with the person to whom the accused attribute all responsibility for the action. The same response must be given to the nineteenth ground, regarding proven fact 6 of the two thousand eleven period, related to the corrective declaration D 151 number [Identificacion24], in the name of [Nombre5]; to the twenty-first ground, referring to proven fact 1 of the two thousand twelve period, regarding declaration D 101 number [Identificacion13], in the name of Inversiones Beyof Sociedad Anónima; to the twenty-second ground, regarding proven fact 2 of the two thousand twelve period, linked to declaration D 101 number [Identificacion14], in the name of Inversiones Beyof Sociedad Anónima; to the twenty-third ground, referring to proven fact 3 of the two thousand twelve period, related to the corrective declaration D 101 number [Identificacion25], in the name of [Nombre5]; to the twenty-fourth ground, regarding proven fact 4 of the two thousand twelve period, referring to declaration D 151 number [Identificacion15], in the name of Inversiones Beyof Sociedad Anónima; to the twenty-fifth ground, which questions proven fact 5 of the two thousand twelve period, linked to declaration D 151 number [Identificacion26], in the name of [Nombre5]; to the twenty-sixth ground, related to proven fact 6 of the two thousand twelve period, regarding the corrective declaration D 151 number [Identificacion27], in the name of [Nombre5]; to the twenty-seventh ground, regarding proven fact 1 of the two thousand thirteen period and declaration D 101 number [Identificacion16], in the name of Inversiones Beyof Sociedad Anónima; to the twenty-eighth ground, regarding proven fact 2 of the two thousand thirteen period, referring to declaration D 101 number [Identificacion28], in the name of [Nombre5]; to the twenty-ninth ground, regarding proven fact 3 of the two thousand thirteen period and declaration D 151 number [Identificacion17], in the name of Inversiones Beyof Sociedad Anónima; to the thirtieth ground, regarding proven fact 4 of the two thousand thirteen period, concerning declaration D 151 number [Identificacion18], in the name of Inversiones Beyof Sociedad Anónima; and to the thirty-first ground, regarding proven fact 5 of the two thousand thirteen period, concerning declaration D 151 number [Identificacion29], in the name of [Nombre5]. Finally, although in the thirty-second ground, referring to proven fact 6 of the two thousand thirteen period, concerning the corrective declaration D 151 number [Identificacion30], in the name of [Nombre5], the error was also made in the judgment of attributing the making to the defendant, without having grounds to do so, the truth is that in the reasoning it was made clear that it was a joint action with [Nombre6] (judgment, p. 197). But, furthermore, it was indeed made clear, at both moments of the ruling, that the filing was done by the latter. For all the foregoing, the rejection of the referred grounds is imposed.

VI.- As a twentieth ground, contradictory reasoning is alleged. In proven fact 7 of the two thousand eleven period, the court concluded that the defendant made the corrective declarations D 151 numbers [Identificacion31], [Identificacion32], [Identificacion33], and [Identificacion34], in the name of Inversiones Beyof Sociedad Anónima. However, it acquitted her of the crime of use of a false document, because within said declarations there is no element that is not true, because the expenses reported in the name of [Nombre5] are eliminated. The appellants consider it nonsense that their client was convicted for the corrected tax declarations (juridically non-existent) and acquitted for the corrective declarations that annulled the first ones. Article 130 of the Tax Code (Código de Normas y Procedimientos Tributarios) contemplates the corrective declaration, which may cover any item, without limitation. The appellants refer to Article 20 of resolution DGT-R-026-2011 of September 30, 2011, from the Tax Administration Directorate (Dirección General de Tributación). According to the testimonial evidence, when the taxpayer makes a correction, the initial declaration loses all legal effects, since it is replaced by the new one. The defendant is charged with two uses of a false document for the two thousand eleven period, regarding non-existent declarations. An impossible crime is charged “because the object of the charged crime no longer exists.” In Article 92 of the Tax Code (Código de Normas y Procedimientos Tributarios), the corrective declaration is contemplated as an exculpatory legal excuse. This is not admissible. It is worth clarifying, here as well, the imprecision of the appellants when they indicate that the court attributed to the defendant, in proven fact 7 of the two thousand eleven period, the making of the corrective declarations D 151 numbers [Identificacion31], [Identificacion32], [Identificacion33], and [Identificacion34], in the name of Inversiones Beyof Sociedad Anónima. The wording of the proven fact attributes the making to both the defendant and her collaborator [Nombre6]. However, the particularity of this claim is that this does not constitute the core of the complaint, because the defendant was not punished for that making. Insofar as they were corrective declarations, which corrected prior falsehoods, an acquittal was issued given that they no longer contained false information. Therefore, the challengers rather question the conviction for the corrected declarations, because, legally, they no longer exist. The first pillar of the appellants' argument is that Article 130 of the Tax Code (Código de Normas y Procedimientos Tributarios) contemplates the corrective declaration. This is certainly so. The referred article indicates: “Corrective declarations / The sworn declarations or statements made by taxpayers (sujetos pasivos) are presumed to be a faithful reflection of the truth and make the declarant responsible for the taxes resulting from them, as well as for the accuracy of the other data contained in such declarations. / Likewise, taxpayers may correct their tax declarations, taking into account the following aspects: / a) When taxpayers correct their tax declarations, they must file, at the authorized locations, without prejudice to the provisions of paragraph e) of this article, a new declaration in the formats defined by the Tax Administration, and must pay a higher tax when applicable, together with its accessory charges, such as interest established for late payment. / b) Any declaration that the taxpayer files after the initial one shall be considered a correction of the initial one or of the last corrective declaration, as the case may be. / c) The correction of the tax declaration may cover any item that affects the taxable base of the tax or the forms of extinction of the corresponding tax obligation. / d) The correction of the declarations referred to in the preceding paragraphs does not prevent the subsequent exercise of the Tax Administration's powers to audit or verify. / e) Filing corrective declarations shall not be admissible after notification of the initiation of a control procedure aimed at generating a definitive assessment (liquidación definitiva). However, the taxpayer may raise, from that moment until the conclusion of the procedure, a request for correction subject to approval by the acting bodies of the Tax Administration. The subsequent approval or denial shall be incorporated directly into the regularization proposal formulated to the audited party in definitive assessment procedures and in prior assessment procedures; the approval or denial shall be incorporated into the administrative act of ex officio assessment. / In control processes aimed at generating a prior assessment, the taxpayer may make a single correction within three business days following notification of the act initiating the proceeding. Corrections filed after three business days from the initiation of the proceeding shall have the character of a petition, so their approval or denial shall be incorporated into the administrative act of ex officio assessment” (the boldface belongs to the original text). It was decided to quote the article in full, to show that it in no way excludes the possibility of punishing the falsehood committed in the corrected declaration. Also quoted is Article 20 of resolution DGT-R-026-2011 of September 30, 2011, from the Tax Administration Directorate (Dirección General de Tributación), which provides: “Correction of Informative Declarations / Given the importance for the Tax Administration of having accurate and correct data for the efficient management of taxes, the informative declaration prepared and filed through the program [...], may be corrected by the taxpayer by filing a new declaration, in order to correct errors made in the body of the declaration, the effect of which implies an increase or decrease in the number of reported records or corrections in amounts or codes. / In these cases, any declaration that the taxpayer files after the initial one shall be considered a correction of the initial one or of the last corrected declaration, as the case may be, completely replacing the previous one. / On the other hand, corrections to these declarations, in which the taxpayer states having made informational errors in the header of the informative declaration, whether in the period (box 2), ID number (box 4), or name or corporate name (box 6), must formulate the correction in writing, indicating at least the following: / a) i. Taxpayer's name / ii. Number of the declaration to be corrected - recorded on the acknowledgment of receipt of filing the declaration on the Tax Administration's website -. / iii. The informational error to be corrected / iv. Address for notifications / v. Signature of the taxpayer or legal representative / This writing must be filed with the Compliance Control Area of the Tax Administration to which the respective obligor is assigned, and in the case of Large Taxpayers, before the assigned manager. / When it corresponds to corrections of informative declarations prepared and filed online through the electronic filing web portal – forms D-151 and D-152 as indicated in Article 12 of this resolution –, the previous one must be completely replaced, obligatorily indicating the number of the electronic declaration being corrected, a number that will be recorded on the acknowledgment of receipt of filing the declaration on the Tax Administration's website” (boldface from the original). Again, it must be said that nothing indicated in the article allows agreeing with the appellants, when they deduce the existence of a ground for excluding any of the elements of the crime. Appeal is then made to Article 92 of the same body of law, from which the appellants derive the classification of the corrective declaration as an exculpatory legal excuse. The article states: “Fraud against the Public Treasury (Hacienda Pública) / Whoever, by action or omission, defrauds the Public Treasury with the purpose of obtaining, for themselves or for a third party, a patrimonial benefit, evading the payment of taxes, amounts withheld or that should have been withheld, or payments on account of remuneration in kind, or unduly obtaining refunds or enjoying tax benefits in the same manner, provided that the amount of the defrauded quota, the unremitted amount of withholdings or payments on account, or the unduly obtained or enjoyed refunds or tax benefits exceeds five hundred base salaries, shall be punished with a prison sentence of five to ten years. / For the purposes of the provisions of the preceding paragraph, it must be understood that: / a) The amount of five hundred base salaries shall be considered an objective condition of punishability. / b) The amount shall not include interest, fines, or punitive surcharges. / c) To determine the mentioned amount, if it concerns taxes, withholdings, payments on account, or refunds that are periodic or of periodic declaration, the amount defrauded in each tax period or declaration period shall be considered, and if these are less than twelve months, the defrauded amount shall refer to the calendar year. In other cases, the amount shall be understood to refer to each of the different concepts for which a taxable event may be subject to assessment. / The fact that the person remedies their non-compliance, without any requirement or action by the Tax Administration to obtain the remedy, shall be considered an exculpatory legal excuse. / For the purposes of the preceding paragraph, action by the Administration shall be understood as any action carried out upon notification to the taxpayer, aimed at verifying compliance with tax obligations. / The Office of the Attorney General (Procuraduría General de la República) shall act as civil plaintiff in the exercise of the civil action for damages, in accordance with the provisions of the Code of Criminal Procedure (Código Procesal Penal); for this, it must have the active technical participation within the criminal process of the Tax Administration Directorate (Dirección General de Tributación), which shall act through the Directorate General or those to whom it delegates this function. For purposes of complying with the provisions of this article, all acts of the process must be notified to the Tax Administration Directorate (Dirección General de Tributación)” (the boldface is from the original). It is sufficient to read the title of the legal provision to realize that it refers to a crime totally unrelated to the one for which the defendant was convicted numerous times; this pertains to fraud against the public treasury (hacienda pública). Without greater precision, it is indicated that testimonial evidence affirms that, when the taxpayer makes a correction, the initial declaration loses all legal effects, as it is replaced by the new one and becomes non-existent. Moreover, an impossible crime is mentioned. It is probable that the appellants are referring to the testimony of attorney [Nombre7], doctor of tax law, who indicates having reviewed the matter of the defendant's companies at the administrative level and is processing a contentious proceeding in her favor. It is presumed that it is he to whom the challengers refer, as he is the person who cited article 130 of the Tax Code (Código de Normas y Procedimientos Tributarios) in his statement, and indicated: “Law 7900 [which reformed the referred code] establishes a system whereby any correction can be made before the appeal for reversal, from 2012, before the determinative procedure the correction can be made and it is a total substitution by the new one, the first disappears from the legal world and is substituted by the correction. It was developed taking as a reference point, they were the corrections, upon losing real existence, these were not used in the assessment procedure” (judgment, p. 83). The court contested the relevance of the statement, noting that it was applicable only to inaccurate self-assessments (autoliquidaciones inexactas), a qualification that those prepared in this case did not merit. In the opinion of this Court of Appeals, the issue is different. It is possible that the correction has, for tax law, the effects that witness [Nombre7] indicated; there is no reason to doubt it, even taking into account that the professional is a lawyer for the companies through which the punished crimes were committed. But the effects and implications relative to tax law are not what is of interest here. The issue in question is one of criminal law: does the correction of a self-assessment declaration—or of any other nature—have the virtue of eliminating or nullifying the falsehood contained in the original document or the use made thereof? The answer is negative. There is no legal norm that attributes that efficacy to the subsequent declaration, and it would be wrong to seek it in a law that was not designed to regulate the criminal conduct corresponding to the falsehood of documents, as is the Tax Code (Código de Normas y Procedimientos Tributarios). For the foregoing reason, the claim is dismissed.

VII.- As a thirty-third ground, erroneous non-application of Articles 22 and 75 of the Penal Code (Código Penal) is alleged, and it is added that, if the proven facts are maintained, it should be a case of ideal concurrence (concurso ideal) and not material concurrence. The judgment identifies the object of the charged conduct as a supposed unlawful patrimonial benefit and damage to the public treasury (hacienda pública). It is an action with a single aim, which is to obtain an unlawful economic benefit, through deception of the public treasury. There is a single aim, which is to defraud the Treasury (Fisco), so the difference in fiscal periods is irrelevant; the same conduct remained unchanged over time, without interruptions, from the year two thousand nine to two thousand thirteen. It quotes the ruling when it states: “However, what has been indicated up to here makes it evident that, as material actions, it is not possible to distinguish between the use of a false document and the deception aimed at obtaining a patrimonial benefit, in this case there is a single action from the natural or physical point of view…” (judgment, p. 132). In the judgment of the appellants, this makes clear the incorrect application of the rules on concurrence of offenses. If the court considered that it was a single action, it should have applied ideal concurrence (concurso ideal). They cite in favor of their thesis vote 721-2001, of the Third Chamber (Sala Tercera) of the Supreme Court of Justice (Corte Suprema de Justicia). In light of that precedent, they argue that, in the case at hand, more than one crime per fiscal period could not be considered, as the damage to the Treasury (Fisco) and the unlawful benefit would be consummated at the moment of the final income declaration of each period. Thus, as a main thesis, they request it be declared that the thirty-two punished crimes maintained a unity of action over time, affecting the fiscal assets and concurring ideally. Subsidiarily, they request that a use of a false document be sanctioned for each affected fiscal period “in ideal concurrence”; with a material concurrence among the five ideal concurrences. They argue that it is not possible to separate the conduct from the affected legal interest, so that “if the purpose of using the false document was precisely to affect the fiscal assets, such conduct could only succeed once a year,” since the tax is paid annually. This is not admissible. Regarding the issue of unity of action and concurrence of crimes, the Third Chamber (Sala Tercera) of the Supreme Court of Justice (Corte Suprema de Justicia) stated, in a precedent that has been replicated time and again, and which continues to constitute the jurisprudential line of that body on the matter, the following: “From Articles 21, 22, 23, 75, 76, and 77 of the Penal Code (Código Penal), it follows that the fundamental criterion for resolving the problem of this 'concurrence of crimes' lies in the definition of what constitutes 'one single action or omission' or 'one same conduct' (cf. Articles 21 and 23, hence the number of 'results' has nothing to do with the number of conducts and crimes). In this sense, it has been affirmed that: «The problem common to all the cited cases is determining when there is one or several actions. At the outset, the identification between action and bodily movement and identification between action and result must be excluded. One single action, in a legal sense, can contain several bodily movements (for example, intimidating violation [rape], robbery with breaking) or give rise to several results (detonating a bomb causing the death of several people). There are, then, other factors that contribute to fixing the concept of unity of action. The first of these is the final factor, that is, the will that governs and gives meaning to a plurality of isolated physical acts (in murder, the will to kill unifies and gives meaning to a series of acts, such as buying and loading the gun, stalking the victim, aiming, or shooting; or, in theft, the will to appropriate the thing unifies and gives meaning to the various acts of searching the pockets of a coat). The second factor is the normative one, that is, the structure of the criminal type in each particular case. Thus, although the final factor governing a causal process is the same (killing someone), some of the particular acts carried out may, in isolation, have relevance for different criminal types (as, for example, the illicit possession of firearms for the crime of illicit possession of weapons). And, conversely, isolated acts, each governed by a different final factor, may have typical relevance only when they occur jointly (the falsification of private documents is only typical if carried out with intent to harm or harming a third party) or have a different typical relevance (for example, robbery with homicide). When a single action, determined with the criteria indicated here, fulfills a single criminal type, we have the normal case. When a single action or several actions fulfill several criminal types, concourse problems arise» (MUÑOZ CONDE, Francisco: General Theory of Crime, Valencia, Tirant lo Blanch, 1991, p. 194). Our doctrine indicates that the unity of action is a legal concept, that just as it is erroneous to try to define the unity of action regardless of the norm, it would also be mistaken to try to define the unity of action regardless of the fact, without giving it the subordinate place it deserves as the content of the norm: '...it is not the natural unity of action that determines when there is an action in the legal sense; it may rather happen that an action in the natural sense legally constitutes a plurality of actions or that a plurality of actions in the natural sense legally constitutes a single action. The distinction between unity of action and plurality of actions is only possible through an interpretation of the meaning of the fulfilled criminal type' ([Nombre11]: El Concurso..., pp. 19 to 20). The adoption of the final factor (unitary plan that gives meaning to a plurality of voluntary movements as a single conduct) and the normative factor (which converts the conduct into a unit of disvalue for the purposes of the prohibition) as criteria for elucidating when there is one and when there are several conducts (whether actions or omissions) is widely accepted by current doctrine (thus, ZAFFARONI, Op. cit., pp. 619 to 620; VELASQUEZ, Op. cit., pp. 584 to 588; [Nombre22], Santiago: Criminal Law General Part, Barcelona, Promociones y Publicaciones Universitarias S.A., 1990, pp. 720 to 724; [Nombre23], Enrique: Principios..., p. 280) and, insofar as it rationally substantiates the application of substantive law based on the axiom that the essence of the crime is the injury to a protected legal interest, it is adopted by the undersigned (Third Chamber [Sala III], v. 943-98, of 4:16 p.m. on September 29, 1998). Along the lines formulated in that resolution, the criterion of the courts of our country is practically unanimous that, for purposes of establishing the existence of a unity of action, it is as important to determine the purpose that motivated the author's conduct as the implications deriving from the structure of the criminal type involved. In the judgment of this Chamber, the challengers commit an error by ignoring these considerations in their argument. In the first place, the analysis of the final factor is mistaken. The purpose, for these effects, cannot be unrelated to the punished crime; in this case, the use of a false document. Having established the existence of the crime, it must be clear that the aim of the defendant was to affect public faith (fe pública) by using false documents. The appellants, however, refer to other purposes related to a crime of fraud against the public treasury (hacienda pública) that was not even charged and to an obtaining of a patrimonial benefit that is not related to the core of the reproach made against the defendant. For these purposes, the purpose of defrauding the Treasury (Fisco) is as irrelevant as the objective that the defendant intended to satisfy with the money obtained; in both cases, they are legally inconsequential purposes, due to their purely subjective nature. They are personal objectives unrelated to the analysis of the action from a legal point of view, the only one that can be of interest to establish how the crimes committed concur. The second error is in disregarding the normative factor. Article 372 of the Penal Code (Código Penal) provides that 'Whoever uses a false or altered document shall be punished with one to six years of imprisonment.' This legal provision describes a conduct that is consummated by using the document; when this is carried out, the action concludes, and cannot constitute a unity with a subsequent event. The mere purpose of the agent does not have the virtue of giving unity to a series of factually unconnected events. The vote of the Third Chamber (Sala Tercera) of the Supreme Court of Justice (Corte Suprema de Justicia) cited by the appellants does not concern the matter under examination, but refers to the indicators that allow distinguishing a continued crime from a material concurrence of criminal conducts. However, a fragment of it touches upon a matter of mere legal rationality, and therefore allows reinforcing what this court holds here. The Chamber states: 'What is the criterion that allows differentiating between a continued crime and a material concurrence of crimes? This Chamber considers that it must consist in that the purpose pursued by the author, in relation to the legal interests being affected by their actions, is incompatible with the nature of material concurrence. Otherwise, one would reach the absurdity that the habitual perpetrator of robberies, for example, would have the opportunity to unite with their "purpose" (the determined habituality in robbery) events that otherwise have no relationship to each other, to which the penalty for real or material concurrence of crimes corresponds and not that of a single continued crime: it would be absurd because it would unjustly favor the person who shows the greatest factual contempt for property legal interests, given their habituality or recidivism, considering that the figure of the continued crime is a sui generis exception to the rules of material concurrence, so much so that the law provides that it is only applicable if property legal interests are affected. Hence, the doctrine indicates that the application of the continued crime is subject to subjective and objective criteria. In this sense, [Nombre8] indicates that: «Initially, one starts from a subjective criterion: the unity of designs of the author (the bank teller who, determined to amass a specific amount of money, procures it by extracting smaller sums from the cash box on different occasions). But, if we were to conform ourselves to that criterion to determine dependence, we would grant the author the unfair opportunity to unite with their design the most disparate events, deserving the penalty of concurrence, and not that of a single crime, which is why we must complete it with objective criteria [...]» [Criminal Law General Part, Editorial Astrea, Buenos Aires, 1988, pp. 241 to 242]' (Third Chamber [Sala III], v. 721-01, of 9:20 a.m. on July 20, 2001). Reiterating that the central theme addressed by the Chamber in that resolution is very different from the one at hand here, the fact that the appellants bring it up nevertheless serves to reaffirm the following: it is not prudent to make the determination of whether the perpetrator incurred one or several actions dependent solely on their will. The issue is of a legal nature, and the content of the infringed norm cannot be ignored (normative factor). The appellants make a quote from the lower court's (a quo) ruling, which seems to this Chamber to be taken out of context. To understand what the trial court (tribunal de mérito) expressed, it is necessary to broaden the transcription. The court said: 'The actions concur materially, in total false data were inserted into thirty-two documents, which determines the falsehood of the same, of which the defendant [Nombre1] had full knowledge, properly of the false content, as they corresponded to an artful machination to distort reality in order to benefit the companies and harm the Public Treasury (Hacienda Pública), that is, deceptive acts were carried out motivated by the intent of unjust enrichment, with which the tax supervisory bodies were induced to error and caused damage to the Public Treasury (Hacienda Pública), because finally, although a tax determination or fixing has not been carried out, the truth is that less tax was declared, which arises as a logical and unavoidable consequence, since the actions led to a decrease in gross income and the consequent decrease in the tax burden. This generated effect is, in turn, a direct consequence of the error into which the recipient of the operations was induced, that is the institution legally responsible for the control, verification, and auditing of tax obligations, making it believe that payments for professional services had been made to Mrs. [Nombre5].' It is true that the crime of "Fraud Against the Public Treasury," provided for in Article 92 of the Code of Tax Norms and Procedures, which is a Tax Fraud, a special-nature criminal offense, was not charged, and this was ruled out in the preparatory investigation conducted by the Public Prosecutor's Office, because this criminal offense establishes among its objective elements that the amount of the defrauded quota must exceed five hundred base salaries. However, what has been indicated up to this point reveals that, as material actions, it is not possible to distinguish between the use of a false document and the deceit aimed at obtaining a financial benefit; in this case, there is a single action from a natural or physical point of view" (judgment, pp. 131 and 132, our emphasis). At least two conclusions can be drawn from what the court stated in that excerpt: i) that it understands there were thirty-two distinct criminal actions constituting uses of false documents; ii) that, in its opinion, the use of a false document (each one of them) and the deceit of the tax authorities with financial consequences constitute a single action from a natural or physical point of view. It almost goes without saying, because it is widely accepted, that doctrine has evolved to detach itself from merely natural or physical considerations when establishing the unity of action. Furthermore, even if one were to start from the premise that the trial court considered an ideal concurrence between conducts —which, in this chamber's opinion, is not the case— it would be, at most, between each falsehood and each verified fraud against the public treasury, a position that is otherwise absurd, considering that, as already stated, the defendant was not convicted of any fraud. The trial court was far from giving rise to the challengers' interpretation that the interest to defraud maintained by the accused during the five years examined constitutes a unity and therefore they concur ideally, or that the falsehoods committed each year should be considered as a unit. Nor is it the harm caused to the tax authorities at the end of each tax period that defines the term of each action, as suggested; the criminal offense applied to the accused punishes the use of the document, regardless of when the harm materializes, at the end of the entire criminal scheme. If several documents were falsified along the way to achieve the unlawful objective, the law stipulates that each conduct must be sanctioned independently. For the foregoing reasons, the challenge is dismissed.

VIII.- As a thirty-fourth claim, the unlawful evidentiary inclusion of a telephone recording is alleged. The challengers argue that the inclusion of the recording made by Ms. [Name5] violated the rights to privacy, freedom, secrecy of communications, and legality with respect to their client, since the provisions of Law on the Registration, Seizure and Examination of Private Documents and Intervention of Communications, number 7425, were not complied with. Ms. [Name5] did not ask the accused for authorization to record the conversation, which invalidates the evidence. The Public Prosecutor's Office introduced the evidence, alleging that the accused had coerced Ms. [Name5], but it was demonstrated that no crime was committed through said recording. There is a contradiction in the court, for asserting that the recording occurred due to the "alleged commission of a crime," when the accused was acquitted of the crime of coercion. Article 29 of Law 7425 only permits recording upon the commission of a crime, not upon the alleged commission. The exception in the norm refers to crimes committed in the course of the communication that are regulated by Law 7425, that is, those that allow intervention of communications. In the first ground of her challenge, the accused [Name1] also complains of a lack of reasoning in the conviction judgment regarding the telephone call recording. She relies on Articles 142 and 363, subsection b) of the Code of Criminal Procedure; 39 of the Political Constitution; 8 of the American Convention on Human Rights, and jurisprudence of the Inter-American Court of Human Rights. She states that, during the trial, the defense objected to the recording of the call made on July 3, 2014, which, in her view, was not authorized by the Law on the Registration, Seizure and Examination of Private Documents and Intervention of Communications (number 7425). On the contrary, recording a telephone call is prohibited by Article 198 of the Penal Code. A private conversation cannot be secretly recorded, as [Name5] did. Since the recording of the call is illegal, it could not be used as evidence. Article 24 of the Political Constitution establishes the principle of inviolability of private communications, which has as an exception only what is provided in Article 29 of Law 7425. That exception occurs when a crime is being committed. The appellant considers that what determines the legality of the recording is not a posteriori analysis of its content, but rather whether, before it, one was legitimized to record due to the commission of a crime. Thus, she considers that the judgment lacks reasoning in resolving the legality of the recording made by [Name5]. To justify its decision, the court invokes the principle of freedom of evidence, when this presupposes that the evidence be legal, which is not the case with a recording that contravenes Article 198 of the Penal Code and is not within the exception of Article 29 of the Law on the Registration, Seizure and Examination of Private Documents and Intervention of Communications. Article 28 of the Political Constitution is also resorted to, a norm of an indeterminate nature that does not justify recording a telephone conversation and has no relation to authorizing conversations without consent. The constitutional article related to oral communications is 29, which establishes their inviolability as a principle, except for legal exception, such as that contemplated in Article 29 of Law 7425. The judgment states that Ms. [Name5] had previously received insulting calls. But when she decided to record, she knew she was speaking with the accused and not with the people who called to insult her, and she did not justify the recording by virtue of the insulting calls. The judgment states that the accused requested Ms. [Name5] to recant what she told the journalist [Name24]. However, that was not the reason Ms. [Name5] decided to record the conversation; before the recording, she had not been told she had to recant, so the justification was not prior to the recording; additionally, such a request does not imply the commission of a crime. It is argued that there was a complaint filed with the prosecutor's office and that the case had been reopened, but this did not authorize, in accordance with Article 29 of the Law on the Registration, Seizure and Examination of Private Documents and Intervention of Communications, the recording of the conversation. The court argues that, based on what was said in the conversation, the accused was charged with the crime of coercion. This incurs the error of making the legality of the recording dependent on the Public Prosecutor's Office's decision to charge. Moreover, what determines the legality of the recording is whether, before it was made, one was legitimized to record, not the result of an a posteriori analysis. Likewise, it fails to consider that, for that crime, the defendant was acquitted. Given the acquittal based on doubt, applying an interpretation favorable to the accused, coercion could not be considered to justify the recording. From [Name5]'s statement, it cannot be deduced that, before the call, she had received any type of coercion. Based on the first call the accused had with Ms. [Name5], the recording of the second call could not be justified. It must be taken into account that the accused denied, during the trial, having committed intentional conduct, and the court deduced that intent from the recording. As the lower court itself acknowledged, the registration of the communication played an essential role in issuing the conviction. Therefore, she requests that the ground be granted and the judgment be annulled in its entirety, including what refers to the civil action and costs; that, for procedural economy, the recording of July 3, 2014, be annulled and acquittal ordered, along with declaration that the civil action for damages is dismissed; likewise, that costs be assessed against the State; alternatively, that the case be remanded for a new trial. Due to their thematic unity, the grounds referenced in this considering clause will be addressed jointly, and they are granted, with the consequences that will be stated. As the appellants rightly point out, Article 24 of the Political Constitution of the Republic of Costa Rica states: "The right to privacy, freedom, and secrecy of communications is guaranteed. Private documents and written, oral, or any other type of communications of the inhabitants of the Republic are inviolable. However, a law, whose approval and amendment shall require the votes of two-thirds of the Deputies of the Legislative Assembly, shall determine in which cases the Courts of Justice may order the seizure, registration, or examination of private documents, when absolutely essential to clarify matters submitted to their jurisdiction. / Likewise, the law shall determine in which cases the Courts of Justice may order the intervention of any type of communication and shall indicate the crimes in whose investigation the use of this exceptional power may be authorized and for how long. It shall also indicate the responsibilities and sanctions incurred by officials who illegally apply this exception. Judicial rulings protected under this norm must be reasoned and may be executed immediately. Their application and control shall be the non-delegable responsibility of the judicial authority. / The law shall establish the cases in which competent officials of the Ministry of Finance and the Comptroller General of the Republic may review accounting books and their annexes for tax purposes and to oversee the correct use of public funds. / A special law, approved by two-thirds of the total number of Deputies, shall determine which other Public Administration bodies may review the documents that said law specifies in relation to the fulfillment of their regulatory and oversight functions to achieve public purposes. It shall also indicate in which cases such review is appropriate. / Correspondence that has been removed and information obtained as a result of the illegal intervention of any communication shall not produce legal effects." On its part, Article 29 of the Law on the Registration, Seizure and Examination of Private Documents and Intervention of Communications, number 7425 of August 9, 1994, states: "There shall be no illegitimate intrusion when the holder of the right grants their express consent. If there are several holders, the express consent of all must be obtained. This consent shall be revocable at any time. / When the person participating in an oral, written, or other type of communication, through which a crime typified by law is committed, records or preserves it, this may be presented by the offended person before the judicial or police authorities for the corresponding investigation. / If the communications indicated in the preceding paragraph have served the jurisdictional authorities to initiate a criminal proceeding, the recordings of such communications or the texts that transcribe them may be presented as evidence before the judge, in the corresponding trial." From the content of both legal provisions, it must be concluded, for the purposes relevant here, that the recording of a conversation is only legitimate when a crime is committed through it, in which case the offended person may present it before the authorities. It is worth clarifying that it may be any crime and not necessarily one of those for which the intervention of communications is permitted in Law 7425, as the defense appellants suggest (see in this sense, from Chamber III, ruling 48-01, at 11:00 a.m. on January 12, 2001). The fact is that, if the hypothesis of the existence of a crime is not met, the recording of the conversation has no legal protection and, consequently, could not be used in a criminal proceeding, by virtue of the limitation imposed by Articles 181 and 182 of the Code of Criminal Procedure on the use of illegal evidence. Indeed, one could even incur the conduct contemplated in Article 198 of the Penal Code, which states: "Whoever records words of another or others not intended for the public without their consent, or who, using technical procedures, listens to private manifestations not directed at them, shall be punished with imprisonment from one to three years, except as provided in the Law on the registration, seizure and examination of private documents and intervention of communications. The same penalty shall be imposed on whoever installs apparatuses, instruments, or parts thereof, for the purpose of intercepting or impeding oral or written communications, whether or not they achieve their purpose." In the case under examination, the recording of the conversation held by the accused with Ms. [Name5] on July 3, 2014, starting at 3:45 p.m., which was recorded by the latter without the former's consent, is openly illegal, since a crime was not being committed through it, as required by the norm just transcribed. In this chamber's opinion, the arguments resorted to by the trial court to justify its validity are not acceptable. It is said that the inclusion of the recording finds protection in the freedom of evidence. However, the procedural law states in this regard: "Elements of evidence shall only have value if they have been obtained by a lawful means and incorporated into the proceeding in accordance with the provisions of this Code" (Article 181 of the procedural code); likewise: "The facts and circumstances of interest for the correct solution of the case may be proven by any permitted means of evidence, except for express prohibition by law" (Article 182 ibid.). Thus, the freedom of evidence finds an insurmountable limit in the legality of the obtaining and incorporation of the means of evidence. In this particular case, as indicated, the legality of obtaining the recording depends on the commission of a crime through the communication, a requirement absent here. The court also asserts that Ms. [Name5] had previously been called to insult her, without explaining why this would allow bypassing the requirement imposed by law that a crime be committed through the specific call being recorded. It is also said that, at the time of the call, a complaint had been filed with the prosecutor's office, which even led to an accusation of the alleged commission of a crime. However, a simple reading of Article 29 of the Law on the Registration, Seizure and Examination of Private Documents and Intervention of Communications reveals that the requirement for the recording's validity is not the filing of a complaint nor the alleged commission of a crime, but its effective commission during the communicative exchange; the former is ruled out due to its notorious incompatibility with the letter of the norm, and the latter, due to the dangerous indeterminacy that speaking of the crime in terms of presumption would entail: alleged by whom? By the one recording the communication? By the prosecutor? Assessed at what moment? Before the call or ex post? In some way, the accused, in her appeal, also introduces some degree of subjectivity in the analysis of the article by asserting that the determination of the crime's existence must be established by the receiver before receiving it. This is also not derived from the letter of the legal provision. The legitimacy of the recording does not depend on the good judgment shown by the person participating in the conversation when assessing the unlawfulness; even less so on the accuracy of their speculation about the eventual content of the call they are just receiving; nor on their good intention. Theoretically, nothing excludes an interlocutor acting in bad faith from recording a conversation in which the other party commits a crime; under such conditions, the initial intention does not inhibit the recording's validity. What matters, purely and simply, according to the legal text, is that a crime be committed through the communication. The truth of the matter is that here the crime did not exist, since in the very judgment being appealed, the accused was acquitted of the coercion that had been attributed to her as committed through the call. Thus, if the evidence is illegitimate, it could not be used in trial. Where one must not agree with the appellants is in the essential character attributed to the recording as part of the evidentiary element; in this, one even disagrees with the opinion of the trial court itself. The fact is that the fundamental statements made by the accused in the recorded conversation were presented by Ms. [Name5] in her testimony at trial. Moreover, the rest of the evidentiary material analyzed by the lower court was added to this. The way in which the evidence involved the accused [Name1], without needing to resort to the recording, was already set forth by this chamber in considering clause V, to which reference is made to avoid unnecessary repetitions. Dispensing with that element of evidence does not change the conclusion regarding the accused's responsibility, either criminal or civil. Consequently, what must be ordered is, solely, the ineffectiveness of the recording made by [Name5] of the conversation she held with the accused [Name1] on July 3, 2014. In these terms, the grounds assessed here are granted.

IX.- As a thirty-fifth ground, a lack of reasoning for the imposition of the sentence is alleged. The court provided a merely moralistic reasoning, contrary to the principles of proportionality, rationality, humanity, and resocialization of the penalty. The lower court is contradictory when it takes into account the accused's public service to impose the sanction but rejects the social harm, alleging that she committed the criminal acts as a private citizen and not as a public official. The court did not consider the personal aspects of the accused, who is seventy years old and has cooperated with the proceeding. Furthermore, she has no pending cases. In the sixth claim of the appeal filed by the accused, a lack of reasoning for the imposed penalty is invoked, under Articles 142 and 363, subsection b) of the Code of Criminal Procedure, 71 of the Penal Code, and 39 of the Political Constitution. The judgment indicates that the parameters for setting the penalty for each crime are the same, and therefore it provides a global reasoning. But then the thirty-two crimes are used to justify the penalty for each one of them, instead of doing so independently, as corresponds in a material concurrence. Each act becomes an aggravating factor for the other thirty-one, which results in a disproportionate penalty of three years for each, ninety-six for the thirty-two, and nine, by application of the concurrence rules. She considers that the arguments made in the second, third, fourth, and fifth grounds of her appeal must be taken into account, which, in her view, mean that a series of acts for which a conviction was issued and which served as a basis for imposing a penalty of three years per crime must be annulled, which would have an impact on the amount of the sanction. Also, the harm to the tax authorities is considered globally, instead of assessing each harm independently. Thus, the harm caused by each one is not only used to set its penalty but also that of the others. Although it does not say so expressly, the judgment uses report 233-DEF-A-425-16 from the Judicial Investigation Agency, but it does not analyze it; rather, it makes a global reference. It does not even consider that the report includes taxes corresponding to the years 2004 to 2008, for which a definitive dismissal was ordered. Regarding the declarations of the company Inversiones Adrofer Sociedad Anónima in 2010, she was convicted for acts 7, 9, and 10 to a penalty of three years of imprisonment for each, based on the amount of fraud against the tax authorities. But according to the report, only one hundred thousand colones were left unpaid in 2010 for said company. She was convicted on act 16 for a 2011 declaration, but the report does not set an amount left unpaid. She was also convicted on act 17 for the 2011 declaration of the company Consultoría ORS y Asociados Sociedad Anónima, but the report does not indicate that taxes were left unpaid by it. Regarding the 2010 declarations of Inversiones Beyof Sociedad Anónima, she is convicted on act 12, but the report states that no tax payment would correspond in that year. Even the amounts that would have been left unpaid, of three million two hundred ninety-seven thousand nine hundred ninety-nine colones and thirty cents, is not high, considering that it corresponds to the years 2009 to 2013, taking into account the number of acts and the minimum amount for the crime of tax fraud under Article 92 of the Code of Tax Norms and Procedures, which is five hundred base salaries; many times the amount that could have been left unpaid in this matter. The judgment acknowledges that the act judged is not a crime of tax fraud, but it gives importance to tax fraud, without considering the established parameters regarding the amount required for the existence of a crime of that type. The harm to the tax authorities is not even the subject of this proceeding, since it corresponds to an administrative sanction. The judgment did not consider the payments made to compensate for the unpaid taxes as a positive aspect. Rather, the rectifications were assessed to justify a greater penalty, stating that a maneuver was intended to avoid responsibility. But this has no basis because, even if the tax amounts are corrected, the taxes must be paid according to the corrective declaration, without eliminating the documentation of the original declaration, which remains in the database. Nor is it considered that the thirty-two convictions were for uses of private documents and not public ones, which implies a lesser degree of unlawfulness, according to the Penal Code. The illegitimacy of the recording used by [Name5] prevents taking it into account for setting the penalty. Regarding the recording, assessments related to morality are made. The court considered the accused's request to [Name5] to go and unregister before the Directorate General of Direct Taxation; however, that does not imply any crime. The consideration of the accused's academic background and condition must be related to the amounts she would have left unpaid. The court states that it takes into account the accused's conditions, such as her age, that she has a spouse and children who depend on her financially, and that she has no pending cases. However, it does not state how they are taken into account. The deprivation of liberty of a seventy-year-old person is especially serious, taking into account her physical limitations. The accused has serious ailments: both hip replacements and breast cancer. She has already suffered severe consequences from the acts, such as having to resign from the Ombudsman's Office. Therefore, she requests that the ground be granted and the penalty for all crimes be annulled, ordering a remand for a new trial. The thematic unity of both objections allows them to be resolved jointly, and they must be granted. In this appellate chamber's opinion, the trial court incurs an incorrect application of substantive law when setting the sanction. This is related to the rules established in the Penal Code for the punishment of material concurrence. In this regard, that legal body states: "For material concurrence, the penalties corresponding to all crimes committed shall be applied, not exceeding triple the highest penalty and in no case fifty years of imprisonment. The Judge may apply the penalty that corresponds to each punishable act, provided this is more favorable to the defendant" (Article 76 of the Penal Code). As can be seen, when a material concurrence is verified, the punishment for each punishable act must be established independently of the others, which is extremely important due to the limit imposed by law of not exceeding triple the most severe punishment. In this case, throughout the reasoning for the penalty, it is observed that the court considered, as a determining factor, the plurality of conducts committed to punish each of the crimes. In this way, the assessment of each act was increased by the consideration of the others, and as a result, the individual punishment turned out to be inflated. This is observed when the lower court points out: "Thus, it is held that, in this particular case, the convicted person here, [Name1], committed not one, nor just a few, but a large number of serious unlawful acts –ninety-six uses of false documents in total– and over a long period of five years –from 2009 to 2014– (not in one day, nor during a month, nor several months, or even during a year), in her unbridled ambition to increase the assets of her three companies, and therefore her own, without caring about the interests, the assets of the Tax Authorities, the State, and finally the people; that was the motive that determined her to commit the unlawful actions" (judgment, pp. 216 and 217). Subsequently, it reiterates the argument, adding: "The injury to the protected legal interest, in this case, the public faith, is extremely serious, as it was violated on ninety-six occasions, in concrete form, as it did not remain in ninety-six attempts, but there were ninety-six results, such as evading the tax authorities that many times, understand the collection of State taxes, and for an amount of millions which, although it could not be determined exactly, an estimate was made by the judicial experts as stated in the respective report already referred to, and it was indeed several million colones, not hundreds, nor thousands" (p. 218). It is worth noting that the number of acts considered there was subject to rectification by the trial court, through a clarificatory ruling issued at 8:00 a.m. on September 12, 2019, in which it was indicated, as deduced from the rest of the ruling, that the conviction was for thirty-two crimes of use of a false document and not ninety-six. In any case, what is clear is that the importance of each act was weighed by adding to it the weight of the entirety, thereby failing to apply the provision of Article 76 of the Penal Code, thus affecting the sanction for each of the thirty-two crimes judged. For the above, it is necessary to grant the grounds, annulling the penalty imposed for all the acts judged, and the matter must return to the lower court so that, with a new composition, it can rule on the issue in accordance with the law.

X.- As a thirty-sixth ground, a lack of standing for the Attorney General's Office is invoked, as it did not have the authority to file the civil action for damages, according to the principle of legality and Article 16 of the Code of Criminal Procedure. This is not one of the crimes that allow its participation, since a use of a false document was charged. The Attorney General's Office intends to collect tax charges that were paid to the Tax Administration within an administrative proceeding. Furthermore, there is no real damage caused by a criminal action; the Attorney General's Office alleged material damage and social damage; the material damage is the uncollected tax charges, which have already been paid. The criminal proceeding is not the avenue for collecting uncollected taxes. Social damage is alleged without justification. There is no impact on a collective interest. The claim is dismissed. The lack of standing of the Attorney General's Office, in the civil sphere, is asserted because the crimes for which the accused [Name1] was convicted are not found within the assumptions of Article 16 of the Code of Criminal Procedure. The error in the argumentation becomes apparent starting from the title of the legal provision, which clearly indicates that it does not refer to civil action. The provision in question states: "Criminal Action / The criminal action shall be public or private. When it is public, its exercise shall correspond to the Public Prosecutor's Office, without prejudice to the participation that this Code grants to the victim or to citizens. In crimes against the security of the Nation, public tranquility, the public powers, constitutional order, the environment, the maritime-terrestrial zone, the public treasury, the duties of public office, tax offenses, and those contained in the Customs Law, No. 7557, of October 20, 1995; the Organic Law of the Central Bank of Costa Rica, No. 7558, of November 3, 1995, and the Law against the Illicit Enrichment of Public Servants, No. `6872, of June 17, 1983, the Attorney General's Office may also exercise that action directly, without being subordinate to the actions and decisions of the Public Prosecutor's Office." In matters initiated by action of the Attorney General's Office (Procuraduría), it shall be considered a party and may exercise the same remedies that this Code grants to the Public Prosecutor's Office (Ministerio Público).” Thus, since the article refers to criminal action, it could hardly be invoked to determine the legitimacy of the Attorney General's Office (Procuraduría General de la República) to exercise a civil action. It is Article 3 of the Organic Law of the Attorney General's Office (Ley Orgánica de la Procuraduría General de la República) that states that “The attributions of the Attorney General's Office (Procuraduría General de la República) are: / a) To exercise the representation of the State in matters of any nature, which are processed or must be processed in the courts of justice […]”. Therefore, if in this case the State considered itself aggrieved by the accused acts, it had the possibility of exercising the civil action (article 37 of the Code of Criminal Procedure), which it had to do, as indicated, through the Attorney General's Office. Likewise, that body has the attribution “ […] d) To intervene in criminal cases, in accordance with what is provided for this purpose by this law and the Code of Criminal Procedure […]”, which in relation to the civil action for social harm, refers us to section 38 of the procedural code which states: “Civil action for social harm / The civil action may be exercised by the Attorney General's Office (Procuraduría General de la República), when dealing with punishable acts that affect collective or diffuse interests.” Thus, no problem is perceived regarding the active legal standing (legitimación activa) of that state body. It is also affirmed that the Attorney General's Office seeks to collect charges already paid. If that were the case, the appellants not only should have raised it as an allegation, but also, provided the evidentiary basis, since, being a matter of a civil nature, section 41 of the Code of Civil Procedure governs insofar as it provides: “41.1 Burden of proof. The burden of proof falls: […] 2. On whoever opposes a claim, regarding the facts that prevent, modify, or extinguish the plaintiff's right […]”. Thus, if an extinguishing fact of the obligation is alleged, such as payment, the proof should have been provided, which the appellants do not do. In any case, as long as the civil judgment was ordered in the abstract, nothing would prevent the respective exception from being asserted in the civil venue, if it reaches those instances. It is also alleged that there is a lack of justification for the social harm, when there was no harm to a collective good. On that point, the rejection of the challenge is required due to lack of grievance (article 439 of the Code of Criminal Procedure), since the appealed judgment declared the social harm claim without merit. It is anticipated, however, that the issue will be the subject of a ruling later, by virtue of arguments different from those put forth here by the appellants (see recital XIV). For all of the foregoing, the reproach is without merit.

XI.- APPEAL OF THE ACCUSED [Name1] . As noted in previous recitals, the accused also appealed the judgment rendered in this proceeding. The first, third, and sixth grounds of her appeal have already been addressed previously, when resolving the allegations of her defense counsel, for reasons of thematic connection. The claims that have not been the subject of a ruling are those set forth below. As a second reproach, a lack of legal reasoning and reasoning for the sentence is alleged, in the judgment, with respect to the convictions for use of a false document related to the sworn statements (declaraciones juradas) D-101 and the informative statements (declaraciones informativas) D-151. The appellant considers articles 142 and 363 paragraph b) of the Code of Criminal Procedure; 71 and 372 of the Penal Code; 39 of the Political Constitution; 8 of the American Declaration on Human Rights and the jurisprudence of the Inter-American Court of Human Rights to be breached. She points out that the judgment lacks reasoning, because in the only reference it makes in this regard it classifies the acts attributed to the accused as use of a false public document, which it does without providing any justification. She maintains that this is important because the crime of use of a private document is only possible when dealing with a material falsehood, not one of an ideological nature. She relates that, with respect to the D-101 and D-151 statements of the companies Edificio Adrofer Sociedad Anónima, Consultores ORS y Asociados Sociedad Anónima and Inversiones Beyof Sociedad Anónima, there was no conviction for material falsehood, but rather ideological, since it was affirmed that what was stated in them was not true, particularly regarding the payments made to [Name5] . The claim specifically refers to the following facts and statements: 1) D-151 number [Identification1], 2) D-151 number [Identification2], 4) D-101 number [Identification3], 5) D-101 number [Identification4], 7) D-151 number [Identification5], 8) D-151 number 15113003880516, 10) D-101 number [Identification6], 11) D-101 number [Identification7], 12) D-101 number [Identification8], 14) D-101 number [Identification9], 16) D-101 number [Identification10], 17) D-101 number CED12, 18) D-151 number CED13, 21) D-101 number CED14, 22) D-101 number CED15, 24) D-151 number CED16, 27) D-101 number CED17, 29) D-151 number CED18 and 30) D-151 number CED19. In none of these statements is there a conviction for material falsehood, but rather ideological, since it is affirmed that what is stated in them is not true, particularly regarding the payments made to [Name5] . This is relevant, since the use of a private document is not punishable when the falsehood is of an ideological nature. In a single reference, at folio 123 of the judgment, it is affirmed that these were uses of a public document, without any analysis or justification. The consideration that these were uses of a public document and not a private one has no legal basis, since the documents were not issued by a public official or by a notary public. The Code of Civil Procedure in force at the time of the acts, in its article 369, defined what public documents and instruments were, a definition maintained in the new legal code on the matter, in article 42.2. There is a consensus that, by exclusion, those documents are deemed private that are not classified by law as public. That idea is reflected in article 45.3 of the new Code of Civil Procedure. Hence, the D-101 and D-151 statements must be considered private documents. The use of a false document must be understood in relation to the crimes contemplated between sections 366 and 371 of the Penal Code, which is important insofar as regarding private documents, the punishable falsehood can only be material. This also has importance with respect to the following facts and statements: 3) D-151 number [Identification19], 6) D-101 number [Identification20], 9) D-151 number [Identification21], 13) D-101 number [Identification35], 15) D-101 number [Identification22], 19) D-151 number [Identification23], 20) D-151 number [Identification24], 23) D-101 number [Identification25], 25) D-151 number [Identification26], 26) D-151 number [Identification27], 28) D-101 number [Identification28], 31) D-151 number [Identification29] and 32) D-151 number [Identification30]. In these cases, the conviction was justified by a material falsehood, by falsifying the signature of [Name5] . For each of these acts, a sentence of three years' imprisonment was imposed, but the consideration of the severity was weighed based on the public or private nature of the document. The use of a false private document is less serious than that of a public one, adhering to the different valuation given to them by the Penal Code. This would also be related to the penalty regarding the first acts analyzed. Therefore, she requests that the ground be declared with merit; that the conviction for acts 1, 2, 4, 5, 7, 8, 10, 11, 12, 14, 16, 17, 18, 21, 22, 24, 27, 29 and 30 be annulled; that, for procedural economy, the accused be acquitted of those acts and, subsidiarily, that the conviction be annulled and a remand be ordered. She also requests that the sentence imposed be annulled with respect to all the crimes for which the conviction must be maintained, including numbers 3, 6, 9, 13, 15, 19, 20, 23, 25, 26, 28, 31 and 32 and that, consequently, a remand for sentencing be ordered. Without merit. Certainly, we must agree with the appellant when she indicates that the conviction entered against her was for the use of thirty-two false private documents, not public ones. She falsified two types of documents: the Annual declaration of clients, suppliers and specific expenses (form D 151) and the Sworn income tax return (form D 101). Both are self-assessment returns, that is, designed to be completed by the declarant themselves, so they cannot hold the status of public documents that those prepared by public officials, with legal formalities and within the limits of their attributions, are today, and were at the time the falsehoods were committed. The only quote in the ruling that speaks of public documents reads as follows: “Nor was it possible to establish the criminal liability of the accused in seven of the thirty-nine crimes of Use of a Public Document attributed to her in the accusation” (judgment, p. 123). The issue was not developed, since it was evidently not intended to argue in favor of the nature of the falsified documents; that was not the context of the statement. Therefore, it is reasonable to think that the reference was a simple oversight by the adjudicating body. Now then, from that private nature of the documents, it is intended to deduce the atypicality of the conduct consisting of preparing all those statements in which the falsehood was not of a material nature, with the argument that, when it comes to private documents, ideological falsehood is not typical. As a corollary, it is also intended to deduce the atypicality of the use of such documents. In the judgment of this chamber, the interpretation is incorrect. Article 368 of the Penal Code states: “Imprisonment of six months to two years shall be imposed on whoever makes, in whole or in part, a false private document or adulterates a genuine one, in such a way that harm may result” (article 368 of the Penal Code). From that wording, it can be deduced that the crime of falsification of private documents can refer to both the material and intellectual aspects of the document, as the verb “make” can encompass both things. Something similar occurs with the crime of falsification of public and authentic documents in section 366 of the same code, a rule that states: “Whoever makes, in whole or in part, a false, public or authentic document, or alters a genuine one, in such a way that harm may result, shall be punished with imprisonment of one to six years. / If the act is committed by a public official in the exercise of their functions, the penalty shall be two to eight years.” The similarity between both provisions leads one to question the necessity of the criminal type of ideological falsehood in article 367 of the Penal Code. If section 366 already contemplates the falsehood of the intellectual content of the document, is section 367 redundant? The answer provided by case law is negative. The clarification made in the cited article 367, which states: “The penalties provided for in the previous article are applicable to whoever inserts or causes to be inserted in a public or authentic document false declarations, concerning a fact that the document must prove, in such a way that harm may result,” is due to the particular nature of the public documents it regulates, and the fact that these must be prepared by officials, to attest to certain events. To that extent, one can verify in them the typical “making” (by the official or another person), or the “causing to insert” (exclusive action of a third party); behaviors that, being diverse, justify a separate regulation. That necessity does not arise in private documents, which are only prepared by private individuals, to produce effects among themselves or towards third parties, in certain hypotheses —without prejudice to the concurrence of the assumptions of co-authorship or complicity when others participate—. That is why, in the case of private documents, there is no specific article that contemplates the falsehood of their ideological aspects, without this implying that it is not included in the criminal type. This criterion has been upheld by the Third Chamber of the Supreme Court of Justice (Sala Tercera de la Corte Suprema de Justicia), when indicating: “As a grievance of the appeal for defects in iudicando filed by the defense of the accused [Name6], the non-observance of articles 1, 30 and 359 of the Penal Code is alleged, since it estimates that the conduct of his client is not constitutive of any crime, because the falsehood of the document prepared by him is reduced to its intellectual content, so that in reality it is an ideological falsehood that, as it is a private document, must be declared atypical.- This Chamber considers that the claim is not admissible, because if our Penal Code distinguishes between “material” falsehood and “ideological” falsehood in public or authentic documents, this is precisely due to the legal nature of the document, which by its drafting, forms and issuance by public officials within the limit of their attributions, make full proof - as long as they are not argued to be false - of the material existence of the facts that the public official affirms in them to have carried out themselves, or to have occurred in their presence, in the exercise of their functions (cf. articles 369 and 370 of the Code of Civil Procedure). Therefore, the indicated distinction is meaningless when dealing with private documents, to which, precisely because of their informality and because they are not issued by public officials in the exercise of their functions, nor are they enforceable erga omnes, the law only recognizes the ability to attest between the parties and in relation to third parties as to the declarations contained therein, unless there is proof to the contrary, as long as they have been judicially recognized or declared as recognized according to the legislation (cf. article 379 of the Code of Civil Procedure). This Chamber does not fail to recognize that for Argentine doctrine (among which [Name25], cited by the appellant, is counted) ideological falsehood only constitutes a crime when dealing with public documents. However, this is because the structure of the criminal types contained in the Chapter on Falsification of Documents in General of its Penal Code is different from ours, which can be clearly corroborated by analyzing articles 292 to 298 bis of its legal text. In the first of those norms, under the title of Material Falsification, whoever makes in whole or in part a false document or adulterates a genuine one, in such a way that harm may result, is sanctioned, whether its nature is public or private (the only difference being the penalty provided for each case). Then, article 293 of the Argentine text indicates that “Ideological Falsification” must refer to public documents, but extending the repression, by express exception, to two types of private documents, namely, medical certificates and accepted invoices. In view of the structure of these criminal types, the reasons why Argentine doctrine indicates that the Falsification of a private document is constrained to its materiality are clear, while ideological or historical falsehood - with the two expressed exceptions - is only possible regarding public documents, since extending the punishability of ideological falsehood to all other private documents would imply an analogical application of penal law, prohibited by the principle of legality (cf. [Name26], Omar and other: Penal Code and Complementary Laws, commented, annotated and concorded, Buenos Aires, Editorial Astrea, 1987, pp. 988, 989, 991 and 992; SOLER, Sebastián: Derecho Penal Argentino, T. V, Buenos Aires, Tipográfica Editora Argentina, 1970, p. 349; FONTÁN BALESTRA, Carlos: Derecho penal Parte Especial, Buenos Aires, Abeledo Perrot, 1978, pp. 654, 655, 659; CREUS, Carlos: Falsificación de documentos en general, Buenos Aires, Editorial Astrea, 1986, pp. 127 and 128). This is why the appellant fails to substantiate her grievance with the doctrine she uses. Returning to the analysis of Costa Rican legislation and to provide further reasons on the application and interpretation of the criminal types under comment (since the criterion stated here modifies the prior jurisprudence of this Chamber, for example see resolution No. 114 at 8:25 a.m. on June 19, 1986), it must be pointed out again that articles 357 and 358 of the Penal Code allude exclusively to public or authentic documents, the former being the genus and the latter the species of the former, whose application must be resolved in each case according to the rules governing the concurrence of crimes. This is so, because unlike its counterpart in Argentine legislation, article 357 does not allude expressly and exclusively to the “materiality” of the document, but under the title of “Falsification of public and authentic documents” states that: «Whoever makes, in whole or in part, a false, public or authentic document, or alters a genuine one, in such a way that harm may result, shall be punished with imprisonment of one to six years. If the act is committed by a public official in the exercise of their functions, the penalty shall be two to eight years» (the underlining is not from the original). Article 359 of the Penal Code provides that whoever incurs the crime of Falsification of private documents is: «Imprisonment of six months to two years shall be imposed on whoever makes, in whole or in part, a false private document or adulterates a genuine one, in such a way that harm may result» (the underlining is not from the original). If we compare the two transcribed articles, we can easily verify that they are identical except in the non-underlined parts, that is, regardless of the nature of the document and other personal or occasional circumstances, both criminal types refer to the conduct of whoever makes in whole or in part a document or adulterates it, where “make” means, according to the common sense of the words, to produce, to give form, to execute, to give intellectual being, to cause, to arrange, to compose or to perfect the document (cf. the first ten common meanings of the word “hacer” in the Dictionary of the Spanish Language, Royal Spanish Academy, 21st edition, Madrid, 1992, p. 763), that is, both criminal types allude - in principle - to both the material and ideological aspects of the document, its only exception being the case in which ideological falsehood (article 358) falls on a public or authentic document, a caveat that is justified - as has been repeatedly stated - by the superior evidentiary nature of this type of documents and particularly because their realization presumes the intervention of a public official who, eventually, could be the author of either of these two crimes penalized by articles 357 and 358; or whose public faith could be materially falsified or altered by another subject (in the case of article 357), or illegally used by another person (in the case of article 358). For this reason, we estimate that our legislation, when protecting the public faith of public or authentic documents, in consideration of their nature and the qualities of the subjects that can harm it, provided for Ideological falsehood as a species of Falsification (genus), since whoever attests and “makes” the materially authentic public document may not be the person who “causes to insert” false declarations in it, concerning a fact the document must prove. Therefore, it is unnecessary, given the generic formulation of article 359, for ideological falsehood of private documents to have been expressly penalized, since these are not issued by a public official, but simply by a private individual who by themselves attests (personally or individually, not publicly) to what they record in it, so it is possible to consider as Falsification of a private document, as long as harm may result: 1) the realization of a document authentic in its material conditions of existence, but totally or partially false with respect to the facts sought to be proven as true in it, or; 2) the falsification or total or partial alteration of the materiality of a document, even if the fact sought to be proven with it is true. As a corollary of the foregoing, it turns out that the fact that the author of the ideological falsehood in the private document is not the same person who materially prepared the document, does not exclude their authorship for the purposes of article 359, but at most would imply the participation of another subject in the same crime, whether as a co-author or accomplice, which would obviously depend on the existence and concrete content of their intent” (Sala III, v. 252-97, of 9:25 a.m. on March 14, 1997). As a consequence of the foregoing, it must be concluded that the crime of use of a false document in article 372 of the Penal Code, which states: “Whoever makes use of a false or adulterated document shall be punished with one to six years' imprisonment,” is applicable both to situations in which the material content and the intellectual content of the document are falsified, even when the latter is of a private nature. The appellant maintains that the erroneous categorization of the documents as public affected the sentence regarding those acts in which the detected falsehood was of a material nature, since the severity of a falsification of a public document is greater than that of one of a private nature. Furthermore, she maintains that this categorization would have affected the sentence for the first falsifications referred to, in case the conviction for them was correct, for identical reasons. But the issue of the penalty for the conducts was already resolved in recital IX, so it is unnecessary to delve into it, and therefore no ruling is made on that point. Consequently, the rejection of the claim is required.

XII.- As a fourth objection, a lack of reasoning in the judgment is claimed with respect to the use of a false document related to the D-101 statements of the companies Edificio Adrofer Sociedad Anónima, Consultores ORS y Asociados Sociedad Anónima and Inversiones Beyof Sociedad Anónima and with respect to the sentence imposed for all crimes. The violation of articles 142 and 363 paragraph b) of the Code of Criminal Procedure, 39 of the Political Constitution, 8 of the American Convention on Human Rights and the jurisprudence of the Inter-American Court of Human Rights is affirmed. She points out that the judgment does not justify why, if the D-101 statements do not mention a list of clients, but only expenses, it is assumed that [Name5] is included in such statements. The issue concerns the following facts and statements: 4) D-101 number [Identification3], in which no list of clients is included, therefore Mrs. [Name5] is not mentioned. In the section for costs, expenses and deductions of the statement, the sum of three million six hundred thirty-three thousand three hundred thirty-three colones is simply set, without any breakdown of expenses. 5) D-101 number [Identification4], in which no list of clients is included, therefore Mrs. [Name5] is not mentioned. In the section for costs, expenses and deductions of the statement, the sum of three million nine hundred forty-two thousand three hundred thirty-three colones is simply set, without any breakdown of expenses. 10) D-101 number [Identification6], in which no list of clients is included, therefore Mrs. [Name5] is not mentioned. In the section for costs, expenses and deductions of the statement, the sum of one million nine thousand colones is simply set, without any breakdown of expenses. 11) D-101 number [Identification7], in which no list of clients is included, therefore Mrs. [Name5] is not mentioned. In the section for costs, expenses and deductions of the statement, the sum of four million colones is simply set, without any breakdown of expenses. 12) D-101 number [Identification8], in which no list of clients is included, therefore Mrs. [Name5] is not mentioned. Expenses of nineteen million eight hundred eighty-nine thousand nine hundred thirty-three colones are reported, without a breakdown of the same and without mentioning Mrs. [Name5]. Even in fact twelve, the total expenses referred to in D-101 number [Identification8] and the total expenses corresponding to [Name5] are not even mentioned. Regarding the two thousand ten period (facts 7 to 13), it is not mentioned that Inversiones Beyof Sociedad Anónima had submitted an informative statement D-151 mentioning expenses corresponding to [Name5] . At no time, in the D-151 statements of Inversiones Beyof Sociedad Anónima for two thousand ten, nor in the D-151 number [Identification21] of [Name5] for two thousand ten (fact 9) is any payment from Inversiones Beyof Sociedad Anónima to her mentioned. 14) D-101 number [Identification9], in which no list of clients is included, therefore Mrs. [Name5] is not mentioned. In the section for administrative expenses and sales of the statement, the sum of fifteen million one hundred fifty-two thousand seven hundred ninety-one colones is simply set, without any breakdown of expenses. 16) D-101 number [Identification10], in which no list of clients is included, therefore Mrs. [Name5] is not mentioned. In the section for administrative expenses and sales of the statement, the sum of one million colones is simply set, without any breakdown of expenses. In the facts for which a conviction is entered regarding the two thousand eleven period (facts 14 to 20), it is not mentioned that Edificio Adrofer Sociedad Anónima had submitted an informative statement D-151 mentioning [Name5] . Nor is it mentioned, in relation to the informative statement D-151 number [Identification23] of [Name5] . 17) D-101 number [Identification11], in which no list of clients is included, therefore Mrs. [Name5] is not mentioned. The amount of the expenses is not even specified. In the section for administrative expenses and sales of the statement, the sum of five hundred thousand colones is simply set, without any breakdown of expenses. When listing the D-151 statements for two thousand eleven (facts 18 to 20), no informative statement D-151 from Consultoría ORS y Asociados Sociedad Anónima referring to a payment to [Name5] is mentioned. 21) D-101 number [Identification13], in which no list of clients is included, therefore Mrs. [Name5] is not mentioned. Despite this, it is assumed that said statement included expenses of seventeen million three hundred forty-five thousand three hundred eighty-five colones, which included fictitious expenses in the name of Mrs. [Name5]. 22) D-101 number [Identification14], in which no list of clients is included, therefore Mrs. [Name5] is not mentioned. Additionally, it is not specified how this corrective statement would have modified D-101 number [Identification13], which would be related to the affectation it could produce, being a simple reiteration of the previous one. 27) D-101 number [Identification16], in which no list of clients is included, therefore Mrs. [Name5] is not mentioned. Despite this, it is assumed that said statement included expenses of sixteen million seven hundred sixty-seven thousand four hundred two colones, which included fictitious expenses in the name of Mrs. [Name5]. The court justified the sentence of three years' imprisonment for each act, invoking the quantity of the crimes of use of a false document. For this reason, she requests that the ground be declared with merit, that the conviction for the numbered facts 4, 5, 10, 11, 12, 14, 16, 17, 21, 22 and 27 be annulled and, for procedural economy, that the accused be acquitted; subsidiarily, that a remand be ordered. Additionally, that the sentence be annulled with respect to all crimes for which the conviction is upheld, ordering a remand. Partially with merit. Form D 101 corresponds to what is known as the “Sworn income tax return” (Declaración jurada del impuesto sobre la renta). Through it, the natural or legal person gives an account of their taxable income and the debt they must assume with the tax authority in a given year. To arrive at this, a series of factors must be considered, contemplated in the form, such as assets or liabilities acquired in the period, their income, costs, expenses and deductions. Regarding expenses, the declarant has a space to record their total amount, but not their breakdown, because the detail of these is not the purpose of the income tax return. That precise breakdown is carried out in another form, the D 151, called “Annual summary declaration of clients, suppliers and specific expenses” (Declaración anual resumen de clientes, proveedores y gastos específicos), also called “Third-party declaration”, which is likewise prepared each year. This other document comprises a general part, in which the declarant is identified and the expenses are broken down, divided by specific category; and a detail sheet in which the data of the beneficiaries of those expenses are specified. Therefore, the existence of false data included in a sworn income tax return cannot be detected by focusing exclusively on that return; rather, it must be related to the respective Annual summary declaration of clients, suppliers and specific expenses, or Third-party declaration.

Thus, it is true that in the D-101 declaration number [Identificacion3] of the company Edificio Adrofer Sociedad Anónima, from the year two thousand nine, the name of [Nombre5] is not mentioned. It is also true that, in the costs, expenses, and deductions section of the declaration, the sum of three million six hundred thirty-three thousand three hundred thirty-three colones is simply stated, without any breakdown of expenses (declarations field, certification within the manila envelope on f. 17). However, reaching that point is only going halfway, if the purpose is to establish the existence of falsehood. It is also necessary to refer to declaration 151 of the same company, number CED21, to realize that in that same year it reported total expenses for professional services of three million six hundred thirty-three thousand three hundred thirty-three colones, of which, according to the detail sheet, three million five hundred thousand colones were supposedly paid to [Nombre5]. The falsehood is evident, given that, as was proven beyond any doubt, Ms. [Nombre5] never provided professional services to that company or any other, since she is not even a professional. It is also true that in the D-101 declaration number [Identificacion4] from the year two thousand nine, of Consultoría ORS y Asociados Sociedad Anónima, a list of clients is not included, so Ms. [Nombre5] is not mentioned. Likewise, in the costs, expenses, and deductions section of the declaration, the sum of three million nine hundred forty-two thousand three hundred thirty-three colones is simply stated, without any breakdown of expenses (declarations field, certification within the manila envelope on f. 18). But this information must be related to the declaration of the same company number [Identificacion36], which indicates that in that year Ms. [Nombre5] was listed as a provider of professional services for three million five hundred thousand colones (declarations field, within the manila envelope, f. 296), which is false, for all that has already been analyzed throughout this ruling. For this reason, it can indeed be affirmed that the referenced income tax return contains false information. Likewise, it is true that in the D-101 declaration number [Identificacion6] of Edificio Adrofer Sociedad Anónima, from the year two thousand ten, a list of clients is not included, so Ms. [Nombre5] is not mentioned. It is also true that in the costs, expenses, and deductions section of the declaration, the sum of one million nine thousand colones is simply stated, without any breakdown of expenses (declarations field, certification within the manila envelope on f. 17). But that declaration must be related to number [Identificacion5] of the same company, which indicates that, in that same year, Ms. [Nombre5] was paid professional services of one million colones (declarations field, fs. 220 to 223). In this way, it is proven that part of the professional services deducted when paying the income tax corresponded to a non-existent expenditure to Ms. [Nombre5]. The D-101 declaration number [Identificacion7] from the year two thousand ten, of Consultoría ORS y Asociados Sociedad Anónima, does not include a list of clients, so Ms. [Nombre5] is not mentioned. It is also true that, in the costs, expenses, and deductions section of the declaration, the sum of four million colones is simply stated, without any breakdown of expenses (declarations field, certification in the manila envelope on f. 18). But it is also true that, in that same year, that company reported the payment of four million colones for professional services in the name of [Nombre5] (declarations field, certification on fs. 271 to 273). It is true that in the D-101 declaration number [Identificacion9] from the year two thousand eleven, of the company Inversiones Beyof Sociedad Anónima, a list of clients is not included, so Ms. [Nombre5] is not mentioned. It is also true that, in the administrative sales and expenses section of the declaration, the sum of fifteen million one hundred fifty-two thousand seven hundred ninety-one colones is simply stated, without presenting a breakdown—fifteen million five hundred forty-three thousand one hundred ninety-one colones, if the concept of depreciation, amortization, and depletion is added, to establish the absolute total of expenses— (declarations field, certification in the manila envelope on f. 16). However, this information must be correlated with that recorded in the expense declaration [Identificacion12], of the same company and the same year, in which it is recorded that part of what was paid in that period were professional services for eight million colones to Ms. [Nombre5] (declarations field, certification on fs. 157 to 173). It is also true that in the D-101 declaration number [Identificacion13] from the year two thousand twelve, of the corporation Inversiones Beyof Sociedad Anónima, a list of clients is not included, nor is [Nombre5] mentioned, despite which it is understood that said declaration included expenses of seventeen million three hundred forty-five thousand three hundred eighty-five colones, including fictitious expenditures in the name of Ms. [Nombre5] (declarations field, certification on fs. 63 to 81). However, it cannot be overlooked that the expense declaration [Identificacion15] for that year from that company clearly states that professional services were paid to Ms. [Nombre5] (declarations field, certification on fs. 174 to 187), who never provided them. It is equally true that the D-101 declaration number [Identificacion14] from the year two thousand twelve of the company Inversiones Beyof Sociedad Anónima does not include a list of clients, so Ms. [Nombre5] is not mentioned, since this does not correspond to this type of declaration (declarations field, certification on fs. 63 to 81). But as already indicated in the previous case—this being a rectification of number [Identificacion13]—the expense declaration [Identificacion15] for that year, from that company, states that professional services were paid to Ms. [Nombre5] (declarations field, certification on fs. 174 to CED22), which is not true. It is also questioned what this rectifying declaration would have modified from D-101 number [Identificacion13]. The answer is found in the filing date seen in the documents: one was filed on the twentieth of November two thousand twelve and the other on the following day, as seen at the end of each, so there were two uses of a false document on different days. It is also true that the income tax return D-101 number [Identificacion16] does not include a list of clients, so Ms. [Nombre5] is not mentioned, and included expenses of sixteen million seven hundred sixty-seven thousand four hundred ninety-two colones (correcting the small material error incurred by the appellant) (declarations field, certification on fs. 69 to 81). However, it cannot be overlooked that said company, in that year, indicated expenses of six million colones in the name of Ms. [Nombre5], on two occasions, in declarations [Identificacion17] and [Identificacion18] (declarations field, certification on fs. 188 to 204). The appellant must be granted reason regarding the D-101 declaration number [Identificacion8] from the year two thousand ten, of the company Inversiones Beyof Sociedad Anónima, which finds no linkage to [Nombre5] through the third-party declaration for the year two thousand ten, number [Identificacion37], of said corporation, since the latter does not mention said person (declarations field, certification on fs. 138 to 140). It is not clear where the trial court derived that there was a falsehood in the income tax return, so on this point the judgment must be annulled and a remand ordered. The same occurs with the D-101 declaration number [Identificacion10] from the year two thousand eleven, of the company Edificio Adrofer Sociedad Anónima. In the third-party declarations of that company, from that year, numbered CED23, CED24, and CED25, the payment of professional services to Ms. [Nombre5] is not recorded (declarations field, certification on fs. 223 to 233). The claim regarding the D-101 declaration number [Identificacion11] from the year two thousand eleven, of the company Consultoría ORS y Asociados Sociedad Anónima, is also admissible, as it finds no support in the third-party declaration of the company for the year two thousand eleven, number CED26 (declarations field, certification on fs. 274 to 279). Consequently, it is necessary to annul the conviction for these last three declarations, ordering a remand for new substantiation in accordance with the law. The matter of the consequences of what is ordered here on the penalty, which the appellant brings up, must be disregarded by reason of what is ordered on the subject in Considerando IX of this resolution. In all other respects, the rejection of the claim is required.

XIII.- As the fifth ground, a lack of correlation between the accusation and the judgment is claimed, in violation of articles 142 and 365 of the Código Procesal Penal and 39 of the Constitución Política. It maintains that fact number 12, referring to declaration number [Identificacion8], includes fictitious payments to [Nombre5], but it departs from accused fact number 9, from the year two thousand ten, in which this is not affirmed. The reference to expenses is with respect to declaration [Identificacion7], in the name of Consultoría ORS y Asociados Sociedad Anónima, and to [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima. On the other hand, fact 16, concerning D-101 declaration number [Identificacion10], departs from fact 3 of the accusation, referring to the year two thousand eleven, in which said declaration is mentioned. The accusation made no mention of amounts or that it reported fictitious expenses in favor of [Nombre5]. With respect to fact 17, D-101 declaration [Identificacion11], it mentions fictitious payments to [Nombre5], departing from accused fact 3, in which it simply states that the declaration was filed, without attributing that it contained fictitious payments in favor of [Nombre5]. The judgment adds that through that declaration, fictitious payments to [Nombre5] were included. The annulment of the conviction for the indicated facts should lead to the annulment of the three-year penalty set in relation to all the facts for which the conviction was handed down, since, to justify the sanction, the court repeatedly mentioned that it was due to the conviction for thirty-two uses of a false document. Therefore, it requests that the ground be granted, that the conviction for facts 12, 16, and 17 be annulled, and that the defendant be acquitted, for procedural economy; subsidiarily, that a remand be ordered. Furthermore, that the penalty be annulled with respect to all the crimes for which the conviction is upheld. It is not applicable. After a brief introduction regarding the defendant's relationship with the corporations whose tax returns were falsified, the accusation narrates the following: "5. By virtue of the above, the accused [Nombre1], as representative and member of the Board of Directors of the companies described above, devised a criminal plan to benefit herself financially through her companies by means of the lower payment of taxes, which she achieved by including false data in declarations before the Dirección General de Tributación of the Ministerio de Hacienda. To do this, she also usurped the identity of the victim [Nombre5], for which she had the collaboration and active participation of the co-defendant [Nombre6] who served during the investigated period as the trusted accountant of Ms. [Nombre1]. a. In this manner, in the period between 2004 and 2013, the accused [Nombre1] and [Nombre6] included false data in the official forms of the Dirección General de Tributación of the Ministerio de Hacienda, for the Annual Declaration of Clients, Suppliers, and Specific Expenses (Form D151) and the Sworn Declaration of Income Tax (Form D101) of the companies Inversiones BEYOF S.A., Edificio ADROFER S.A., and Consultoría ORS y Asociados S.A. In these documents, the accused falsely stated that the victim [Nombre5] provided professional services to the indicated companies, by virtue of which fees were paid to her that were classified as company expenses and therefore reduced the tax base of the taxes they had to pay. b. In the same manner, the accused [Nombre1] and [Nombre6], in the period between 2004 and 2013, included false data in the official forms of the Dirección General de Tributación of the Ministerio de Hacienda, for the Annual Declaration of Clients, Suppliers, and Specific Expenses (Form D151) and the Sworn Declaration of Income Tax (Form D101) of the victim [Nombre5], falsely stating that said victim provided professional services to the indicated companies, by virtue of which fees were paid to her" (accusation uploaded to the virtual desktop on October 18, 2016, pp. 2 and 3). Subsequently, the accusation specified the data for each of the declarations in which the referenced conduct was materialized. Regarding those related to this claim, it was indicated in the accusatory document: "9.- It was thus that on December 14, 2010, the accused [Nombre1], with the intention of benefiting through the lower payment of tax burdens, personally or through an intermediary person, at a branch of Scotiabank, simultaneously filed the Sworn Declarations of Income Tax D-101 numbers [Identificacion8] in the name of Inversiones BEYOF Sociedad Anónima [...]" (accusation, p. 14); and "3.- It was thus that, the accused [Nombre1] and [Nombre6], acting by common agreement according to the plan devised to defraud the tax administration with the aim of reducing their tax responsibilities and benefiting from the lower payment of tax burdens, simultaneously filed declarations [Identificacion9] in the name of the company Inversiones BEYOF Sociedad Anónima, number [Identificacion22] in the name of the victim [Nombre5], number [Identificacion10] in the name of Edificio ADROFER Sociedad Anónima, and [Identificacion11] in the name of Consultoría ORS y Asociados Sociedad Anónima on December 9, 2011, at the same branch of Banco Scotiabank, Scotia Private Client Group Transito #204" (accusation, pp. 15 and 16). With the exception of the changes made in the introductory part, by virtue of the fact that the defendant was convicted only for conduct after the year two thousand nine, what was transcribed was practically reiterated in the proven facts of the judgment (judgment, pp. 104, 105, 113, and 114), so that no violation of the correlation between accusation and judgment is perceived when comparing accused facts and proven facts. However, the appellant detects certain differences between the accusation and what is recorded in the substantive analysis section. What must not be overlooked is that this is the product of the natural enrichment derived from the reception of evidence during the trial. Thus, in what the appellant identifies as "fact number 12"—which is not a proven fact, but one that corresponds to the reasoning—when performing the intellectual analysis, it is indicated: "12) D-101 number [Identificacion8], with the intention of benefiting through the lower payment of tax burdens, [Nombre1] signed said declaration which was in the name of Inversiones Beyof S.A., in which false information was included regarding sales and administrative expenses, which included the expenses reported in the name of [Nombre5], a declaration that was filed with the Tax Administration on December 14, 2010, and which, for greater abundance, it is clear that said declaration was signed by the sentenced Taitelbaum, since in Expert Report No. DCF: 2015-01402-AED issued by the Sección de Análisis de Escritura y Documentos Dudosos of the Departamento de Ciencias Forenses, in Result 12 her signature is confirmed [...]" (judgment, p. 189, bold from the original). The appellant's complaint is that in fact 9 of the year two thousand ten, in the accusation, it was not specified that this declaration was related to fictitious payments to [Nombre5], which is indeed true. However, it leaves aside that this fact 9 of the accusation cannot be read in isolation from the general part thereof, transcribed above, which clearly indicates that the maneuvers carried out by the defendant and the accounting assistant [Nombre6] consisted precisely of attributing to the companies represented by [Nombre1] the payment of non-existent services to Ms. [Nombre5]. Point 12, of which the appellant complains, is no more than another way of wording the same thing already included in the accusatory document, if one wishes, with greater precision. The fundamental point is that with this wording, nothing is introduced that cannot be extracted from a complete reading of the prosecutorial request. The appellant's error lies in comparing that point 12 with the exclusive reading of accused fact number 9, thus arriving at a biased interpretation. Something similar occurs with what is called "fact 16," which is seen in the intellectual reasoning of the judgment. In it, the lower court affirms: "16) D-101 number [Identificacion38], in which false information was included regarding the sales and administrative expenses of the company Edificio Adrofer S.A., for an amount of one million colones, which included the fictitious expenses reported in the name of [Nombre5], and with the intention of benefiting through the lower payment of tax burdens, said declaration was filed with the Tax Administration on December 9, 2011, and for greater abundance, it is clear that said declaration was signed by the sentenced Taitelbaum, since in Expert Report No. DCF: 2015-01402-AED issued by the Sección de Análisis de Escritura y Documentos Dudosos of the Departamento de Ciencias Forenses, in Result 21 her signature is confirmed [...]" (pp. 191 and 192). The complaint is about the inclusion of amounts and the name of Ms. Otárola, which is not seen in fact 3 of the year two thousand eleven of the accusation. But the precision of the amount is a product of the evidence gathered at trial and, most importantly, the essential description of the conduct has not varied, as long as the error of reading that fact 3 separately from the introductory part of the accusation is avoided. Finally, the complaint regarding "fact 17" derives from the same type of error. In the substantive assessment, the court stated: "17) D-101 number [Identificacion39], in which false information was included regarding the sales and administrative expenses of the company Consultoría ORS y Asociados S.A., which included the fictitious expenses reported in the name of [Nombre5], and with the intention of benefiting through the lower payment of tax burdens, said declaration was filed with the Tax Administration on December 9, 2011, and for greater abundance, it is clear that said declaration was signed by the sentenced Taitelbaum, since in Expert Report No. DCF: 2015-01402-AED issued by the Sección de Análisis de Escritura y Documentos Dudosos of the Departamento de Ciencias Forenses, in Result 27 her signature is confirmed" (p. 192, bold from the original). Once again, it must be indicated that the reference to the inclusion of expenses in favor of Ms. [Nombre5] is not a matter foreign to the accusation, as long as one does not incur the error of reading fact 3 of the year two thousand eleven in an isolated manner, understanding that, as a unit, the accusation cannot be understood if its general part is excluded. Despite the fact that the errors indicated in this ground are not admissible, it is worth noting that, for different reasons, indicated in the preceding Considerando, the conviction for declarations number [Identificacion10] of Edificio Adrofer Sociedad Anónima and [Identificacion11] of Consultoría ORS y Asociados Sociedad Anónima were annulled, which will be taken into account in the operative part of the judgment. For the reasons stated, the rejection of the ground heard here is appropriate.

XIV.- APPEAL OF THE PROCURADURÍA GENERAL DE LA REPÚBLICA. Mr. Miguel H. Cortés Chaves, Procurador de la Ética, also appeals the judgment issued in this case. As a sole ground, he alleges a lack of reasoning and contradictory reasoning in the rejection of the civil claim for social harm (daño social). He affirms that it was proven that the defendant used false documents, being a person who held an important position in public office, which was tarnished by the acts committed. The head of the Defensoría de los Habitantes herself asked a private individual to lie to a journalist to avoid tarnishing her name, because her position was very important, recognizing that the institution's image was harmed. A legal entity such as the Defensoría de los Habitantes can suffer moral damage (daño moral), especially due to conduct like that of its head, which harms the intangible values that constitute part of the institution's patrimonial value. The interest injured in this case is public, due to the evasion carried out by a public official who held the highest office in the Defensoría. The fact that a public official was prosecuted for a crime and convicted, even if for actions carried out in the personal sphere, generates social harm (daño social). The head of that institution must have moral solvency, in accordance with Article 4 of the Ley de la Defensoría de los Habitantes. The Defensoría is the body responsible for defending the rights and interests of the inhabitants. It must ensure that the functioning of the public sector adheres to morality, justice, the Constitución Política, the laws, the conventions, treaties, and pacts signed by the Government, and the general principles of law. The court's reasoning was contradictory when it considered that the acts were committed in her private sphere, but then indicated that said office calls for maintaining behavior as an honest, decent, moral citizen, as a public figure in the private sphere. Social harm (daño social) is a category of non-material harm (daño inmaterial), subject to the same rules as moral damage (daño moral). The defendant [Nombre6] acknowledged that these acts harmed the defendant [Nombre1] for being a public figure. People who heard the news expressed their discontent on social networks. He maintains that public officials must respect ethical values and cites an opinion of the Procuraduría General de la República. Article 38 of the Código Procesal Penal allows the Procuraduría to exercise civil action when collective and diffuse interests are affected. The court could have derived the existence of a social harm (daño social), as non-material harm (daño inmaterial), without having direct proof and by making a derivation based on human presumptions. Therefore, he requests that the appeal be declared admissible, that the resolution be annulled regarding the rejection of the social harm (daño social), and that it be resolved in accordance with the law. Granted. The judgment under review rejected the social harm (daño social) item of the civil action, arguing the lack of a causal relationship between the conduct carried out and the harm invoked (judgment, p. 262). However, if one delves deeper into the court's reasoning, that causality problem it mentions has to do with the separation of the public and private spheres in which the defendant operated. The court said it thus: "The proven acts were committed by the civil defendant in her private sphere, even under the representative role held in three corporations of which she was a partner and legal representative, and not in the exercise of her function as Defensora de los Habitantes, a public office which, although she held at the time of the acts, the truth is that said office calls for maintaining good behavior as a citizen, to be honest, decent, moral, as a public figure in her private sphere, and in that she gravely failed, as was set out in the section on penalty setting and reasoning; but, it cannot be said for that reason that in said private sphere, personal, even family sphere (since the three corporations also belong to her family members), she must act with a duty of probity, since she is no longer within any public institution, she is not directing any public official, she is not making decisions that impact the institution where she works (Defensoría de los Habitantes), but rather she becomes a citizen like everyone else; for which reason the assessments and therefore the conclusion held by the expert in his report, as well as what was stated in the debate, are erroneous. / Besides the above, it has become abundantly clear that what was violated was PUBLIC FAITH as the protected legal interest (see considerando on legal classification), not the duty of probity, so that the thesis of the civil plaintiff that the alleged social harm (daño social) was produced, by affecting the image and trust that the people had in said representation, in said public institution, can be accepted" (pp. 262 and 263, highlighting from the original). As can be seen, the underlying argument is that the criminal activity of the Defensora de los Habitantes, carried out in the sphere of her private life, cannot cause social harm (daño social); that only when she commits crimes in the exercise of her functions and violating her duty of probity does she have the possibility of causing harm of that nature. In other words, the opinion of the adjudicating body is not simply that, in light of the proven facts, the conduct of the Defensora did not cause harm to society, but rather that, due to the nature of the actions, such harm is not possible. This chamber does not share that criterion. From the moment it filed the civil action brief, the Procuraduría General de la República stated that "It is undeniable that the facts claimed here constitute acts of corruption that, in addition to the direct damage they may have caused to the public treasury, have caused a social harm (daño social), due to the decrease in credibility in public officials, which is claimed here with the filing of this Acción Civil Resarcitoria in accordance with the provisions of Article 38 of the same legal body" (civil action uploaded to the virtual desktop on November 30, 2016, p. 30). It is then necessary to ask: can the commission of thirty-two crimes of use of a false document—or twenty-nine, if the annulments ordered here are taken into account—by the Defensora de los Habitantes, within the framework of coordinated and structured criminal activity over several years, undermine the credibility of said institution? The answer is affirmative. In the first place, because the very Law of the Defensoría de los Habitantes de la República considers the moral quality of the person who is to hold its direction to be essential. Article 4 of said law states that "A Costa Rican person who is in the exercise of their civil and political rights, who is over thirty years of age, with recognized moral solvency and professional prestige, may be appointed defensor or defensora de los habitantes de la República [...]". Note that this is an "entry requirement," a prior condition for aspiring to the office of Defensor de los Habitantes; the individual must have shown evidence of possessing that moral solvency, even before becoming part of the institution. One who seeks to hold the office cannot claim that their prior behavior, not having been carried out in the exercise of their functions, is not relevant; it is a requirement consubstantial to the office. It could not be otherwise, considering the function of said body. Article 2 of its law describes its general attribution thus: "The Defensoría de los Habitantes de la República is the body responsible for protecting the rights and interests of the inhabitants. / This body shall ensure that the functioning of the public sector adheres to morality, justice, the Constitución Política, the laws, the conventions, the treaties, the pacts signed by the Government, and the general principles of law. Additionally, it shall promote and disseminate the rights of the inhabitants." How could a senior official with serious moral questions ensure morality in the functioning of the public sector? This is further reinforced by what is indicated in numeral 6 of the referenced law, which states: "The Defensor de los Habitantes de la República shall cease in their functions, for any of the following causes: / [...] d) Having been convicted, by final judgment, for a willful crime (delito doloso)." The condition of criminal, on a willful basis, is absolutely incompatible with that of defensor de los habitantes, regardless of whether the crime was committed, or not, as part of the exercise of the office. It is not just a legal requirement, more or less felicitous. In reality, the honorability of the defensor de los habitantes is fundamental for the fulfillment of the duties of the Defensoría, since the powers attributed to it by law are merely investigative and for filing complaints (Articles 12 to 14 of the cited regulations); the Defensor merely exercises a moral magistracy. Lacking the required moral weight, which is built in the eyes of the citizenry, the institutional strength weakens, and the fulfillment of its function is hindered. If citizens come to consider that the Defensor de los Habitantes has inappropriate moral behavior in their business dealings and engages in systematic criminal actions, in collusion with third parties, the effectiveness of the institution in our society can be severely affected. For all the above, this appellate chamber cannot share the basic assumption adopted by the trial court to reject the social harm (daño social).

The intentional criminal behavior of the Defender of the Inhabitants, verified in her private sphere, can indeed cause damage to the institution and, consequently, affect society. It must be clear that the court does not prejudge the merits of the issue in question, which would imply an analysis of the evidence in the specific case, a matter that is the exclusive competence of the trial court; it is simply stated that the fundamental premise from which the lower court (a quo) started is mistaken, which warrants the declared nullity.

XV.- Dissenting Vote of Judge González González. The first ground of challenge by Attorney Fabio Oconitrillo Tenorio and Attorney Gloriana Jiménez Rey, in their capacity as defense lawyers for the accused [Nombre1], and the third ground of challenge in the appeal against the judgment filed by the defendant [Nombre1] under the legal sponsorship of Dr. Javier LLobet Rodríguez, are granted. Consequently, [Nombre1] is acquitted of thirty-two counts of use of a false document allegedly committed to the detriment of public faith. As a result of this ruling, the lifting of the precautionary measures ordered against [Nombre1] is ordered. On the merits: With respect to the majority vote signed by Judges Mena Artavia and Araya Vega, I concur in issuing a dissenting vote, in summary, because I believe that in the sub judice case, the tax regulations (Tax Code of Norms and Procedures) were applicable, due to their special nature, and not the general ones (Penal Code), regarding the issue of the documentary falsehoods the defendant is accused of committing. Thus, it was an unavoidable correlation of Articles 66, 67, 70, 81, 89, and 92 of the Tax Code of Norms and Procedures (hereinafter [Nombre27].), Law No. 4755, with numerals 23, 368, and 372 of the Penal Code, to conclude that we are facing an apparent concurrence of norms when, to defraud the public treasury (an illicit tax act that can be classified as an administrative infraction or a tax crime, depending on the amount of the defrauded quota), the falsehood falls on the content of the self-assessment declaration of events generating a tax obligation (falsehood of content in a private document), which is then submitted to the Tax Administration by the taxpayer (use of a false private document). Thus, it is pertinent to cite that Article 65 of the C.N.P.T. establishes that the illicit acts are one and that, depending on whether they are classified as administrative infractions or tax crimes, they will be heard by the Tax Administration or the Judiciary. However, always on the understanding that the taxpayer cannot be sanctioned for the same illicit tax act on more than one occasion, be it on the same grounds and for the same facts (double ruling for the same incrimination), as a guarantee of legal certainty provided by the principle non bis in idem. Article 66 of the C.N.P.T. provides as follows: “Verification of illicit tax acts The verification of illicit tax acts must respect the ‘non bis in idem’ principle, according to the following rules: a) In cases where the infractions may constitute tax crimes, the Administration shall transfer the matter to the competent jurisdiction, pursuant to Article 89, and shall refrain from continuing the sanctioning procedure as long as the judicial authority does not issue a final judgment. The sanction of the judicial authority shall exclude the imposition of an administrative sanction for the same facts. // If the existence of the crime has not been found, the Administration shall continue the sanctioning file based on the facts considered proven by the courts. b) In cases where the Tax Administration has already established a sanction, this shall not prevent initiating and developing the judicial action. However, if this results in a conviction of the subject, the infractions that may be considered preparatory acts of the crime, whether actions or omissions included in the criminal type, shall be understood as subsumed in the crime. Therefore, the administrative sanctions imposed must be revoked, if their nature permits.” This principle, although concerning an illicit tax act different from the one under consideration here (closure of premises), was developed by the Constitutional Chamber (Sala Constitucional) when it held: “VII.- Non bis in idem. Another important topic regarding the closure, and perhaps one of the most complex, is that of respect for this principle and its application when there is a concurrence of infractions. Non bis in idem, protected in Article 42 of our Political Constitution, aims to avoid double punishment for the same fact; thus, it would be violated when, as a consequence of carrying out a single fact, a duplicity of sanctions is imposed on the person responsible for it. The doctrine has assigned it the following consequences: first, the prohibition of sanctioning penal and administratively for the same facts; second, the preference of criminal proceedings over administrative ones, in the sense that the procedure initiated in the criminal sphere prevents any subsequent one; and third, the duty of the Administration to respect the factual framework analyzed by the Courts. These consequences derive from the auxiliary and delegated nature of administrative sanctioning powers with respect to the Judiciary, for given the differences between the Administration and Jurisdiction and the constitutional subjection of the former to the latter, the priority of the Courts when hearing facts susceptible of dual qualification is completely logical. For the violation of this principle, we must be facing the same fact doubly sanctioned, understood as the identity of the subject, fact, and grounds, requirements for the verification of which problems exist because, in some cases, the same fact can injure different interests, protected in different norms and constitutive of several crimes or infractions, and consequently giving rise to several sanctions without violating any principle. The doctrine indicates that there is no bis in idem when two independent results have arisen from the same fact that are correctable by different entities or susceptible of being integrated into concurrent but differentiated legal spheres or categories, allowing for different but simultaneous aspects of liability. In these cases, these are matters of different nature, which is why it is spoken of an ideal concurrence. This naturally supposes the same fact that violates diverse legal provisions, with the basic characteristic that these do not exclude each other. It must be understood that no violation of non bis in idem occurs if the sanctions are accumulated totally or partially, precisely because there is no identity of grounds. The opposite is the case of the apparent concurrence of norms that requires the prevalence of one of the provisions, determining the non-application of the others, in which case, if the sanctions are accumulated, the violation does occur” (Resolution No. 2000-08191 of 3:03 p.m., September 13, 2000. Emphasis supplied). As can be inferred from the cited norms and the mentioned jurisprudence, there is no qualitative criterion between administrative infractions and tax crimes, by classifying both as 'illicit tax acts', but rather a formal difference, under the understanding that the administrative illicit act also contains within itself an ethical-social devaluative judgment which, due to its lesser severity (considering its amount as a valuation criterion, according to Articles 81 and 92 of the C.N.P.T.) entails an administrative sanction and not a criminal one. Coupled with this, since there is no difference in the protected legal interest, the public treasury, the decision appears correct, as a matter of criminal policy, to regulate and protect by criminal law only the essential interests and to protect by administrative law the injuries that, as a consequence of the defrauding, affect the State's interests with lesser intensity, under the principles of minimum intervention and ultima ratio. It is in this context that the illicit tax act called 'material infractions due to omission, inaccuracy, or improper request for compensation or refund, or for obtaining improper refunds' is located, described in Article 81 of the C.N.P.T., and the crime of fraud against the public treasury, provided in numeral 92 ibidem. Clearly, in relation to intentional active and omissive conducts aimed at defrauding the public treasury, since numeral 81 also includes negligent conduct or even actions under mistake (which are not being analyzed in the specific case). In this order, according to the cited norm, the following constitute tax infractions and are sanctioned with a fine, among other conducts: “1. […] b) Submitting inaccurate self-assessment declarations. This infraction is configured when the taxpayers fail to pay, within the legally established deadlines, the corresponding tax quotas, through the submission of inaccurate self-assessment declarations. For these purposes, inaccuracy shall be understood as: i. The use of false, incomplete, or inaccurate data, from which a lower tax or a lower balance to pay or a higher balance in favor of the taxpayer or responsible person is derived. ii. The arithmetic differences contained in the declarations submitted by the taxpayers. These differences occur when performing any arithmetic operation results in an incorrect value or when rates different from those legally fixed are applied, implying, in either case, lower tax values or higher balances in favor than those that should have corresponded. iii. In the case of the withholding at source declaration, the omission of some or all of the withholdings that should have been made, or those made and not declared, or those declared for a lower value than what corresponds. // The basis of the sanction shall be the difference between the amount settled in the ex officio determination and the amount self-assessed in the taxpayer's declaration. […] 3. Applicable sanctions. The material infractions described in subparagraphs a), b), c), and d) of paragraph 1 of this article shall be sanctioned with a pecuniary fine of fifty percent (50%) on the corresponding basis of the sanction. // For all the above infractions that could be classified as serious or very serious, as described below, and provided that the basis of the sanction is equal to or less than the equivalent of five hundred base salaries, the sanctions established for each case shall apply: […] b) Those infractions in which fraudulent means have been used shall be classified as very serious, understood as such: i. Substantial anomalies in the accounting and in the books or records established by tax regulations. Considered substantial anomalies are: the absolute non-compliance with the obligation to keep accounting or the books or records established by tax regulations; keeping different accounting records that, referring to the same activity and economic year, do not allow knowing the true situation of the company; keeping the accounting books or the tax books or records incorrectly, through false entries, records, or amounts, or accounting in incorrect accounts in a way that alters its tax consideration. The application of this last circumstance shall require that the incidence of keeping the books or records incorrectly represents a percentage greater than fifty percent (50%) of the basis of the sanction. ii. The use of invoices, receipts, or other false or falsified documents, provided that the incidence of the false or falsified documents or supporting documents represents a percentage greater than ten percent (10%) of the basis of the sanction. iii. The use of intermediary persons or entities when the infringing subject, for the purpose of hiding their identity, has had the ownership of goods or rights, the obtaining of income or capital gains, or the performance of operations with tax transcendence from which the tax obligation derives, appear in the name of a third party, with or without their consent, the non-compliance of which constitutes the infraction being sanctioned. // When the infraction is classified as very serious, a sanction of one hundred fifty percent (150%) shall be imposed on the totality of the corresponding basis of the sanction” (Highlighting is original). As can be seen, the action of 'use of false data' necessarily involves intentional conduct aimed at deceiving or defrauding the public treasury, insofar as knowledge is required that the data are not true and that, with their use (agent's will), 'a lower tax or a lower balance to pay or a higher balance in favor of the taxpayer or responsible person' will be produced. Even infractions in which 'The use of false or falsified invoices, receipts, or other documents' or 'The use of intermediary persons or entities' is determined are classified as very serious, when used to hide from the Tax Administration their condition as the taxpayer of the tax obligation, causing to appear (which is just another way of inducing the public treasury into error) '…in the name of a third party, with or without their consent', the ownership of: i) goods or rights, ii) the obtaining of income or capital gains, and iii) the performance of operations with tax transcendence. Corollary, the lower court's (a quo's) exposition that the norm of Article 81 of the C.N.P.T. only refers to accounting or material errors that appear in self-assessments classified as inaccurate, is incorrect, for contravening the literalness and grammar of the norm and, as will be explained below, its teleological interpretation. In this sense, it cannot be ignored that the cited norm was modified by Article 1 of Law No. 9069 of September 10, 2012, \""Law to Strengthen Tax Management\"", so that, prima facie, in adherence to the principle of non-retroactivity of the law and the application of the sanctioning law over time (Article 11 of the Penal Code), this reform would only be applicable to the conduct carried out through income tax self-assessments submitted in the fiscal periods of 2012 and 2013; while its previous wording to the events carried out through the self-assessments of the periods 2009, 2010, and 2011. However, the normative description of Article 81 C.N.P.T. in force for these latter fiscal periods was not very different and, in either one, the wrongfulness due to deceptive conduct carried out to the detriment of the public treasury was always maintained. Note that, according to the reform this numeral underwent by Article 2 of Law No. 7900 of August 3, 1999, the submission of inaccurate declarations was always sanctioned for 'the use of false data […] from which a lower tax or a lower balance to pay or a higher balance in favor of the taxpayer or responsible person is derived'. It also established that this was a type of deception to the Tax Administration, but that it would only be sanctioned (administratively), if it exceeded the amount that was stipulated at that time. The mentioned article describes it as follows: 'In the cases described in this article where the Tax Administration determines that it has been induced into error, by simulating data, deformation or concealment of true information or any other suitable form of deception, for an amount less than two hundred base salaries, the sanction shall be seventy-five percent (75%)' (Emphasis supplied). Corollary, it cannot be denied that with one wording or another of Article 81 of the C.N.P.T., according to the law reforms it has undergone within the period in which the generating tax event occurred (before and after 2012), the same purpose of the tax norm has always been maintained, which is to differentiate the administrative wrongfulness from the criminal wrongfulness based on the economic amount derived from the defrauding. This is so because Article 92 of the C.N.P.T., which was in force from August 3, 1999 (Law No. 7900) until September 10, 2012 (Law No. 9069), provided: 'Inducing the Tax Administration into error. // When the amount defrauded exceeds two hundred base salaries, whoever induces the Tax Administration into error, by simulating data, deformation or concealment of true information, or any other suitable form of deception to induce it into error, with the purpose of obtaining, for themselves or for a third party, a patrimonial benefit, an exemption, or a refund to the detriment of the Public Treasury, shall be sanctioned with five to ten years of imprisonment. // For the purposes of the provisions of the preceding paragraph, it must be understood that: a) The amount defrauded shall not include interest, fines, or surcharges of a sanctioning nature. b) To determine the mentioned amount, if dealing with annual period tributes, the quota defrauded in that period shall be considered; for taxes whose periods are less than twelve months, the amounts defrauded during the period between January 1st and December 31st of the same year shall be added together. // In other tributes, the amount shall be understood as referring to each of the concepts for which a generating event is susceptible of determination. // The fact that the subject repairs their non-compliance, without any requirement or action by the Tax Administration to obtain the repair, shall be considered an absolute legal excuse. For the purposes of the preceding paragraph, action by the Administration shall be understood as any action carried out with the notification to the taxpayer, aimed at verifying compliance with the tax obligations related to the tax and period in question' (Highlighting is original). As can be seen, just as Article 81 of the C.N.P.T. did, it sanctioned whoever induced the Tax Administration into error, among these, by simulating data or any other form of deception (within which the inclusion of false data in tax self-assessment declarations cannot be excluded), with the purpose or aim of obtaining a patrimonial benefit -be it for themselves or for a third party-. Likewise, in accordance with Article 81 C.N.P.T., Article 92 (in force for the fiscal periods accused of being defrauded, years 2009, 2010, and 2011) provided that the illicit tax act would only be considered a crime, and not an administrative infraction, when it exceeded the economic quantum stipulated for such purposes -two hundred base salaries at that time-. This criminal wrongfulness did not change with the reform of the cited Article 92, enacted by Article 1 of Law No. 9069 of September 10, 2012, \""Law to Strengthen Tax Management\"", which provides: 'Fraud against the Public Treasury. // Whoever, by action or omission, defrauds the Public Treasury with the purpose of obtaining, for themselves or for a third party, a patrimonial benefit, evading the payment of tributes, withheld amounts or that should have been withheld, or payments on account of compensations in kind or unduly obtaining refunds or enjoying tax benefits in the same way, provided that the amount of the defrauded quota, the non-paid amount of withholdings or payments on account or of the refunds or tax benefits unduly obtained or enjoyed exceeds five hundred base salaries, shall be punished with a prison sentence of five to ten years. // For the purposes of the provisions of the preceding paragraph, it must be understood that: a) The amount of five hundred base salaries shall be considered an objective condition of punishability. b) The amount shall not include interest, fines, or surcharges of a sanctioning nature. c) To determine the mentioned amount, if dealing with periodic tributes, withholdings, payments on account, or refunds, or those of periodic declaration, the amount defrauded in each tax period or declaration period shall be considered and, if these are less than twelve months, the amount defrauded shall refer to the calendar year. In other cases, the amount shall be understood as referring to each of the distinct concepts for which a taxable event is susceptible of assessment. // The fact that the subject repairs their non-compliance, without any requirement or action by the Tax Administration to obtain the repair, shall be considered an absolute legal excuse. // For the purposes of the preceding paragraph, action by the Administration shall be understood as any action carried out with the notification to the taxpayer, aimed at verifying compliance with the tax obligations' (Emphasis supplied). In this case, upon reviewing the etymological content of the term 'defraud' it is specified as: \"1. tr. To deprive someone, with abuse of their trust or with infidelity to one's own obligations, of what is rightfully theirs. 2. tr. To frustrate, to dissipate the trust or hope placed in someone or something. 3. tr. To evade or circumvent the payment of taxes or contributions\" (ROYAL SPANISH ACADEMY: Dictionary of the Spanish language, 23rd ed., [version 23.3 online]. https://dle.rae.es. Retrieved November 17, 2020. Similarly, for the cited Dictionary 'circumvent' (burlar) is defined as \"2. tr. To deceive (to induce to believe something that is not true)\". Through these distinct definitions, it can be concluded that the content of the illicit action in Article 92 of the Tax Code of Norms and Procedures is similar to that of the repealed numeral 92 of that same legal body and, in turn, to part of the illicit administrative conduct described in Article 81 of the C.N.P.T., since in all of them the conduct of inducing the Tax Administration into error prevails, with the purpose of obtaining, for oneself or for a third party, a patrimonial benefit, to the detriment of the public treasury. Thus, as the Constitutional Chamber has sustained, a criterion shared by the signatory of this minority vote: “…ordinal 81 and 92 of the Tax Code of Norms and Procedures, respond to a different legal nature and to diverse faults, one of an administrative type and the other of a criminal nature. Particularly, it must be noted that, although both articles contain, within some part of their factual description, that the tax administration has been induced into error 'by simulating data, deformation or concealment of true information or any other suitable form of deception', the truth is that, on the other hand, there exists an essential difference between them in terms of their regulation […], which lies precisely in the determination of the economic quantum derived from the error or defrauding, which, in turn, is calculated with respect to the base salaries referred to in the preceding recital and on which, it was clarified, this Chamber will not issue any criterion” (cf. Resolution No. 2015-10498 of 9:43 a.m., July 15, 2015). In other words, the two norms coincide in that both sanction the illicit conduct of inducing the administration into error; however, the application of one or the other responds to the legal nature of whether it is administrative or criminal, based on the amount defrauded. It is clear, for the constitutional court and for the signatory of this minority vote, in this factual scenario, that the competence of the administrative or criminal venue does not obey qualitative criteria, but a formal one or one of criminal policy, as stated above, and, therefore, the economic quantum is of utmost importance, as it is considered by the legislator as 'an objective condition of punishability' (an aspect that will be discussed below). Added to this, according to Article 120 C.N.P.T., the principle of self-assessment of the tax obligation governs in our environment, which consists of the taxpayer voluntarily paying what they must pay for taxes, once the generating event is configured and verified. So, this self-determination must be made '…in accordance with the sworn declarations submitted by the taxpayers and responsible persons in the time and conditions established by the Tax Administration […] Sworn declaration must be understood as the determination of the tax obligation made by the taxpayers and responsible persons, under oath, in the means alluded to in the preceding paragraphs, with the effects and responsibilities determined by this Code' (Article 122 ibidem). Furthermore, these '…are presumed to be a faithful reflection of the truth and hold the declarant responsible for the tributes resulting from them, as well as for the accuracy of the other data contained in such declarations […]' (Article 130 ibid.). Under this guidance, it is verified that the tax norms do not make an express reference to whether such self-assessment documents are public or private. However, resorting to the literalness of the referred articles, and the definition of documents made in the Civil Procedure Code, those can be classified as private. In this order, the law uses a method of exclusion to qualify documents, understanding that private documents are those that '…do not have the condition of public', and that public documents are '…all those drafted or issued by public officials, according to the required forms and within the limit of their attributions and those qualified with that character by law. Also, those granted abroad with that character by virtue of treaties, international conventions, or international law shall have that nature. In the absence of written norm, such documents must comply with the requirements of the legal system where they were granted. // The document granted by the parties before a notary attests, not only to the existence of the agreement or provision for which it was granted, but even to the previous facts or legal acts related in it, in simply enunciative terms, provided that the enunciation is directly linked to the main agreement or provision. // Reproductions of documents shall have the evidentiary efficacy of these, if the authorizing official certifies the reason for being faithful copies of the originals. The same efficacy shall be had by simple copies, whose authenticity has not been timely challenged” (Article 45, paragraphs 2 and 3 of the Civil Procedure Code, Law No. 9342 of February 3, 2016). In this sense, a tax self-assessment is not issued by a public official within the framework of their attributions; on the contrary, even though it is carried out on a form provided by the State (physical or electronic), it is the taxpayer themselves or the other responsible persons who issue its materiality and content. Nor does the law, as stated above, classify it as such. Without failing to mention that, for obvious reasons, they are not documents granted by virtue of international instruments or created before a notary public. Therefore, the use of false data in a tax self-assessment will affect the content of a private document and, as such, this conduct is described in both Article 81 and Article 92 of the C.N.P.T. as means used to induce the Tax Administration into error in an attempt to obtain a benefit to the detriment of the public treasury. This becomes relevant, according to the factual framework that was accused and deemed proven, and the claims of the technical and material defense, regarding the existence of an apparent concurrence of norms between the tax illicit acts and the illicit act of use of a false document described in Article 372 of the Penal Code, for which [Nombre1] was convicted. The trial court deemed proven, among other more specific events, that: “5. By virtue of the foregoing, the accused [Nombre1], as representative and member of the Board of Directors of the aforementioned companies [Sociedad Anónima Edificio ADROFER, Consultoría ORS y Asociados Sociedad Anónima, and Inversiones BEYOF Sociedad Anónima], devised a criminal plan to benefit herself patrimonially through her companies by means of the lower payment of tributes, which she achieved by including false data in declarations before the Dirección General de Tributación of the Ministerio de Hacienda. To do this, she also usurped the identity of the victim [Nombre5], for which she had the collaboration and active participation of the late [Nombre6], who served during the period under investigation as an accounting assistant, a trusted person of Mrs. [Nombre1]. In this way, in the fiscal periods between 2009 and 2013, the accused [Nombre1] included false data in the official forms of the Dirección General de Tributación of the Ministerio de Hacienda, of the Annual Declaration of Clients, Suppliers, and Specific Expenses (Form D 151) and the Sworn Declaration of Income Tax (Form D 101) of the companies Inversiones BEYOF S.A., Edificio ADROFER S.A., and Consultoría ORS y Asociados S.A.

In those documents, the accused falsely stated that the victim [Nombre5] provided professional services to the indicated companies, by virtue of which fees were paid to her that were classified as company expenses and therefore reduced the taxable base of the taxes they were required to pay. Likewise, the accused [Nombre1], in the successive tax periods from 2009 to 2013, included false data in the official forms of the Dirección General de Tributación of the Ministerio de Hacienda, the Annual Declaration of Clients, Suppliers, and Specific Expenses (Declaración Anual de Clientes, Proveedores y Gastos Específicos, Form D151) and the Sworn Income Tax Declaration (Declaración Jurada del Impuesto Sobre la Renta, Form D101) of the victim [Nombre5], falsely stating that said victim provided professional services to the indicated companies, by virtue of which fees were paid to her" (cf. case file of the judgment, pages 105 and 106). As can be inferred, the use of false data regarding payments for professional services made by the companies represented by the defendant (which includes the insertion of said fact in her own income tax self-assessments, as well as the use of persons for the purpose of concealing her identity as a passive subject obligated for the tax), was executed by the defendant [Nombre1] as a means to achieve the proposed end, which was to induce the Tax Administration into error and to procure a patrimonial benefit by reducing the tax burden and the payment of the income tax. This was understood by the trial court, when it resolved: "The actions concur materially, in total false data were inserted in thirty-two documents, which determines their falsity, of which the defendant [Nombre1] had full knowledge, properly of the false content, as they corresponded to an artful machination to distort reality in order to benefit the companies and harm the Hacienda Pública, that is, deceptive acts were executed motivated by the spirit of unjust profit, with which the tax supervisory bodies were induced into error and caused harm to the Hacienda Pública, because finally, although a tax determination or assessment has not been carried out, the truth is that less tax was declared, which arises as a logical and inescapable consequence, since the actions led to a decrease in gross income and the consequent decrease in the tax burden. This generated impact is, in turn, a direct consequence of the error into which the recipient of the operations was induced, be it the institution that by law is responsible for the control, verification, and oversight of tax obligations, by making it believe that payments for professional services to Mrs. [Nombre5] had been verified" (cf. folio 131. Emphasis supplied). There is no doubt for this jurisdictional body that the defendant, in authentic forms, being those supplied by the Tax Administration (whether physical or electronic), by herself or through an intermediary, used false content in self-assessment declarations. Just as it qualified these as "deceptive acts" for resulting from an "artful machination to distort reality", which "induced the tax supervisory bodies into error", which finally "caused harm to the Hacienda Pública" and succeeded in benefiting the accused's companies. This, precisely, is the typical conduct described in Article 92 of the Código de Normas y Procedimientos Tributarios (before and after the reform carried out by Article 1 of Law N° 9069 of September 10, 2012, "Ley de Fortalecimiento de la Gestión Tributaria"), and in turn, as has been noted in this dissenting vote, that described in Article 81 of the same legal body. Therefore, it was essential to determine the economic quantum defrauded, in order to establish whether one was facing a tax infraction or a tax crime. This was recognized by the judging body itself when it pointed out: "Admittedly, the crime of 'Fraud against the Hacienda Pública', provided for in Article 92 of the Código de Normas y Procedimientos Tributarios, which is a Tax Defraudation, a criminal type of a special nature, was not charged, which was ruled out in the preparatory investigation by the Public Ministry, because this criminal type establishes within its objective elements that the amount of the defrauded quota must exceed five hundred base salaries. However, what has been indicated up to here makes it evident that, as material actions, it is not possible to distinguish between the use of a false document and the deception aimed at obtaining a patrimonial benefit, in this case there is a single action from a natural or physical point of view. Added to the above is not only the need for the ruling to be correctly supported for a better understanding of the behaviors carried out by the accused, particularly in a case such as the one before us, where the use of the false document is precisely the means used by the agent to perpetrate the deception and the consequent induction of the tax authorities into error" (cf. judgment document, pages 131 to 132. Emphasis is our own). From the above extract, the following conclusions reached by the trial court can be appreciated: i) That one is facing a tax illicit act for defraudation, which does not qualify as a crime because it does not exceed five hundred base salaries and this is an objective element of the criminal type; ii) The use of the false document (the mendacity in the content of the self-assessments) is the means used by the agent to perpetrate the deception and induction into error of the Tax Administration and; iii) There is a single action, since it is impossible to distinguish between the documentary falsehood and the deception carried out to procure the patrimonial benefit. Regarding the first of the affirmations, the trial court errs in considering that the amount of the fraud is an objective element of the criminal type. On the contrary, from the reading of Article 92 of the C.N.P.T. (before the reform made in 2012), it could be understood that the expression: "When the amount defrauded exceeds two hundred base salaries, whoever induces the Tax Administration into error shall be sanctioned with imprisonment of five to ten years [...]" referred to an objective condition of punishability, and not an objective element of the criminal type. This became clearer when, after the reform of said numeral through Law N° 9069, of September 10, 2012, which increased the amount from two hundred to five hundred base salaries, the legislator made an authentic interpretation, by stating that: "...For the purposes of the provisions of the preceding paragraph, it must be understood that: a) The amount of five hundred base salaries shall be considered an objective condition of punishability. [...]". In this way, regardless of whether one agrees, or not, that the defrauded economic quantum corresponds to an objective condition of punishability or is an objective element of the criminal type (the result), the truth is that Costa Rican law opted for the former, and according to this thesis, any defrauding conduct against the public treasury must be considered typical, unlawful, and culpable, even if it does not exceed the mentioned amount of five hundred base salaries. This is because, although the criminal relevance of a behavior depends on the wrongfulness of the conduct carried out, there may be criminal policy considerations that affect the advisability of punishing this type of conduct, as in this case, when the defrauding result against the public treasury does not exceed a specific amount. Thus, it is understood that: "Penality or punishability is, therefore, a way of collecting and elaborating a series of elements or presuppositions that the legislator, for utilitarian reasons, diverse in each case and alien to the proper purposes of Criminal Law, may require to justify or exclude the imposition of a penalty and which only have in common that they belong neither to typicality, nor to unlawfulness, nor to culpability, and their contingent character, that is, they are only required in some specific crimes. [...] The objective conditions of penality are circumstances that, without belonging to the injustice or to the culpability, condition the imposition of a penalty in some specific crime. By not belonging to the type either, it is not necessary for the author's intent to refer to them, it being indifferent whether they are known by him or not" (Muñoz Conde and García Arán. Derecho Penal. Parte General. 8th Edition. 2010. pages 399 to 401). In summary, the thesis of the a quo, that in the sub judice the typicality of the fraud against the public treasury, described in Article 92 of the C.N.P.T., was not configured, nor the criminal injustice, based on the absence of a defraudation greater than five hundred base salaries, violated the principle of legality and the authentic interpretation that the legislator gave to the economic quantum as an objective condition of punishability. This is transcendent, because this was the criterion used (the atypicality of the conduct of fraud against the public treasury) to dismiss the defense's thesis, which maintained that the lack of proof of harm to the public treasury greater than five hundred base salaries made the defendant's conduct—of using false data in the self-assessment declarations—prosecutable only as an administrative tax illicit act (Article 81 of the C.N.P.T.) and that the instrumental falsehoods were subsumed within the wrongfulness of the result by specialty. This under the implicit criterion in the ruling that the atypicality of the fraud against the public treasury left the instrumental falsehoods used as a means subsisting, which it proceeded to sanction for harming a different legal right (public faith). First, as was set forth supra, such a decision overlooked that the amount is an objective condition of punishability that did not affect the criminal injustice, nor the culpability of the author, and; second, although such a criterion is not entirely incorrect, since, in principle, instrumental falsehoods concerning public and authentic documents, or those equivalent (366, 365, and 370 of the Penal Code) could be in such a condition, because Article 92 of the C.N.P.T. would not exclude them pursuant to Article 21 of the Penal Code [In the same sense, "Derecho Penal. Parte Especial" (Zárate et al., 2018, p. 527)]; in the specific case, the species of documents that the accused was charged with using was different, since tax self-assessment declarations are private documents, so the mendacity used in them—in appearance—could at most configure a crime of use of a false document of a private nature, sanctioned by Articles 368 and 372 of the Penal Code, whose action wrongfulness is much less than that contained when public, authentic, or equivalent documents are forged or used. The misapplication of the mentioned substantive norms led the a quo to discard the use of Article 23 of the Penal Code (apparent concurrence of norms), despite the fact that, correctly, it had considered the documentary falsehood (concerning the use of false data in the content of the income tax self-assessment declarations) as the means used to perpetrate the deception and induction into error of the Tax Administration. It even recognized that one was facing a single action. Of course, the caveat must be made that this was not in a natural or physical sense as erroneously mentioned in the ruling, but in legal unity, between each of the falsehoods as a means to achieve the defraudation to the public treasury and the induction into error of the Tax Administration, which was consummated in each of the tax periods (2009, 2010, 2011, 2012, and 2013) with the harm to the public treasury caused by the defendant. This is because not only was the final factor proven—procuring a patrimonial benefit to the detriment of the public treasury—but also the normative factor, since the documentary falsehoods resulted in acts and actions tending to deceive the tax verification body; they occurred in a means-to-end relationship, because they succeeded in causing with them a result, which meant the harm caused to the public treasury, and the phenomenological aspects (space and time) showed proximity, inasmuch as, as the jurisdictional body maintained, one of the circumstances that allowed proof of the defendant's participation in all the facts was that the self-assessment declarations with false content (both from her companies and from [Nombre28]), in each of the tax periods, were presented with little time difference, at the authorized windows by the receiving body or through the electronic systems that the Tax Administration made available for that purpose. So that the use of the document containing the false information (tax self-assessment declaration) was consubstantial with the defrauding action in each of the tax periods, since this was the means provided by the State for the taxpayer or responsible persons to indicate the taxable event generating the tax obligation and provide the information necessary for determining the tax they were required to pay. Without omitting that it is in these self-assessment declarations where the legislator estimated could be presented: "The use of false, incomplete, or inaccurate data, from which a lesser tax or a lower balance payable or a higher balance in favor of the taxpayer or responsible person derives" (Article 81.1.b.i of the C.N.P.T.). This allows concluding, in turn, that one is facing units of action in each of the tax periods, between the use of the tax self-assessments containing mendacious information (use of a false private document) and the act itself of defrauding the public treasury. Coupled with the fact that, in this type of illicit act (Article 92 of the C.N.P.T.), such falsehoods result in being typical accompanying acts (or co-punished), whose punishment does not take place autonomously, unless the mentioned crime is not configured (whose severity is notoriously greater in relation to the penalty to be imposed, 5 to 10 years of imprisonment, compared to the other, 1 to 6 years). This is because, as has been noted in this dissenting vote, there are many ways in which conducts of fraud against the public treasury can develop, however, mendacity in tax self-assessment declarations is one of those typically described for doing so, as sanctioned in Article 81 mentioned so many times. So that, since Article 368 of the Penal Code provides that the falsification of a private document requires, as an essential element for its configuration, that "harm may result", and understanding that content falsehood (ideological) in a private document is indeed sanctioned in said norm (cf. Resolution N˚ 2020-1196 of this Tribunal de Apelación de Sentencia, at 3:30 p.m. on July 22, 2020 -González González, [Dirección1] and [Dirección2]), this must redirect to the fact that the potential for harm from the use of false data in tax self-assessment declarations (which turn out to be the false documents the defendant is attributed with using) is contained in the harm caused to the public treasury. That is, in this specific factual scenario, where the author limits herself to lacking truth in the narration of the facts that act as presuppositions to determine the taxable event and the tax burden that must be paid (ideological falsehood in a private document), the wrongfulness of the conduct would be encompassed in its entirety by Article 92 of the C.N.P.T. (criminal type of greater complexity due to the protected legal rights) and the absorption rule provided for in Article 23 of the Penal Code would operate. Otherwise, not resolving the concurrence of both crimes with a concurrence of laws would imply a duplication or typological superimposition when contemplating the harm and, definitively, a double sanction. This is because the injury to the legal right protected in the crime of defrauding the public treasury not only encompasses the patrimony, as maintained in the majority ruling, but, being multi-offensive, indirectly also covers the integrity of the economic order in the strict sense, which becomes necessary for correct economic planning of the nation and to be able to obtain the economic and social policy purposes that a social and democratic State governed by the Rule of Law is obliged to fulfill [In this sense: [Nombre4], . El delito Fiscal. 1982, p. 210 to 211]. Likewise, the Sala Constitucional affirms with respect to tax crimes, that in these: "In general terms, [it seeks] the protection of financial activity as a collection system and of fiscal policy for the application of resources according to the best criteria of justice and equity. In specific terms, it seeks to protect the 'oversight and collection' functions of the tax administration for collection purposes. What is protected are the oversight and verification functions, with the purpose of protecting the tax system as a fundamental source of resources for the development of state financial activity and, at the same time, to ensure the correct functioning of said system" (Resolution N˚ 2000-08191 at 3:03 p.m. on September 13, 2000). In the same sense, it has been indicated: "As for crimes, Article 92 CNPT, by regulating the crime of tax defraudation or 'induction into error,' establishes as one of its central elements the 'harm to the Hacienda Pública,' from which it is easy to infer that the protected legal right is the supra-individual patrimony represented by the Hacienda Pública. The subjection of the crime to a minimum defrauded amount (200 base salaries) also implicitly carries that what is protected is said patrimony. Now, also in this crime, due to the typical necessity of an artifice whose victim is the Tax Administration, we can visualize the protection of a duty of truthfulness towards it and, therefore, of the tax function" ([Nombre7], . El delito de Defraudación Tributaria. In: Ensayos sobre Derechos Penal Económico y De Empresa. Editorial Jurídica Continental. 2013. p. 562. Emphasis supplied). In summary, the protection of the truthfulness of the information supplied to the Tax Administration is also protected as a legal right, both in Article 81 and in Article 92 of the Código de Normas y Procedimientos Tributarios, in addition to the patrimony, so that it exercises the duty of oversight and collection of taxes (Erario Público). In accordance with this, and with the principle of offensiveness, the wrongfulness of the falsehood committed in the self-assessment is understood to be included in the crime of defrauding the public treasury (criterion of consumption), so that the application of this criminal type displaces that of falsehood in private documents (and its corresponding use). In the specific case, this is relevant from the fact that the trial court, although it could not specify its amount, did have proven the existence of harm to the public treasury, which amounted to "several million colones" (cf. case file of the judgment, page 218) that did not exceed the economic quantum of five hundred base salaries. In this way, facts that integrate the criminal injustice of the crime of Article 92 of the Código de Normas y Procedimientos Tributarios were taken as proven, and it was corroborated that the defendant [Nombre1] was culpable for them. However, a sanction could not be applied to her, since it was proven that the amount of the defraudation did not exceed five hundred base salaries (objective condition of punishability). In this sense, it is accepted that in the apparent concurrence of norms, the displaced criminal law does not completely disappear, and can have effects in certain cases, among these, when the primary crime is not punished, as could occur when a personal cause for exclusion of punishability is present. However, "[t]his principle has an exception in the case of the prior co-punished act" (cf. [Nombre11] González, Francisco. Derecho Penal, Parte General, San José, Costa Rica, Volume I, Editorial Jurídica Continental, 2008, p. 582). Note that, in the case of the absolute legal excuse for repairing the tax non-compliance, which turns out to be another condition of punishability, if the thesis that the falsehoods in the tax self-assessment declaration still subsist is applied, after the crime of fraud against the public treasury cannot be sanctioned (thesis of the majority vote), the taxpayer should be prosecuted for having lied (content falsehood) to the Tax Administration, when in reality, from a teleological interpretation, what matters to the State, for criminal policy criteria, is the regularization of the passive subject and the recovery of the public treasury, and not the application of criminal sanctions, considering that Criminal Law is the last ratio. Parallel to this, it must be emphasized that the criterion of consumption used also turns out to be a version of the principle of specialty and, therefore, of the principle of legality considered jointly with the principle of proportionality. Hence, it is not valid to apply the general criminal law (use of a false document described in Article 372 of the Penal Code), when Article 89 of the C.N.P.T. establishes that "...If there are special provisions in the tax laws, these prevail over the general ones." That is, the crime of fraud against the public treasury prevailed over the crime of using a false private document, and if a penalty could not be assigned to the former because an objective condition of punishability was present, that did not mean that the use of false data in the tax self-assessment declarations reassumed their autonomy, while the main conduct or that in which it was consummated remained typical, unlawful, and culpable (crime) but not subject to penalty for criminal policy matters. Above all in these cases, where the special norm establishes that, if the mentioned amount is not exceeded, the proper course was to continue with the administrative sanctioning procedure for the subsisting tax illicit act (administrative infraction), and not to resort to the general law, it is insisted, because there is an express provision on such an aspect. Without omitting, moreover, that with such a proceeding the protected legal right (the truthfulness of the information supplied to the Tax Administration) would not be left unprotected either, given that, first, it must be kept in mind that the non-application of a criminal sanction, through the transformation of criminal illicit acts into administrative illicit acts, does not imply, per se, a lesser deterrent or afflictive effectiveness of the sanctioning system and, second, it would always be possible to recover the defrauded patrimony and impose a legal consequence for the illicit act. Corollary, as emerges from the grounds of appeal of the technical and material defense, upon warning that this exclusionary presupposition of punishability was evident ab initio (the amount defrauded from the public treasury), the proper course was to analyze it beforehand to avoid reaching the formal declaration of culpability of the defendant, which now imposes on this judge the issuance of the acquittal of [Nombre1] at this instance, because, it is insisted, her conduct is not subject to penalty. Otherwise, sanctioning the conducts of using a false private document (for using false data in the self-assessment declarations) autonomously and separated from the fraud against the public treasury would infringe the prohibition of non bis in ídem (Article 42 of the Constitución Política, Article 14.7 of the International Covenant on Civil and Political Rights, Article 8.4 of the American Convention on Human Rights, and Article 66 of the C.N.P.T.), as said falsehoods could be sanctioned both criminally and administratively, as suggested by the majority vote which, although respected, contradicts the principle of legality and the theory of the concurrence of crimes. This does not prevent, as provided in this dissenting vote, that the Tax Administration "...[continues] the sanctioning file based on the facts considered as proven by the courts" (Article 66 of the C.N.P.T.), because in this case, the acquittal judgment has the same effects as a dismissal, thus complying with the supposition that allows the resumption of the administrative sanctioning procedure (Articles 81 and 90 ibid.) On the stepwise deliberation. In accordance with the provisions of Articles 361 and 465 of the Código Procesal Penal, this chamber of appeals must deliberate for the decision on the various aspects raised, reaching a decision, at least, by majority. Thus, implicitly, our procedural legislation recognizes what is known as stepwise deliberation, in the sense that if a judge dissents on a specific issue, they must continue intervening on the other aspects submitted to their knowledge, with the purpose of not disintegrating the tribunal. In this deliberation model, the dissenting judge's responsibility is safeguarded through their minority vote and, with it, their judicial independence is also guaranteed against the majority thesis. It is also verified that, facing the need to have the full integration of the tribunal to resolve the other aspects submitted to the plenary of the judging body, the dissenting judge participates in its determination, in order to give material content to the principles of access to justice and effective judicial protection (Article 41 of the Constitución Política). A different deliberation procedure, that is, when the dissenting judge withdraws from the deliberation as soon as they issue their vote, would cause the rest of the issues to be known only by two judges (in clear disintegration) and, as a risk, would bring the possibility that on some topic there is a contradiction that prevents reaching a majority of votes and causes the ineffectiveness of said process, with the consequent breach of the cited principles. This type of deliberation has been recognized by this Tribunal de Apelación de Sentencia, formerly known as the Tribunal de Casación Penal, in resolutions N˚ 2009-0399 at 9:45 a.m. on April 17, 2009, N˚ 2010-0193 at 11:15 a.m. on February 24, 2010, and N˚ 2010-0444 at 3:40 p.m. on April 13, 2010. Thus, based on Articles 10 of the Código Civil and 5 of the Ley Orgánica del Poder Judicial (which allow interpreting norms based on legislative and jurisprudential precedents), this will be the method that this chamber of appeals applies in this matter. Consequently, the minority vote now dictated saves my criterion with respect to the rest of the votes I issue unanimously with the rest of the tribunal, when the remaining grounds of appeal are examined, because I can no longer sustain in those the criterion issued here, without disintegrating the panel of judges and ignoring that this issue has already been decided by majority. This clarification is valid to avoid erroneous interpretations that may consider it contradictory that I dissent on this issue, yet continue voting with the rest of the tribunal on other topics that would evidently have a different outcome if the minority vote were applied (e.g., the application of Article 130 of the C.N.P.T. regarding the rectification of tax self-assessment declarations as an absolute legal excuse for the crime of fraud against the public treasury, which has no place if the proven criminal injustice is considered to be the use of a false document, as a general criminal figure, since definitively, in that context, it would have no relevance whatsoever that the accused regularizes their situation before the Tax Administration, beyond the acknowledgment of repentance in their actions).

XVI.- Note from Judge Araya Vega. In the thirtieth claim of the defense attorneys and the first ground of their appeal of the defendant [Nombre1], the evidentiary assessment carried out by the a-quo of the recording of a telephone call made by the victim to the accused is objected to. In a collegial manner, it was considered that the recording was unlawful and must be excluded, as what was relevant was determining the recipient of the information and their consent (cf. in the same sense, CSJ, S3, v. 2009-717). Now, in the specific case, although the recorded communication was unlawful – and therefore must be excluded from the body of evidence – the truth of the matter is that, based on the risk theory, the conversation held between the accused and the victim can indeed be subject to evaluative control, but through the victim's account, not the recording. No impact is generated on the fundamental right to privacy thereby, as long as the acknowledgments made by the defendant to the victim are assessable based on her testimony (that is, insofar as the account was credible based on the rational parameters for weighing testimony such as subjective credibility, verisimilitude, external corroborability, and persistence in the incrimination).

That is, even though the recording was unlawful and warrants its evidentiary exclusion, through the injured party's account its weighing is viable, since the defendant [Name1] assumed the risk by communicating with the victim and confessing the unlawful act to her and proposing forms of correction, so that what happened would not become publicly known given her high office as acting Ombudsperson. Hence, what concerns the victim's account, regarding the content of said communication, is valid and constitutionally admissible.

THEREFORE:

The appeals filed by the defenders of [Name1] are partially granted; by her, in her personal capacity and by the Procuraduría General de la República. The thirty-fourth and thirty-fifth grounds of the appeal filed by the defendant's defense are upheld; the first, the sixth, and, partially, the fourth ground raised by her personally; likewise, the sole ground of the appeal by the body that appeared as the State's attorney. Consequently: i) the invalidity of the recording made by [Name5] of the conversation he held with the defendant [Name1] on July 3, 2014, is ordered; ii) the sentence imposed for all the convicted acts is annulled; iii) the conviction is annulled in relation to declarations D-101 numbers [Identification8] for the year two thousand ten, of the company Inversiones Beyof Sociedad Anónima; [Identification10] for the year two thousand eleven, of the company Edificio Adrofer Sociedad Anónima and [Identification11] for the year two thousand eleven, of the company Consultoría ORS y Asociados Sociedad Anónima; iv) the acquittal for social damage (daño social) is annulled. Remand is ordered to the trial court so that, with a new panel, it may rule according to law on the annulled matters. Judge González González dissents and upholds the first ground of the appeal by the defendant's defense and the third ground of the challenge filed by her personally. Judge Araya Vega notes his concurrence. NOTIFY.

Giovanni Mena Artavia Rafael Mayid González González Alfredo Araya Vega Judges of Criminal Sentence Appeals Defendant: [Name1] Aggrieved party: Public Faith (La fe pública) and another Crime: Embezzlement (Peculado) and others DDURANC For these purposes, “inaccuracy” shall be understood as: / i. The use of false, incomplete, or inaccurate data, from which a lower tax or a lower balance to pay or a higher balance in favor of the taxpayer or responsible party is derived […] 3. Applicable penalties. The material infractions described in subparagraphs a), b), c), and d) of paragraph 1 of this article shall be sanctioned with a monetary fine of fifty percent (50%) on the basis of the corresponding penalty […]”. The accused’s defense has maintained that the second article constitutes a special rule with respect to the first, so that, by the relationship of specialty, it must prevail over the use of a false document. As a precondition for evaluating the thesis raised by the technical and material defense, its scope of possibility must be delimited. [Name1] was convicted for preparing and presenting a series of false self-assessment tax declarations (declaraciones autoliquidaciones), in her capacity as representative of the companies Edificio Adrofer Sociedad Anónima, Consultoría ORS y Asociados Sociedad Anónima, and Inversiones Beyof Sociedad Anónima; but also for preparing others in the name of [Name5]. Regarding these latter declarations, the defensive thesis would be meaningless because subsection b) of Article 81 of the “Ley de Normas y Procedimientos Tributarios” is clearly understood within the context of making self-assessment declarations (autoliquidaciones) that the subject formulates within the framework of their tax duties and not when they engage in openly unlawful conduct, by deceiving the tax authority by preparing fictitious self-assessment declarations (autoliquidaciones) in someone else’s name. On the other hand, the thesis of “the existence of the error” maintained by the defense loses meaning when amended tax declarations (liquidaciones rectificativas) are made, precisely because these seek to correct a previous error. Apparently, the accused understood it this way, since she limited her appeal to those self-assessment declarations (declaraciones autoliquidaciones) that did not correspond to [Name5] nor were they amended. These are the following: D-151 number [Identificacion1], D-151 number CED2, D-101 number CED3, D-101 number CED4, D-151 number CED5, D-151 number CED6, D-101 number CED7, D-101 number CED8, D-101 number CED9, D-101 number CED10, D-101 number CED11, D-101 number CED12, D-151 number CED13, D-101 number CED14, D-101 number CED15, D-151 number CED16, D-101 number CED17, D-151 number CED18, and D-151 number CED19. It is with respect to such declarations that we must answer whether subsection b) of Article 81 of the “Ley de Normas y Procedimientos Tributarios” applies, to the exclusion of section 372 of the Penal Code. This Chamber’s answer is negative, for the reasons set forth below. Note, first of all, that the regulatory provisions under examination protect completely different legal interests. The use of a false document is located in Title XVI of the Penal Code, referring to crimes against public faith. Regarding this legal interest, the doctrine states: “In a general sense, it can be said that the crimes included in Title XII of our Penal Code [referring to the Argentine one] constitute attacks on public faith, by making signs representing objects or documents that account for past events appear as authentic and revealing the truth, when they are not authentic or lie about what is represented. / But all the objects of these crimes are marked by a particular characteristic that the State has conferred upon them through its legal function: either they have been imposed as instruments of faith valid erga omnes, due to the forms of their representation or the person who intervenes in their formation (as occurs with currency and public instruments), or they have been endowed with a certain crediting prestige regarding their origin and content so that they can effectively fulfill the function that the law itself assigns to them in transactional life (as in negotiable instruments and, in general, in so-called private instruments). But if the former are embodied in what we can properly indicate as the sphere of public faith, the latter participate in it by virtue of the effects that the law grants them in the legal transactions of individuals, even if they have no consequences for those who are strangers to said transactions” ([Name8], . Derecho Penal, Parte Especial, t. 2, 6th ed., Buenos Aires, Editorial Astrea, 1998, p. 359). Then, setting aside the doctrinal discussion that the same author mentions, about whether what is actually protected in all these criminal types is public faith or “the general trust in the authenticity and veracity of objects as an indispensable means for them to duly fulfill their legal purposes” (op. cit., pp. 359 and 360), the truth is that it can be concluded, with the cited author, that: “In the task of specifying the concept, it can be said that the legal interest of public faith is attacked or endangered when the objectivity introduced by the agent's conduct into the object is capable of arousing in anyone the confidence it deserves, by meeting the forms prescribed by law for it to be accepted as representative of the act it expresses and, therefore, as accreditation (proof) of it” (loc. cit. p. 362). In a similar sense, and citing [Name9], [Name10] points out: “[Name9] asked himself: ‘What is that legal interest in falsehoods? Public faith, it is customary to say’. And he explains the question in the following manner, which is more than important for the purpose of introducing us to the subject: ‘Public faith, means of proof, interests affected or that may be affected by those means of proof, are stops along the same path: that of the protection of interests; but by punishing falsehoods, a system of preservation is adopted. The harm to interests, already protected by other rules, is not necessary; the danger is sufficient. The fight against falsehoods has a preventive character: it is a kind of social disinfection. So it is not necessary to cause harm to an individual (not even in the case of private documents, for which our Code is content with the intent to cause harm); nor is the simple alteration of the truth sufficient. Only when the false document is a danger, when it is used or usable as evidence to engender a disturbance in legal traffic, will the legal objectivity of the infraction have been reached […]’” (Donna, Edgardo Alberto. Derecho Penal, parte especial, t. IV, Buenos Aires, Rubinzal Culzoni Editores, 2004, p. 126). The truth is that, whether one speaks of public faith, of trust in the authenticity and veracity of the objects used in legal transactions, or of the defense of legal traffic, what underlies this is the value placed on the fact that people can have security when they use certain legal instruments necessary in social life—at least, as it is conceived today. That security is undermined by anyone who falsifies, adulterates, deforms, denatures, misrepresents, distorts, or simulates, in their material or ideological content, those instruments. In this Chamber’s judgment, understanding the above is of utmost importance, since the technical and material defense’s appeal argument asserts that, in the case of the self-assessment declarations (declaraciones autoliquidaciones) under examination, for some reason, the legislator decided to make a parenthesis in the protection of the legal interest of public faith and simply left it unprotected. By proposing the thesis of apparent concurrence (concurso aparente), it is affirmed that this renunciation of protection, derived from the application of the principle of specialty, was made in favor of an article that, in reality, was not designed to safeguard such a legal interest, but rather a completely different one: the public treasury or public finances (hacienda pública). Subsection b) of Article 81 of the “Código de Normas y Procedimientos Tributarios” allows punishing conduct that does not even qualify as “fraudulent”; it can even involve simple carelessness. Certainly, it also punishes the intentional inclusion of falsehoods in the document, but this is not indispensable because it is sufficient for the declarant to incur inaccuracies for the fine provided for in the same article to be applied. See that the established penalty is designed exclusively for the tax authority to recover the amounts of which it was deprived; the purpose of going beyond the recovery of what is owed and, eventually, achieving the correct adjustment of the declarant's subsequent conduct is not apparent in the rule in question. The fact that the rules in question protect distinct legal interests is a clear indicator that there cannot be an apparent concurrence (concurso aparente) relationship between them. As the doctrine points out, “For the purpose of establishing when several violated provisions are mutually exclusive or not, that is, for the purpose of delimiting the apparent concurrence of laws (concurso aparente de leyes) from the ideal concurrence (concurso ideal) and the material (real) concurrence (concurso material (real)), there are two complementary criteria. On the one hand, the criterion of the legal interest is used (when several concurring laws protect the same legal interest, it is called apparent concurrence of norms (concurso aparente de normas), if both violated laws protect different legal interests, it is called ideal concurrence (concurso ideal) or real concurrence of crimes (concurso real de delitos)) and, on the other hand, the second criterion used is the technical relationship of the types with each other. This second criterion is the application of the principles of specialty, subsidiarity, and consumption, which decides whether the criminal types confirm their independence or if, on the contrary, one displaces the others” ([Name11], Francisco. Derecho penal, parte general, t. III. San José, [Name12], Editorial Jurídica Continental, 2010, pp. 582 and 583, our emphasis). Certainly, the same author warns us that the first criterion could have exceptions; however, in them, one can think of cases referring to the principle of consumption and not to that of specialty. For example, in the situations cited by [Name13] when explaining the accompanying act, such as homicide that encompasses (“consumes”) the damage caused to the victim's clothing; the theft of a firearm with respect to its illegal carrying when consummated; or violent sexual act and abrasions ([Name13], . Derecho penal, parte general. 4th ed., Colombia, Comlibros, 2009, pp. 1008 and 1009). Those cases, which could admit dispute regarding their categorization, are among the few examples in which the violation of different legal interests is resolved through the rules of apparent concurrence (concurso aparente), and they refer to the principle of consumption. But when it comes to the principle of specialty, it only makes sense for the legislator to move within the same legal interest, whether to increase its rigor or to decrease it, in consideration of certain specializing characteristics that they value, not to leave it unprotected. That lack of protection would ultimately be the result if the appellants’ thesis were accepted. Finally, if it were argued that in Article 81 of the “Código de Normas y Procedimientos Tributarios,” the legislator did decide to punish the transgression of public faith but, for some reason, with lesser severity, the reasoning would lead us to a logical problem. If it is clear, as the defenders expressly accept in their appeal, that this article protects the public treasury (hacienda pública), the defense's thesis would lead to having to accept that the legislator provided a greater penalty for someone who only affects public faith (prison, according to section 372 of the Penal Code), than for someone who harms both that legal interest and the public treasury (hacienda pública) (pursuant to Article 81 of the “Código de Normas y Procedimientos Tributarios”). This ultimately demonstrates, in this Chamber’s judgment, that there is no specialty relationship between the rules under examination that leads to an apparent concurrence of norms (concurso aparente de normas). This appellate court (tribunal de apelación) considers that we are simply faced with one of those cases in which the legal system confronts the wrongfulness of conduct at different levels, according to the breadth of its consequences. Thus, the worker who insults their employer or intentionally damages their property must not only face the accusation for the respective crime but may also be subject to legitimate dismissal, according to labor law (Article 81 of the Labor Code); the spouse who attempts against the life of their partner or prostitutes them must not only face criminal justice but also incurs grounds for divorce (Article 48 of the Family Code); the commission of the crime of bribery may also result in the dissolution of the company in whose name the perpetrator acts (Article 11 of the law “Responsabilidad de las Personas Jurídicas sobre Cohechos Domésticos, Soborno Transnacional y otros Delitos”); whoever causes the death of the testator of an inheritance also assumes the civil consequences of unworthiness (Article 523 of the Civil Code), etc. If the damage extends to several areas of regulated social life, the agent must face the response on several levels. That is what occurs in this case: conduct whose repercussions in two different areas are confronted by the legal system in two forms that are not mutually exclusive; that is, the accused’s conduct has criminal consequences and, simultaneously, administrative-tax consequences. Certainly, Article 66 of the “Código de Normas y Procedimientos Tributarios” indicates that if the judicial action “[...] results in the conviction of the subject, the infractions that may be considered preparatory acts of the crime, whether actions or omissions included in the criminal type, shall be deemed subsumed into the crime." However, that section regulates the non bis in idem principle between tax crimes and administrative infractions. This cannot apply here because the use of a false document is not a tax crime. Moreover, the Constitutional Chamber (Sala Constitucional) itself has accepted the possibility of concurrence of tax crimes and an administrative sanction such as the closing of businesses previously provided for in Article 20 of the “Ley del Impuesto General sobre las Ventas,” indicating, “Notwithstanding, in the hypothesis of applying the business closure, the rule of cited Article 20 implicitly provided a sanction for the ideal concurrence (concurso ideal) equivalent to the sum of the closure sanction and the corresponding criminal sanction. The thesis is considered reasonable that, to the extent that this accumulation can be justified as an integration of sanctions for the weighing of a sanction proportional to the gravity of the offense (objective gravity of the illicit act); or as an integration of principal and accessory sanction, to protect distinct legal interests, it would not be unconstitutional, unless it exceeds the proportion of the objective gravity of the illicit act” (Voto 2000-08191, of 3:03 p.m. on September 13, 2000). Thus, in the face of the defenders’ assertion that tax legislation includes, as an administrative infraction, the use of false data in declarations from which lower taxes are derived, this court expresses its full agreement; what is not acceptable is to claim that the responsibility imposed by the legal system on such conduct ends there. Much less can one agree when it is affirmed—incidentally, without accompanying what is said with any argumentation—that the punished conduct did not affect public faith. The accredited action of inserting false facts into a document and using it is classified by the Penal Code as a crime that affects that legal interest. Moreover, the defense's own argument of apparent concurrence (concurso aparente), to be coherent, must start from the premise that the conduct can indeed be classified as use of a false document, even if it is considered to fit better with the administrative infraction. Thus, by claiming that what the accused [Name1] did does not harm public faith, the defenders undermine their own argument. In the judgment of this appellate court (tribunal de apelación), the a quo errs in sustaining the inverse thesis to the defense, implying that the accused’s conduct can only be framed within the crime of use of a false document, excluding the administrative infraction. For all that has been said so far, both consequences (criminal and administrative) are compatible. In any case, that argumentation by the trial court does not detract from the accuracy of its conclusion in what matters here, namely that the criminal conduct existed and is punishable. Therefore, the criticisms that the appellant accused directs at the judgment, although accurate on certain points, do not manage to undermine the conclusion reached by the court, given that in those reasonings, the adjudicating body sought to rule out the applicability of Article 81 of the “Código de Normas y Procedimientos Tributarios,” which, as stated, was neither correct nor necessary to declare the criminal liability of the defendant. The citation of the tax law expert Adrián [Name7] Navas refers to what happens when a declaration is filed that rectifies what was previously declared. In the lawyer’s opinion, the amended declaration causes the previous one to cease to exist, and even in the computer system, it is erased (judgment, p. 83). The trial court seeks to show that the situation is not among the scenarios on which Dr. [Name7]’s opinion fell. However, this was unnecessary because what this expert said is only relevant in the sphere of his expertise: in tax matters. His opinion may be correct or not, but that is a matter related to the administrative consequences of [Name1]’s conduct, outside the criminal sphere. For this reason, the court did not need to direct its argumentation in that sense. The lucubrations on abuse of rights were also aimed at ruling out the application of the administrative consequence to the actions taken; in the same sense, the entire exposition regarding tax law and the civic duty to assume the burdens of the profit-making activity carried out was directed. All of this led the court to maintain that the intentional falsehood verified in the declarations could not be included in the regulation of Article 81 of the “Código de Normas y Procedimientos Tributarios.” However, that is not correct. As seen in the citation made at the beginning of this recital, said section refers that the inaccuracy it regulates and punishes contemplates “The use of false, incomplete, or inaccurate data, from which a lower tax or a lower balance to pay or a higher balance in favor of the taxpayer or responsible party is derived.” And although the terms “incomplete” and “inaccurate” usually evoke situations of carelessness; “falsehood” is more related to conscious or intentional action. In any case, as can be deduced from what has been said throughout this recital, this Chamber's criterion is that it was idle for the trial court to engage in disproving the application of tax legislation, when the important thing is that the latter does not exclude criminal law. The appellant accused maintains that the annulment of the conviction must lead to the annulment of the three-year penalty for each crime, since the court repeatedly based it on the fact that thirty-two crimes of use of a false document were committed. Not accepting her challenge on that point implies that the consequence she sought regarding the punishment is also not appropriate, without prejudice to what will be said later when the specific argumentation raised regarding the imposed penalties is assessed. Due to the foregoing, the rejection of the reproaches.

Considerations on an alternative classification of the facts. Although the appellants did not raise it as part of their argumentation, the court assessed, in the deliberation, an alternative thesis. This would maintain that the accused’s conduct actually constituted several crimes of fraud against the public treasury, according to the provisions of Article 92 of the “Código de Normas y Procedimientos Tributarios.” These would be typical, unlawful, and culpable actions, but not criminally sanctionable, due to the absence of an objective condition of punishability (the minimum amount of five hundred base salaries in the defraudation). Each crime of fraud against the public treasury would have the virtue of excluding, by consumption/specialty—the first principle being a version of the second—any crime of use of a false document that could have been configured; which would only occur because the falsified documents are of a private and not public nature. What is not excluded is the possibility that the underlying conduct (a generic tax illicit act, which may be a crime or an administrative infraction) could be punished administratively. Thus, in an “oblique” manner, one would have to end up agreeing with the challengers, for reasons different from those put forward in their appeals. The majority of this Chamber dismisses that reading of the implicated rules, for the reasons set forth below.

A.- On the objective condition of punishability. The key to that explanation lies in the wording of Article 92 of the “Código de Normas y Procedimientos Tributarios,” which in what is of interest states: “Whoever, by action or omission, defrauds the Public Treasury with the purpose of obtaining, for themselves or for a third party, a patrimonial benefit, evading the payment of taxes, withheld amounts or amounts that should have been withheld, or payments on account of remunerations in kind or unduly obtaining refunds or enjoying tax benefits in the same manner, provided that the amount of the defrauded quota, the un-deposited amount of the withholdings or payments on account or the unduly obtained or enjoyed refunds or tax benefits exceeds five hundred base salaries, shall be punished with a prison sentence of five to ten years. / For the purposes of the provisions of the preceding paragraph, it must be understood that: / a) The amount of five hundred base salaries shall be considered an objective condition of punishability […]”. That wording is the product of the reform carried out through Article 1 of Law Number 9069 of September 10, 2012, “Ley de Fortalecimiento de la Gestión Tributaria.” It is from that reform onwards that it is established that the referred amount shall be considered an objective condition of punishability; the previous wording did not contain that specification. It is therefore necessary to examine what this legal category mentioned by the rule consists of. It is understood as such the “Condition of an objective nature that presupposes the occurrence of an uncertain and, according to some, future event, required by law in some crimes in addition to the typical conduct and which is independent of the author's action” (Diccionario Panhispánico de español jurídico, retrieved from https://dpej.rae.es/lema/condici%C3%B3n-objetiva-de-punibilidad#:~:text=Pen.,de%20la%20acci%C3%B3n%20del%20autor). Since said condition escapes the author's control, it is not—nor does it make sense to expect it to be—encompassed by their intent or recklessness (as the case may be). Examples cited include certain international reciprocity requirements, which condition the punishability of crimes committed against Heads of State and internationally protected persons in some countries; also the eventuality of prevailing prosecutions, in certain crimes committed using mechanical means or broadcast media (see source just cited); the commission of an unlawful act, in the case of total intoxication; death or serious injuries in a brawl; suspension of payments and opening of insolvency proceedings, in the case of punishable bankruptcies (Roxin, Claus. Derecho penal, parte general, t. I, 2nd ed., Civitas, 1997, pp. 970 and 971); or the amount of smuggling in certain customs crimes ([Name14], . Condiciones objetivas de punibilidad, in Revista Jurídica Cajamarca, retrieved from https://www.derechoycambiosocial.com/RJC/Revista14/punibilidad.htm, section 3). The controversial characteristic that these conditions have is that, due to their uncertain and objective nature, they should not be encompassed by the subjective element of the type, despite being decisive for the sanction. Some authors argue that they respect the principle of culpability and do not fall into strict liability, because they simply restrict the field of culpability; others, on the other hand, point out that if the absence of such conditions leads to impunity, then their presence grounds the punishment, which is questionable when dealing with an element that is not governed by the subject's fraudulent conduct (on the positions in this regard, see the last two cited works). Regardless of the position taken on this matter, the truth is that the foregoing allows us to understand what was intended with the reform that conferred upon the amount of the fraud the character of an objective condition of punishability.

It was sought, as occurs in other legislations, to remove the amount of the fraud from the domain of intent (dolo), rendering fruitless any defense that sought to allege a mistake regarding it. As seen above, the wording of Article 92 encompasses very diverse forms of commission, some of which may involve uncertain economic results. In such cases, the inclusion of the condition prevents the perpetrator from successfully alleging that they did not know that the defrauded amount exceeded five hundred base salaries; their conduct is intentional (dolosa) even if they had not considered that possibility, because the objective condition of punishability goes beyond the wrongfulness (injusto) and, consequently, need not be covered by the knowledge and will to commit the act. The division between administrative infractions and crimes already existed before the reform and continued to exist after it; the only thing provided by the inclusion of this institute is what has just been indicated. Therefore, it is not acceptable, for the majority of the court, to understand that the legislator intended to generate, since the reform, a kind of limbo for certain conducts that are neither administrative infractions nor punishable crimes, but a special category of crimes without criminal sanction or administrative consequence. It is worth pausing on this last point, since the proposed alternative interpretation, carried to its ultimate consequences, should lead to the practical effect of impunity for all intentional fraudulent conduct whose amount is less than five hundred base salaries. Article 66 of the Código de Normas y Procedimientos Tributarios provides: </span><span style="font-family:Arial; font-style:italic">“The verification of illicit tax acts must respect the principle of 'non bis in idem,' in accordance with the following rules: / a) In cases where the infractions may constitute tax crimes, the Tax Administration shall transfer the matter to the competent jurisdiction, according to Article 89, and shall refrain from following the sanctioning procedure until the judicial authority issues a final judgment. The sanction by the judicial authority shall exclude the imposition of an administrative sanction for the same acts. / </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">If the existence of the crime has not been deemed established, the Tax Administration shall continue the sanctioning file based on the facts considered by the courts as proven</span><span style="font-family:Arial; font-style:italic"> […]” </span><span style="font-family:Arial">(underlining supplied)</span><span style="font-family:Arial; font-style:italic">.</span><span style="font-family:Arial"> A </span><span style="font-family:Arial; font-style:italic">contrario sensu, </span><span style="font-family:Arial">if the conduct in question is deemed criminal, how can the referral of the matter to the Tax Administration for it to sanction the tax infraction be justified, when it does not exceed five hundred base salaries? Article 90 of the same code provides: </span><span style="font-family:Arial; font-style:italic">“[…] In the judgment, the criminal judge shall decide on the application of the criminal tax sanctions to the accused. </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">In the event of a conviction</span><span style="font-family:Arial; font-style:italic">, the judge shall determine the amount of the principal and accessory tax obligations, surcharges, and interest, directly linked to the facts constituting criminal tax sanctions, as well as the respective costs” </span><span style="font-family:Arial">(our underlining)</span><span style="font-family:Arial; font-style:italic">. </span><span style="font-family:Arial">How could the unpaid amounts be collected if there was no conviction? Coherence would impose total impunity for such conducts; in our view, the conclusion of the alternative thesis, which suggests the possibility of collection based on Article 81 of the code under discussion, does not consider these norms and enters into contradiction. This is particularly paradoxical, if one takes into account that the conducts that can be accommodated under the alternative explanation are only intentional infractions. The behaviors regulated in Article 81 of the Código de Normas y Procedimientos Tributarios do not necessarily have to be intentional (dolosos); in this, the court's criterion is unanimous. Contemplated therein are a series of actions that can be classified, even, as merely careless. The law decided to dispense with the subjective factor and punished everything from malicious conduct to simple error. But only those more serious actions, the intentional ones, have the possibility of ultimately constituting crimes (because there is no negligent fraud against the public treasury) and, consequently, only they can be covered by the alternative theory criticized here. These, as stated, would remain without administrative sanction, but the careless actions could be punished, which makes no sense: the most reprehensible conduct is forgiven, and what is socially less offensive is punished. All of the foregoing leads to reaffirming the meaning of what was provided by the legislator in the case of the objective condition of punishability of Article 92 of the Código de Normas y Procedimientos Tributarios: by virtue thereof, it is not appropriate to allege error or lack of knowledge regarding the defrauded amount, even if in the specific case there may be some degree of uncertainty about it, since the same constitutes an objective condition of punishability, which need not be covered by intent (dolo). In the case under examination, that uncertainty does not even exist, because the perpetrator always knew how much she was failing to contribute to the State coffers. Hence, it makes no sense to speak of an objective condition of punishability in this specific matter. To the foregoing is added a particular problem of the case: the classification of the fraud amount as an objective condition of punishability was born, as has been indicated, through a legal reform of September tenth, two thousand twelve. But the judged conducts include facts from two thousand nine to two thousand thirteen. Attempts have been made to justify its retroactive application by pointing out that the change was an authentic interpretation of the already existing norm; however, there is no basis whatsoever for such an assertion. In reality, it was a comprehensive reform, which changed many articles of the referred code, completely varying the wording of Article 92. Furthermore, it was not a modification more favorable to the accused, insofar as it excludes the need for the subjective element to imply the knowledge and will to defraud a specific sum; rather, it concerns a modification that aggravated the situation of the potential perpetrator of that crime. Consequently, it is not a legal reform that can be applied retroactively. Thus, the thesis would not even be applicable to the majority of the documents for which the defendant was punished. </span><span style="font-family:Arial; text-decoration:underline">B.- On the apparent concurrence of norms (concurso aparente de normas)</span><span style="font-family:Arial">.</span><span style="font-family:Arial; font-weight:bold"> </span><span style="font-family:Arial">On the other hand, even if it were accepted that what the accused committed were crimes of fraud against the public treasury, it cannot be maintained that between this type of crime and the crime of using a false document there exists a relationship of speciality (relación de especialidad), by virtue of which the latter is absorbed by the former. In the first place, due to the difference in legal interests (bienes jurídicos) involved in each case, as explained when comparing section 372 of the Penal Code with Article 81 of the Ley de Normas y Procedimientos Tributarios. Second, because many of the ways of defrauding the treasury do not even require the preparation of a document (think of omission, expressly contemplated in the criminal definition, where nothing is falsified or presented). From no point of view can fraud against the public treasury be classified as a species of the crime of using a false document. Perhaps that is why the thesis being commented on must resort to the relationship of consumption (relación de consunción) and not the speciality alleged by the appellants, pointing out that, ultimately, this is a version of a relationship of speciality. But in reality, that is not so; one and the other are forms of apparent concurrence that, although sometimes treated confusingly by doctrine, cannot be equated because of that. The issue of concurrence becomes even more confusing if it is affirmed that absorption does not occur when a public document is involved, but does when it is a private one. Section 372 of the Penal Code punishes the use of a false document of any nature, public or private. If so, it remains unexplained: what norm or principle would allow the exclusion of the application of the same crime in some cases and not in others? How is it explained, legally, that the same article can, sometimes yes and sometimes no, be subject to a relationship of consumption? For the foregoing reasons, the majority rejects that interpretation of the posed situation. Instead of that, we consider correct the implicit interpretation that underlies the judgment, and even in the defense's own appeals, according to which the amount of five hundred base salaries (together with the other objective elements that are not the object of analysis here) determines whether one is dealing with a crime or an administrative infraction, without there being a diffuse, intermediate situation between the two.

**IV.-** The **second claim** of the defenders of the defendant is incorrect legal reasoning. In proven facts 1 and 2 of the two thousand nine period, the court concluded that the accused prepared and filed the D 151 declaration number [Identificacion1], in the name of Edificio Adrofer Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. Report 2015-1402-AED, in its results 55 and 61 (pp. 43 and 47), demonstrates that the handwriting features of the declaration do not correspond with those of the defendant. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. Additionally, this declaration does not appear in the documentary evidence, but rather only a detail of third-party declarations, without the defendant's signature. The sheet on which D-151 declarations are signed does not contain the provider detail; rather, this is in an annex. Nor is there proof that the defendant filed this declaration at the banking entity. As a **third objection**, incorrect legal reasoning is claimed. In proven facts 3 and 4 of the two thousand nine period, the court concluded that the accused prepared and filed the D 151 declaration number [Identificacion2], in the name of Consultoría ORS y Asociados Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. Report 2015-1402-AED, in its results 64 and 70 (pp. 49 and 52), demonstrates that the handwriting features of the declaration do not correspond with those of the defendant. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. The sheet on which D-151 declarations are signed does not contain the provider detail; rather, this is in an annex. Nor is there proof that the defendant filed this declaration at the banking entity. As a **fourth objection**, incorrect legal reasoning is alleged. In proven facts 5 and 6 of the two thousand nine period, the court concluded that the accused prepared and filed the D 151 declaration number [Identificacion19], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. Report 2015-1402-AED, in its result 36 (p. 35), demonstrates that the handwriting features of the declaration do not correspond with those of the defendant. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for Mrs. [Nombre5]. Nor is there proof that the defendant filed this declaration at the banking entity. As a **fifth objection**, incorrect legal reasoning is claimed. In proven fact 7 of the two thousand nine period, the court concluded that the accused prepared the D 101 declaration number [Identificacion3], in the name of Edificio Adrofer Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. Report 2015-1402-AED, in its result 26 (p. 30), demonstrates that the handwriting features of the declaration do not correspond with those of the defendant. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. Nor is there proof that the defendant filed this declaration at the banking entity. As a **sixth ground**, incorrect legal reasoning is claimed. In proven fact 8 of the two thousand nine period, the court concluded that the accused prepared the D 101 declaration number [Identificacion4], in the name of Consultoría ORS y Asociados Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared said declaration. Report 2015-1402-AED, in its result 32 (p. 34), demonstrates that the handwriting features of the declaration do not correspond with those of the defendant. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. As a **seventh claim**, incorrect legal reasoning is argued. In proven fact 9 of the two thousand nine period, the court concluded that the accused filed the D 101 declarations number [Identificacion20], in the name of [Nombre5]; D 101 number [Identificacion3] in the name of Edificio Adrofer Sociedad Anónima; and D 101 number [Identificacion4] in the name of Consultoría ORS y Asociados Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused filed said declarations. Nor is there proof that the defendant filed this declaration at the banking entity. As an **eighth objection**, incorrect legal reasoning is alleged. In proven facts 1 and 2 of the two thousand ten period, the court concluded that the accused prepared the D 151 declaration number [Identificacion5], in the name of Edificio Adrofer Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. Additionally, this declaration does not appear in the documentary evidence, but rather a detail of third-party declarations, without the defendant's signature. The sheet on which D 151 declarations are signed does not contain the provider detail; rather, this is in an annex. Likewise, it was proven that this declaration was filed by Mrs. [Nombre6], through the user account of her husband [Nombre15]. As a **ninth objection**, incorrect legal reasoning is invoked. In proven facts 3 and 4 of the two thousand ten period, the court concluded that the accused prepared and filed the D 151 declaration number 15113003880516, in the name of Consultoría ORS Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. The sheet on which D 151 declarations are signed does not contain the provider detail; rather, this is in an annex. Likewise, it was held as proven that the declaration was filed by [Nombre6] through the user account of her husband [Nombre15]. As a **tenth objection**, incorrect legal reasoning is alleged. In proven facts 5 and 6 of the two thousand ten period, the court concluded that the accused prepared and filed the D 151 declaration number [Identificacion21], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for [Nombre5]. Likewise, it was held as proven that this declaration was filed by [Nombre6] through the user account of her husband [Nombre15]. As an **eleventh ground**, incorrect legal reasoning is alleged. In proven fact 7 of the two thousand ten period, the court concluded that the accused prepared the D 101 declaration number [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. As a **twelfth ground**, incorrect legal reasoning is alleged. In proven fact 8 of the two thousand ten period, the court concluded that the accused prepared the D 101 declaration number [Identificacion7], in the name of Consultores ORS y Asociados Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. Report 2015-1402-AED, in its result 32 (p. 34), demonstrates that the handwriting features of the declaration do not correspond with those of the defendant. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. As a **thirteenth ground**, incorrect legal reasoning is claimed. In proven fact 9 of the two thousand ten period, the court concluded that the accused filed the D 101 declarations number [Identificacion8], in the name of Inversiones Beyof Sociedad Anónima; [Identificacion7], in the name of Consultoría ORS y Asociados Sociedad Anónima; [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima; and 101225706772, in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused filed said declarations. There is no proof that the defendant filed this declaration at the banking entity. As a **fourteenth ground**, incorrect legal reasoning is alleged. In proven fact 1 of the two thousand eleven period, the court concluded that the accused prepared the D 101 declaration number [Identificacion9], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. The declaration was made through the [...] system, so it did not have to be handwritten. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. It was even held as proven that this declaration was filed by [Nombre6]. As a **fifteenth ground**, incorrect legal reasoning is alleged. In proven fact 2 of the two thousand eleven period, the court concluded that the accused prepared the D 101 declaration number [Identificacion22], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. At the time this declaration was made, it was done through the [...] system, so it did not have to be handwritten. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. It was even held as proven that this declaration was filed by [Nombre6]. As a **sixteenth ground**, incorrect legal reasoning is claimed. In proven fact 3 of the two thousand eleven period, the court concluded that the accused filed the D 101 declarations number [Identificacion9], in the name of Inversiones Beyof Sociedad Anónima; [Identificacion22], in the name of [Nombre5]; [Identificacion10], in the name of Edifico Adrofer Sociedad Anónima; and [Identificacion11], in the name of Consultoría ORS y Asociados Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declarations. Nor is there proof that the defendant filed this declaration at the banking entity. As a **seventeenth ground**, incorrect legal reasoning is claimed. In proven fact 4 of the two thousand eleven period, the court concluded that the accused prepared the D 151 declaration number [Identificacion12], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. At the time of preparing this declaration, it was done through the [...] system, so it should not have been handwritten. Additionally, this declaration does not appear in the documentary evidence, but rather a detail of third-party declarations, without the defendant's signature. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. It was even held as proven that the declaration was filed by [Nombre6]. As an **eighteenth ground**, incorrect legal reasoning is alleged. In proven fact 5 of the two thousand eleven period, the court concluded that the accused prepared and filed the D 151 declaration number [Identificacion23], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the accused prepared and filed said declaration. In an interview with the Tax Administration's Intelligence Directorate (annexes of the investigation report for the “[Nombre1] case”), [Nombre6] proved that she prepared and filed the tax declarations for [Nombre5]. It was even held as demonstrated that this declaration was filed by [Nombre6]. As a **nineteenth ground**, incorrect legal reasoning is alleged. In proven fact 6 of the two thousand eleven period, the court concluded that the accused prepared and filed the amended D 151 declaration number [Identificacion24], in the name of [Nombre5].

But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared and filed the tax returns (declaraciones tributarias) for [Nombre5]. In fact, it was held as proven that the tax return (declaración) was filed by [Nombre6]. As a twenty-first ground, incorrect legal reasoning is claimed. In proven fact 1 for the two thousand twelve period, the court concluded that the defendant prepared and filed tax return (declaración) D 101 number [Identificacion13], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax returns (declaraciones tributarias) for the accused’s companies. Furthermore, it was held as proven that this tax return (declaración) was filed by [Nombre6]. As a twenty-second ground, incorrect legal reasoning is claimed. In proven fact 2 for the two thousand twelve period, the court concluded that the defendant prepared and filed tax return (declaración) D 101 number [Identificacion14], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax returns (declaraciones tributarias) for the accused’s companies. Furthermore, it was held as proven that the tax return (declaración) was filed by [Nombre6]. As a twenty-third ground, incorrect legal reasoning is claimed. In proven fact 3 for the two thousand twelve period, the court concluded that the defendant prepared and filed amended tax return (declaración rectificativa) D 101 number [Identificacion25], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax returns (declaraciones tributarias) for [Nombre5]. Furthermore, it was held as proven that this tax return (declaración) was filed by [Nombre6]. As a twenty-fourth ground, incorrect legal reasoning is alleged. In proven fact 4 for the two thousand twelve period, the court concluded that the defendant prepared and filed tax return (declaración) D 151 number [Identificacion15], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proves that she prepared the tax returns (declaraciones tributarias) for the accused’s companies. Furthermore, it was held as proven that this tax return (declaración) was filed by [Nombre6]. As a twenty-fifth ground, incorrect legal reasoning is claimed. In proven fact 5 for the two thousand twelve period, the court concluded that the defendant prepared and filed tax return (declaración) D 151 number [Identificacion26], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax returns (declaraciones tributarias) for [Nombre5]. Furthermore, it was held as proven that this tax return (declaración) was filed by [Nombre6]. As a twenty-sixth ground, incorrect legal reasoning is claimed. In proven fact 6 for the two thousand twelve period, the court concluded that the defendant prepared and filed amended tax return (declaración rectificativa) D 151 number [Identificacion27], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax returns (declaraciones tributarias) for the companies of [Nombre5]. Furthermore, it was held as proven that this tax return (declaración) was filed by [Nombre6]. As a twenty-seventh ground, incorrect legal reasoning is claimed. In proven fact 1 for the two thousand thirteen period, the court concluded that the defendant prepared and filed tax return (declaración) D 101 number [Identificacion16], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax returns (declaraciones tributarias) for the accused’s companies. Furthermore, it was held as proven that this tax return (declaración) was filed by [Nombre6]. As a twenty-eighth ground, incorrect legal reasoning is alleged. In proven fact 2 for the two thousand thirteen period, the court concluded that the defendant prepared and filed tax return (declaración) D 101 number [Identificacion28], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report “[Nombre1] case”), [Nombre6] proves that she prepared the tax returns (declaraciones tributarias) for [Nombre5]. Furthermore, it was held as proven that this tax return (declaración) was filed by [Nombre6]. As a twenty-ninth ground, incorrect legal reasoning is invoked. In proven fact 3 for the two thousand thirteen period, the court concluded that the defendant prepared and filed tax return (declaración) D 151 number [Identificacion17], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report “[Nombre1] case”), [Nombre6] proves that she prepared the tax returns (declaraciones tributarias) for the accused’s companies. Furthermore, it was held as proven that this tax return (declaración) was filed by [Nombre6]. As a thirtieth ground, incorrect legal reasoning is claimed. In proven fact 4 for the two thousand thirteen period, the court concluded that the defendant prepared and filed tax return (declaración) D 151 number [Identificacion18], in the name of Inversiones Beyof Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax returns (declaraciones tributarias) for the accused’s companies. Furthermore, it was held as proven that this tax return (declaración) was filed by [Nombre6]. As a thirty-first ground, incorrect legal reasoning is reproached. In proven fact 5 for the two thousand thirteen period, the court concluded that the defendant prepared and filed tax return (declaración) D 151 number [Identificacion29], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax returns (declaraciones tributarias) for [Nombre5]. Furthermore, it was held as proven that this tax return (declaración) was filed by [Nombre6]. As a thirty-second ground, incorrect legal reasoning is claimed. In proven fact 6 for the two thousand thirteen period, the court concluded that the defendant prepared and filed amended tax return (declaración rectificativa) D 151 number [Identificacion30], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that tax return (declaración). At the time this tax return (declaración) was prepared, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax returns (declaraciones tributarias) for [Nombre5]. Furthermore, it was held as proven that this tax return (declaración) was filed by [Nombre6].

V.- Due to their thematic unity, the grounds referred to in the preceding recital (considerando) will be heard jointly, and they are hereby dismissed. As can be seen in the formulation of the objections, the appellants made the decision to challenge, one by one, the different events for which the accused [Nombre1] was convicted. To give them an adequate response, however, this chamber must take a different path. The accused was not charged with the commission of isolated and unconnected criminal acts; rather, it is asserted that she was linked to, and actively participated in, a criminal network that carried out a plurality of actions over several years, with the participation not only of herself, but also of third parties. The criminal activity—it is said—had a certain level of complexity and required cooperation. This being the case, if one seeks to establish the truth of what happened, the first thing that must be done is to obtain a general overview, starting, naturally, from the evidentiary elements. Only after understanding, globally, what was done, can one return to the particular, to determine what role—if any—the defendant played in that factual scenario. It will be necessary to start from the particular fact to arrive at that general picture; from the analysis of the concrete data to the all-encompassing vision, and then return to the particular. That was the path taken by the trial court (judgment uploaded to the virtual desktop, pp. 127 to 183), and reference will be made to it, although not necessarily in the same order of exposition, but making it clear that the comprehensive analysis of all the elements is already in the judgment on the merits. It is opportune to note that the discovery of what the trial court has called the “complex plan cloaked in legality” (judgment, p. 127), begins with the notice received by Mrs. [Nombre5], that she was registered as a taxpayer (obligada tributaria) with the Ministerio de Hacienda. The revelation occurred when her son tried to enroll her as a “non-contributor,” at which time the Caja Costarricense de Seguro Social, performing a cross-check of data, determined that she appeared as an income taxpayer (contribuyente de renta), by virtue of supposed professional services rendered over years to some companies. Mrs. [Nombre5] appeared at trial to ratify what she has repeated time and again, not only during the proceedings, but before that, within the administrative investigation carried out by the Ministerio de Hacienda; that is, that “she never provided these services to the companies, nor could she even provide them since she was not and is not a professional” (p. 130). There is no doubt, and it has not even been the subject of controversy, that Mrs. [Nombre5] was not the author of the self-assessment tax returns (declaraciones autoliquidaciones) that appeared in her name at the Ministerio de Hacienda; in fact, the pertinent graphoscopic tests were performed, confirming the above. Faced with this irrefutable reality, derived both from the statement of the affected person herself and from the expert evidence, one might ask whether it could be a mistake by some third party. A basic analysis is enough to understand that this possibility must be discarded in limine, since the tax returns (declaraciones) in question are documents in which the personal data of the person appearing as the declarant are recorded. This means that any third party who had made the assessment would have had to consult or ascertain the declarant's personal information and record it in the document, knowing that they were doing so. Whoever searches for and records a third party's information in the tax return (declaración) is necessarily performing a conscious act, not a thoughtless or accidental action; one cannot complete such tax returns (declaraciones) without knowing what one is doing. This brings us to the person who filed the false tax returns (declaraciones falsas): the accounting assistant [Nombre6]. According to the report prepared at the administrative level by the Dirección de Inteligencia of the Dirección General de la Tributación, “It was also determined, from the analysis carried out on the Portal de Tributación Directa, that they were filed by the user [Nombre6], identity document number CED20” (judgment, p. 141) and it was further specified: “Regarding the supposed accountants, the investigation highlighted the following data: [Nombre6] and Mr. [Nombre15] were located, in order to clarify the situation, which they did on August 8, 2014. [Nombre15] stated that he was an accountant and was registered with the respective professional association. He denied having a relationship with the defendant [Nombre1] and stated that he did not know [Nombre5]. The Sección de Inteligencia Tributaria was able to establish from the interviews that the original accountant for the companies in question was Mr. [Nombre16], who had died on June 4, 2008, and that Mrs. [Nombre6], who was his accounting assistant, continued with the client portfolio he had after his death; in the interview, she stated having 'inherited' that client list and that she was supervised by her husband [Nombre15]. It was also possible to establish that Mrs. [Nombre6] is not a public accountant, but rather worked as an accounting assistant. She acknowledged knowing Mrs. [Nombre1] [Nombre1] and the related companies and family members, with whom she maintained a working relationship. She stated she did not know [Nombre5], but that nonetheless she has filed tax returns (declaraciones) for her through the EDDI system and has filled out tax forms by hand” (pp. 141 and 142). In fact, the appellants do not seem to have any problem accepting the participation of Mrs. Vargas Jiménez in the act, to the point that they make her the cornerstone of their argument, seeking thereby to discharge the responsibility of [Nombre1]. Having established that the said filing and, in some cases, the manual preparation of the forms is attributable to [Nombre6], one must ask the reason for such action. Evidently, by recording false information in the tax returns (declaraciones) and doing so for years, she was exposing herself to being criminally punished, so common sense and experience indicate that she must have had some motivation to do so. As stated earlier, she acknowledged that the defendant [Nombre1] was her client; in fact, citing the investigation, the court stated: “the companies send them the documentation and they prepare the tax returns (declaraciones), upon preparing them they deliver them to the companies, it was said they delivered them to Mrs. [Nombre1], they were given to her in physical form, when it changed to digital, they prepared and uploaded them into the system, therefore, she continued, she, the one to whom professional services were paid was her husband” (p. 153). Additionally, the falsehoods in Mrs. [Nombre5]'s tax returns (declaraciones) lead to three companies represented by the accused: Edificio Adrofer Sociedad Anónima, Consultoría ORS y Asociados Sociedad Anónima, and Inversiones Beyof Sociedad Anónima (pp. 133 and 134). Indeed, each time it was falsely stated that Mrs. [Nombre5] provided professional services, it was in relation to one of those three companies for which the accused held power of attorney. The lower court (a quo) noted in this regard: “At the beginning, it was possible to verify that indeed, at least three companies reported having Mrs. [Nombre5] as a supplier for professional services, highlighting among these ORS, Beyof, and the other, Adrofer. The 'cross-check' was performed, since these companies reported making payments to her for professional services and on the other hand, it was possible to establish, through the study of the Tax Administration's database, that there were tax returns (declaraciones) from Mrs. [Nombre5]: 'In which she declared having provided services to these three companies, in her name she declared that she had three clients' and on the other hand, the data was obtained that these three clients, for their part, were reporting these payments; on this point the witness said: 'The cross-check was coincident, she indicates having those clients and the clients indicate having her as a supplier.'” (p. 151). There was an exact match: the amounts that Mrs. [Nombre5] declared having received for professional services in a tax return (declaración) were equivalent to those that each company said it had paid her. But since it has been established that Mrs. [Nombre5] did not prepare the tax returns (declaraciones) filed in her name, there was no benefit for her whatsoever. The gain was for the companies that, by reporting the payment for those services, could deduct them when paying taxes on their income; a lower net profit had the effect of reducing the amount of their taxes. But the coincidence did not occur only in the content of the tax returns (declaraciones). The court pointed out that “Regarding the formal duties of filing tax returns (declaraciones), the following coincidences were detected: They have the same filing date. They were filed at the same bank agency. That from the moment electronic filing was required, both the tax returns (declaraciones) of the companies ORS, ADROFER, and BEYOF, as well as the tax returns (declaraciones) of [Nombre5], were made under the user code belonging to Mrs. [Nombre6]. Finally, it highlights, and is of interest to this judgment, the fact that Mrs. [Nombre5]'s tax returns (declaraciones), both informative and self-assessment, were filed by [Nombre15] and by [Nombre6]” (p. 143).

And further on it added: </span><span style="font-family:Arial; font-style:italic">“the respective forms were submitted simultaneously: 'They were submitted at the same bank branch, on the same day, both those of the company and those of Mrs. [Name5], even before the same teller, and when they were digital later on, they were submitted by the same person, it was the same person who submitted them.' An analysis was also made of the persons listed on the forms as the 'contact', determining that the person who submitted the declarations was Mrs. [Name6], and this person was not fictitious, but real” </span><span style="font-family:Arial">(p. 152). See, then, the astonishing coincidence that would have had to occur if the declarations had actually been submitted by their legitimate holders; this would imply the chance event that the person submitting the company declarations coincided in place and time with Mrs. [Name5] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">in every case. When submitted digitally, it was done through the “user” of the person who admitted to doing the accounting work for the accused or that of her husband [Name15] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">. All of this, without forgetting that the person appearing in the declarations as the “contact person” is that accounting assistant who, nevertheless, maintained she never knew the aggrieved party [Name5] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">(p. 146). It has already been pointed out that the accused [Name1] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">represented the three companies that benefited from the existence of the false declarations of Mrs. [Name5] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">, which corresponded exactly with those of the companies in question. But, in addition, there is evidence that, over the years, she prepared and signed many of the false declarations for those companies. These are D-101 number [Identification3] and D-101 number [Identification4], in the year two thousand nine; D-101 number [Identification6], D-101 number [Identification7], for the two thousand ten period; D-101 number [Identification9], for the year two thousand eleven (pp. 185 to 192); she also prepared those identified as D-101 number CED9, D-101 number CED11, and D-101 number CED12, but for reasons that will be explained in considerando XII, they are not to be taken into account at this time. The graphoscopic examination performed on said declarations allowed for the scientific determination that the accused directly prepared and/or signed those declarations. But as stated earlier, the stratagem was effective insofar as the falsehood in the expenses of the companies' declarations matched perfectly with the fictitious declarations of Mrs. [Name5] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0;&#xa0;&#xa0; </span><span style="font-family:Arial">, which implies that whoever prepared the former had to do so with full knowledge of what was recorded in the latter; otherwise, the deception of the tax system would collapse. Whoever, like the accused, knew they were recording false data in the income tax returns, had to know of the concomitant falsehood in the declarations of Mrs. [Name5], so that there would be no cracks in the illegal mechanism. But, moreover, this highlights that she knew the details of the fraudulent procedure from which, ultimately, her represented companies were the great beneficiaries. When the illegal conduct began to come to light, new indications emerged. One of them is that, also with astonishing coincidence, actions were taken aimed at erasing the traces of the crime. Rectifying declarations were prepared by the person who, it is reiterated, had indicated having no relationship with Mrs. Otárola: [Name6] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">. The </span><span style="font-family:Arial; font-style:italic">a quo </span><span style="font-family:Arial">states in this regard: </span><span style="font-family:Arial; font-style:italic">“The report makes it evident that in the case of [Name5] </span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">her income tax returns were rectified, leaving the declarations at zero and the informative declarations were annulled where they indicated that Inversiones Beyof had paid professional services to Mrs. [Name5], leaving in the informative database a value of one colón, where it was recorded that Mrs. [Name6] </span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">paid [Name5] </span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial; font-style:italic">the sum of one colón for professional services, regarding which the report indicates: 'making it evident that the process was carried out by Mrs. [Name6] [Name6], the accountant of Mrs. [Name1] and who said she did not know Mrs. [Name5], therefore, if she does not know Mrs. [Name5], how is it that she has access to know the declarations that had been submitted in the name of Mrs. [Name5], since to make a rectification, she must have in her possession the information of the declaration to be rectified, be it the taxpayer's personal data, the declaration number, or the amounts. This modification to erase the trace that Mrs. [Name5] </span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0;&#xa0;&#xa0; </span><span style="font-family:Arial; font-style:italic">had no relationship with the companies of Mrs. [Name1], manages to do so for three years which is what the system allowed her, but not for the years two thousand eleven' (Cf. report of the Dirección de Inteligencia Tributaria, page 58. Added to the electronic file). With the foregoing, the question arises as to how they were able to make the rectifications and annulments of the declarations, because the only way to make these modifications and annulments is through the original declarations; however, the accountants did not have access to said information” </span><span style="font-family:Arial">(pp. 143 and 144)</span><span style="font-family:Arial; font-style:italic">.</span><span style="font-family:Arial"> This is confirmed by the testimony of witness [Name17] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">, an investigator from the Dirección de Inteligencia Tributaria, from which the trial court highlighted the following: </span><span style="font-family:Arial; font-style:italic">“The witness also referred to the rectifying declarations, which he was able to verify and document, even in the report as we saw, regarding which he indicated they occurred in the year 2014, specifically on the tenth of July, noting that it was Mrs. [Name6] who: 'logs in with a password and modifies all of Mrs. [Name5]'s declarations, the system allowed her to go back three periods, up to income tax and the D-151 declarations, all modified on the same day, July 2014, on August 20, there was another modification in the informative declarations of Mrs. [Name5], the system allows clarifying rectifications, it was done for the amount of one colón, it imputed to [Name6], as if this Mrs. [Name5] had paid her the amount of one colón, I don't recall the reason,' regarding which he considered the reason for this action, looking at it particularly from the perspective of the Dirección de Inteligencia, was that with this 'they wanted to erase the tax trace of those companies.'” </span><span style="font-family:Arial">(pp. 146 and 147). And the trial court also highlighted an important detail narrated by Mr. [Name17], which reveals the irregularity they sought to hide; the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> states: “Regarding the scope of the rectifying declarations, the witness indicated that in any type of declaration, when the taxpayer: 'Makes an accounting error, or an erroneous piece of data was recorded in the transcription, less or more income or expenses were declared.' He clarified in this regard that: 'Rectification for several periods and several companies, and wanting to erase a trace, is not normal, upon being rectified, there were no longer imputations between the companies, she made the modifications [Name6], later they made another rectification, where that declaration was left with a cutoff of one colón, the same lady paid her one colón, for a professional service, they try to zero out everything related to [Name5], they could not delete it, what they did was rectify the amount. Imputation for us, as a taxpayer I request a service of any type or a purchase of any type, I acquire, I pay commissions, rents to person x, I paid that service of such amount, the imputation means that this person comes to say, yes it is true, they paid me that amount, or more or less, the cross-checking of information we call shadow occurs'” </span><span style="font-family:Arial">(pp. 148 and 149). Karla Salas Corrales, Director of the Dirección de Inteligencia, testified in a similar vein, as recorded by the trial court: </span><span style="font-family:Arial; font-style:italic">“It also highlights that when the decision was made to conduct the audits, the information available on the self-assessment declarations of Mrs. [Name5] and the companies was as of July fourth, but on July tenth, rectifying declarations were submitted in the name of those three companies and [Name5], regarding what could be verified from these rectifying declarations, the witness accounts that: 'When the audit begins, two companies were selected for audit, the declarations were available, on July 10th those rectifications are submitted and the name of [Name5] is eliminated </span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">and [Name5]'s declarations were also corrected, they were corrected, left at zero, she no longer had income or expenses and the companies' declarations, the informative declarations, are corrected. The Dirección de Fiscalización, when it manages to start, must begin from the last declaration and by then it was gone, the work is done on the last declaration, no longer reports from Mrs. [Name5]. Records are not deleted, so we have both declarations, those filed in the corresponding period and then in July.' Besides this situation, their attention was also drawn to the fact that the same pattern continued regarding the submission of documents, in the sense that they were submitted simultaneously: 'same common denominator, these rectifying declarations were submitted on the same day and by the same person.'” </span><span style="font-family:Arial">(p. 155). It seems obvious that when rectifications are due to errors made, they are sporadic. It is practically impossible that one could have been so clumsy as to have made mistakes in all the declarations filed over several years in the name of Mrs. [Name5] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0;&#xa0; </span><span style="font-family:Arial">and very suspicious that the need for rectification arose when the illicit scheme was being revealed. Therefore, we can conclude, following the cited specialists, that the rectification of multiple declarations, besides representing a practically improbable coincidence, is a clear indicator of an attempt to erase traces of the irregular activity. But to this is added one more element, and it is that the person identified as the accountant for the accused called Mrs. [Name5], with murky intentions, as the latter revealed at trial. This happened after the case against the defendant was reopened. What this alleged accountant intended was for her to communicate with the accused [Name1], something that Mrs. [Name5] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0;&#xa0; </span><span style="font-family:Arial">says she did not do initially, although she did so later (pp. 170 and 171). What is noteworthy about this is the confirmation of [Name6]'s knowledge, first of all, and the accused's, secondarily, of the procedure that had been carried out; the latter, given the problem she faced, wanted to communicate with the victim. That interest in communicating was satisfied when the accused managed to speak by telephone with Mrs. [Name5] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">, a call whose recording even received coverage in the media. As will be seen further on, this appellate tribunal considers the recording of said call to be illegal. Therefore, it is not valid to make use of it as evidence. However, the memory preserved by Mrs. [Name5] was sufficient to finally confirm the involvement of [Name1] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">in the crimes charged. As befits someone who had been discovered in the commission of criminal conduct, the accused asked the aggrieved party to retract, to speak falsely to a journalist, so that the entire scheme in which she had participated would not be revealed. The trial court reproduced the witness's words in these terms, and made the corresponding comment: </span><span style="font-family:Arial; font-style:italic">“'I received the reporter from a television channel and a week or a few days later, a journalist from La Nación, talking with this journalist, they did not understand how a seamstress knew Mrs. [Name1], then came the call that was made public, at that moment a reporter from La Extra and one from La Nación were there, I answered, my phone was old, you had to answer on speakerphone, my son had given me a bad phone, I put one phone next to the other to record the lady's voice, the rest is public, the ongoing process is already known... During the call were two journalists, named [Name4], one with the surname [Name18], they were from La Nación and La Extra. The call asked me to please, -Mrs. [Name1] (she identified herself)- to retract my statement to the journalist, that she would help me with a pension and with a house, it was a long call, many things, that I had to retract, this affected me, that she would handle helping me with a pension and with insurance, I am paraphrasing, I do not remember the literal words. I recorded that call, the reporter also recorded it, that call was made public, that was not my intention, it was not my intention to record it. My intention was, try to put yourself in my place, a person without education, without money, without position, my word for the most part was worthless, I had to rely on another person to reopen my case, already archived, my intention was that the day I go to trial and I, with her own voice admitting it, not my voice accusing her of such an unpleasant crime, in that process, it is her own voice that accuses her. The socio-economic and political level, she committed a crime and someone has to make her see it, it is proof that I was telling the truth. When that call came in I did not know it was from her. I decide to record it, I cannot say at what moment, it was not planned, I answered on speakerphone, I put the other phone to record when answering on speakerphone. I am clear that she wanted me to stop the reporter so that the matter would not be made public. I felt upon receiving that call furious, that is the only word that comes to me.' And she explains that she felt furious because for her, Mrs. [Name1] </span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">was a lady, a woman of standing in all fields, whom she saw as a role model, brave, with a career, performing in the world in a valuable way, and she saw 'that image of honorability crumble'” </span><span style="font-family:Arial">(pp. 172 and 173). All of the foregoing leads to a conclusion—as the synthesis that must be reached—which is that the accused, consciously, formed part of an organization that carried out multiple crimes, over several years, to benefit three family companies for which she held power of attorney, performing material acts aimed at consummating the crimes, and clearly understanding that, through an intermediary person, she carried out others. There was, at least, the participation of the accounting assistant [Name6] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">, in the development of the operational parts, and the connivance of her husband who, in his capacity as an accountant, provided a certain formality to the recording of accounting operations; but what is clear, patent, and manifest is that all the criminal actions ended up benefiting, fundamentally, Edificio Adrofer Sociedad Anónima, Consultoría ORS y Asociados Sociedad Anónima, and Inversiones Beyof Sociedad Anónima. This allows us to address the claims that are rejected in this section, since as can be seen, the appellants seek to exclude the accused's responsibility based on certain common arguments, which are not acceptable. First, they claim that the trial court attributes to [Name1] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">having prepared and/or submitted the declarations. This is not accurate; the trial court stated in each case that the submission was made directly, or through an intermediary person, which is indeed true. The participation of the accounting assistant [Name6], which the appellants not only do not deny but reaffirm as the core of their claims, was an essential part of the criminal enterprise carried out, as already indicated. But as pointed out earlier, the criminal operation gained meaning based on someone who benefited from it, which was not, at least primarily, [Name6]. Thus, when in the </span><span style="font-family:Arial; font-weight:bold">second claim</span><span style="font-family:Arial">, the appellants state that in the facts</span><span style="font-family:Arial; font-weight:bold"> </span><span style="font-family:Arial">found proven 1 and 2 for the two thousand nine period, the trial court concluded that the accused prepared and submitted the D 151 declaration number [Identification1], in the name of Edificio Adrofer Sociedad Anónima, the first thing to clarify is that what the </span><span style="font-family:Arial; font-style:italic">a quo </span><span style="font-family:Arial">attributed to her was having prepared it, but not necessarily having submitted it; the latter was done—the judgment states—, personally or through an intermediary person. Precisely, that is where the acknowledgment by [Name6] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">of having participated in the processing of the tax declarations of the company in question becomes relevant, a detail that the challengers accept without dispute. Also relevant is everything stated earlier, that her participation could not be the product of an error, but part of a properly orchestrated and operationalized criminal plan. It is from that participation that it is confirmed that including the expense of three million five hundred thousand colones in the declaration was part of the scheme that the involved persons carried out time and again. Precisely, the participation of [Name6], together with the fact that, ultimately, the declaration served to reduce the taxable base of the referred company, represented by [Name1], shows that the falsehood was one more of the actions whose general knowledge was demonstrated by the accused through her conversations with [Name5] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0;&#xa0;&#xa0; </span><span style="font-family:Arial">. It is here where the importance emerges, in the judgment of this tribunal, of having sought, in the first place, to reconstruct the general panorama of the criminal action and the role of the accused within it. The fragmented analysis proposed by the appellants in this ground, as in the other twenty-nine analyzed here, is evidently ineffective for reconstructing what really occurred. It must be noted that, regarding said declaration, the trial court incurs an error in stating that it was prepared by the defendant. In reality, the evidence indicates that the comparison elements provided (documents with signatures and handwriting features of the accused), are of a different model from those appearing on said document (report 2015-1402-AED, in Case File part 14, images 26, 27, and 30). The indictment did not contain that inaccuracy, as it recorded that </span><span style="font-family:Arial; font-style:italic">“the accused [Name1] </span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial; font-style:italic">and [Name6] </span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">, prepared the Annual Summary Declaration of Clients, Suppliers, and Specific Expenses form D-151 number [Identification1] in the name of the company Edificio ADROFER Sociedad Anónima” </span><span style="font-family:Arial">(indictment, images 3 and 4), by which the Ministerio Público left open the possibility that the preparation itself had been done by [Name6], as the appellants suggest. However, the imprecision committed is of no consequence, since the use of the false document per se, which is attributed to the defendant, is recounted in the second proven fact of the year two thousand nine, where it is correctly stated that the defendant acted personally or through an intermediary person, which is true, according to the analysis conducted throughout this considerando. The appellants assert that said declaration is not found in the documentary evidence. This is not true. In the field of declarations, at folio 250, one can see the manila envelope containing the declaration for the two thousand nine period, number [Identification1]. The document records, in the space for the "taxpayer or legal representative," the name “[Name19]” ([Name20]) “” ([Name21]) </span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">and her identification number, as well as a signature, all in apparent ballpoint pen ink. They point out that the detail of suppliers is not provided, except in an annex. Indeed; because that is the format presented by the Dirección de Tributación of the Ministerio de Hacienda for the declaration. A document called "Annual Summary Declaration of Clients, Suppliers, and Specific Expenses" is seen, to which another identified as "Detail Sheet" is added. However, their relationship is indubitable, not only because they correspond to the same year and the same declaring company, but also because they show coinciding information. Thus, the declaration refers to two professional services for a total of three million six hundred thirty-three thousand three hundred thirty-three colones. The detail sheet, for its part, specifies the existence of two beneficiaries: [Name15] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">, for one hundred thirty-three thousand three hundred thirty-three colones; and [Name5] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0;&#xa0;&#xa0; </span><span style="font-family:Arial">, for three million five hundred thousand colones. In other words: the annual summary declaration of clients, suppliers, and expenses of Edificio Adrofer Sociedad Anónima for the year two thousand nine matches perfectly with the detail sheet in the name of the same company and the same year, which simply specifies who those service providers are and how much was paid to each one. In the </span><span style="font-family:Arial; font-weight:bold">third challenge</span><span style="font-family:Arial">, the challengers claim that in the proven facts 3 and 4 for the two thousand nine period, the trial court concluded that the accused prepared and submitted the D 151 declaration number [Identification2], in the name of Consultoría ORS y Asociados Sociedad Anónima. In this case, that is not true, first, because here the </span><span style="font-family:Arial; font-style:italic">a quo </span><span style="font-family:Arial">did use the formula of the indictment, which indicates that the preparation of the document was the product of the collaboration obtained by the defendant from the accused [Name6] [Name6]. Thus, the fact that the Tax Administration established, as the appellants correctly assert, that Mrs. Vargas prepared and submitted the tax declarations of the companies represented by [Name1], is something that links the latter, following the explanation given in this considerando. So, while it is true that report 2015-1402-AED, in its findings 64 and 70 (Case File part 14, images 31, 32, and 35), indicates that the signature on the document is of a different model from the defendant's and the individualizing characteristics of her handwriting are not present in the declaration, this does not invalidate her participation in the illicit act. On the other hand, it must again be reiterated that the lack of indication of suppliers in the D-151 declaration is a particularity of the document itself, which must be complemented by the detail sheet indicating such data. In the field of declarations, at folio 296, there is a manila envelope containing within it, among others, the Annual summary declaration of clients, suppliers, and specific expenses of Consultoría ORS Sociedad Anónima which records two professional services for a total of three million six hundred thirty-three thousand three hundred thirty-three colones; moreover, it is duly signed and records [Name1] as the issuer </span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">“[Name20]” (sic). The attached detail sheet specifies that said professional services were provided by [Name15] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">, for one hundred thirty-three thousand three hundred thirty-three colones and by [Name5] </span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0;&#xa0;&#xa0; </span><span style="font-family:Arial">, for three million five hundred thousand colones. As can be seen, the sum of both items matches completely with the total of the declaration. The </span><span style="font-family:Arial; font-weight:bold">fourth objection,</span><span style="font-family:Arial"> formulates identical arguments regarding the proven facts 5 and 6 of the two thousand nine period, concerning D 151 declaration number [Identification19], which warrants reiterating the response given in the previous point. In this case, it is not necessary to show the challengers the existence of the document, as it is not denied here.</span> The same must be said regarding the **fifth objection,** related to proven fact 7 of the two thousand nine period and the D 101 declaration number [Identificacion3], in the name of Edificio Adrofer Sociedad Anónima; regarding the **sixth ground,** which speaks of proven fact 8 of the two thousand nine period, concerning the D 101 declaration number [Identificacion4], in the name of Consultoría ORS y Asociados Sociedad Anónima; in relation to the **seventh claim,** pertaining to proven fact 9 of the two thousand nine period, regarding the D 101 declarations number [Identificacion20] in the name of [Nombre5] , D 101 number [Identificacion3] in the name of Edificio Adrofer Sociedad Anónima, and D 101 number [Identificacion4] in the name of Consultoría ORS y Asociados Sociedad Anónima; and as to the **eighth reproach,** referring to proven facts 1 and 2 of the two thousand ten period, concerning the D 151 declaration number [Identificacion5], in the name of Edificio Adrofer Sociedad Anónima. Given identical arguments, the response already provided must be reiterated regarding them. In this last claim, referring to the year two thousand ten, it must additionally be taken into account that the allegation is repeated that the declaration does not appear in the documentary evidence, but rather a detail of third-party declarations, without the signature of the defendant. Here, the clarification made by the Tax Intelligence Directorate (Dirección de Inteligencia Tributaria) of the Ministry of Finance must be considered: *"For the year 2010, [the declaration] was submitted electronically, through the Declara version 4.0.2, according to information provided by the DTIC (which stands for Information and Communication Technologies Directorate) that has an email address: [...], corresponding to the contact name [Nombre15] , telephones 2285-3731. [by virtue of which] A printout from the SIIAT of said (certified) declaration number [Identificacion5], filed on November 27, 2010, is attached"* (declarations file, certification on p. 98). It is not appropriate to demand the presentation of a physical declaration that never existed, because the one made was done through computerized means. Therefore, a certification of the declaration was provided (declarations file, certification on pp. 220 to 222). Certainly, the detail of the suppliers can be seen on the second page of the certification's content, and the exact correspondence between the two can be observed, as the first mentions two operations for four million colones and one million colones; while in the detail it is shown that the one million corresponds to [Nombre5] and the four million to Inversiones Regiofe Sociedad Anónima. As the appellants point out, in this case the declaration was presented by [Nombre6] through the user account of her husband [Nombre15] , which does not change anything considered so far. The basis of the **ninth objection** is similar to that of the eighth, only that it refers to proven facts 3 and 4 of the two thousand ten period, regarding the D 151 declaration number CED6, in the name of Consultoría ORS Sociedad Anónima. It is therefore worth reiterating the inaccuracy of the appeal, in stating that the preparation and presentation of the document were attributed to the defendant, when the facts refer to the joint participation in the preparation by the defendant and [Nombre6] and the presentation of the document by the latter. Again, it is the latter's intervention, through her husband's "user account," which confirms, rather than disproves, the involvement of [Nombre1] in the crime, due to the connection that existed between the two, as has been analyzed since the beginning of this recital (considerando). As for the issue of the supplier detail, in the sense that they are in an annex, it must again be pointed out that in the year two thousand ten this declaration was submitted electronically, through Declara version 4.0.2, according to information provided by the Information and Communication Technologies Directorate (declaration file, certification on pp. 98 vto. and 99), for which a certification of the digital record was provided. In this certification, it is clearly established on its first page that the company in question carried out two payment operations for services, one for four million seven hundred fifty thousand colones and another for four million. Both fit perfectly with the following page of the certification, which indicates that in that year, to that company and regarding that declaration, [Nombre5] provided services for four million, and Inversiones Beyof Sociedad Anónima for four million seven hundred fifty thousand colones. Once again, the allegation is reiterated that attributes to the court having stated that the preparation and presentation of the declarations corresponded to the defendant, in the **tenth reproach,** referring to proven facts 5 and 6 of the two thousand ten period, concerning the D 151 declaration number [Identificacion21], in the name of [Nombre5] . It is also reiterated therein that the presentation of the documents was the exclusive responsibility of [Nombre6] , through her husband's "user account." It is therefore worth responding, regarding this, that what is claimed the court said does not coincide with the wording of what is indicated in the facts, as can easily be verified, and that the participation of [Nombre6] does not exclude, but rather confirms, the involvement of the defendant, as has been amply and repeatedly indicated. The **eleventh ground**, referring to proven fact 7 of the two thousand ten period, related to the preparation of the D 101 declaration number [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima, must receive a slightly different treatment. This is because it was even signed by the accused, as was established by expert opinion in the report DCF 2015-01402-AED of the Handwriting and Questioned Documents Analysis Section (Sección de Análisis de Escritura y Documentos Dudosos) of the Department of Forensic Sciences (Departamento de Ciencias Forenses), in its result twenty-one (Investigation File, part 14, images 10 and 11). This, without prejudice to reiterating that the participation of [Nombre6] was carried out in collusion with the accused. Something similar occurs with the **twelfth ground,** regarding proven fact 8 of the two thousand ten period, concerning the D 101 declaration number [Identificacion7], in the name of Consultores ORS y Asociados Sociedad Anónima, since here too there is expert evidence establishing that the visible signature on the document is that of the defendant, as indicated in the report DCF 2015-01402-AED of the Handwriting and Questioned Documents Analysis Section of the Department of Forensic Sciences, in its result 27 (images 13 and 14), although certainly, as the appellants indicate, the handwritten texts and numbers were not linked to her handwriting characteristics (image 17). In the **thirteenth ground,** referring to proven fact 9 of the two thousand ten period, it is said that the court concluded that the defendant presented the D 101 declarations number [Identificacion8], in the name of Inversiones Beyof Sociedad Anónima; [Identificacion7], in the name of Consultoría ORS y Asociados Sociedad Anónima; [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima; and 101225706772, in the name of [Nombre5] . However, this is not true, since what the court indicated is that she did it personally or through an intermediary. In any case, it is worth advancing that, in recital (considerando) XII of this judgment, particular treatment will be given to the declaration [Identificacion8], for the reasons that will be stated there. Likewise, the court is attributed, in the **fourteenth ground,** related to proven fact 1 of the two thousand eleven period, with having concluded that the defendant prepared the D 101 declaration number [Identificacion9], in the name of Inversiones Beyof Sociedad Anónima, when this is not true, since the judging body pointed out the existence of a plan designed by [Nombre1] and [Nombre6] to defraud the tax administration and attributed the preparation of the document to them, it could have been either of the two, as the plan was common. Certainly, the declaration was made through the system [...], by [Nombre6] , which involves the person judged here by virtue of the amply explained plan. Identical considerations to those set forth regarding the previous ground are applicable to the **fifteenth ground,** referring to proven fact 2 of the two thousand eleven period, concerning the D 101 declaration number [Identificacion22], in the name of [Nombre5] ; to the **sixteenth ground,** related to proven fact 3 of the two thousand eleven period, pertaining to the D 101 declarations number [Identificacion9], in the name of Inversiones Beyof Sociedad Anónima; [Identificacion22], in the name of [Nombre5] ; [Identificacion10], in the name of Edifico Adrofer Sociedad Anónima; and [Identificacion11], in the name of Consultoría ORS y Asociados Sociedad Anónima. It is also worth advancing that in recital (considerando) XII, for the reasons that will be explained there, particular treatment will be given to declarations [Identificacion10] and [Identificacion11]. In the **seventeenth ground,** related to proven fact 4 of the two thousand eleven period, it is said that the court concluded that the defendant prepared the D 151 declaration number [Identificacion12], in the name of Inversiones Beyof Sociedad Anónima. Certainly, it is so indicated in the proven fact, when in reality it was not proven that she did it by her own hand, as is implied. However, the error was corrected in the legal reasoning, in which it was made clear that, as throughout the development of the criminal activity, the defendant acted in collusion with [Nombre6] (judgment, p. 192). This collusion was proven, once again, from the fact referred to by the appellants that the declaration was made by [Nombre6] through the system [...]. It is said that the declaration does not appear in the documentary evidence, but rather a detail of third-party declarations, without the defendant's signature, which is due precisely to the fact that it was submitted digitally. As for the **eighteenth ground,** related to proven fact 5 of the two thousand eleven period, pertaining to the D 151 declaration number [Identificacion23], in the name of [Nombre5] , the assertion must again be qualified as inaccurate that the court attributed the preparation of the document to the defendant, when it referred to an action concerted with that person to whom the defendants attribute all responsibility for the action. The same response must be given to the **nineteenth ground,** regarding proven fact 6 of the two thousand eleven period, related to the amending declaration (declaración rectificativa) D 151 number [Identificacion24], in the name of [Nombre5] ; to the **twenty-first ground,** referring to proven fact 1 of the two thousand twelve period, concerning the D 101 declaration number [Identificacion13], in the name of Inversiones Beyof Sociedad Anónima; to the **twenty-second ground,** regarding proven fact 2 of the two thousand twelve period, linked to the D 101 declaration number [Identificacion14], in the name of Inversiones Beyof Sociedad Anónima; to the **twenty-third ground,** referring to proven fact 3 of the two thousand twelve period, related to the amending declaration D 101 number [Identificacion25], in the name of [Nombre5] ; to the **twenty-fourth ground,** regarding proven fact 4 of the two thousand twelve period, referring to the D 151 declaration number [Identificacion15], in the name of Inversiones Beyof Sociedad Anónima; to the **twenty-fifth ground,** which questions proven fact 5 of the two thousand twelve period, linked to the D 151 declaration number [Identificacion26], in the name of [Nombre5] ; to the **twenty-sixth ground,** related to proven fact 6 of the two thousand twelve period, concerning the amending declaration D 151 number [Identificacion27], in the name of [Nombre5] ; to the **twenty-seventh ground,** regarding proven fact 1 of the two thousand thirteen period and the D 101 declaration number [Identificacion16], in the name of Inversiones Beyof Sociedad Anónima; to the **twenty-eighth ground,** regarding proven fact 2 of the two thousand thirteen period, referring to the D 101 declaration number [Identificacion28], in the name of [Nombre5] ; to the **twenty-ninth ground,** regarding proven fact 3 of the two thousand thirteen period and the D 151 declaration number [Identificacion17], in the name of Inversiones Beyof Sociedad Anónima; to the **thirtieth ground,** of proven fact 4 of the two thousand thirteen period, concerning the D 151 declaration number [Identificacion18], in the name of Inversiones Beyof Sociedad Anónima; and to the **thirty-first ground,** with respect to proven fact 5 of the two thousand thirteen period, pertaining to the D 151 declaration number [Identificacion29], in the name of [Nombre5] . Finally, although in the **thirty-second ground,** referring to proven fact 6 of the two thousand thirteen period, concerning the amending declaration D 151 number [Identificacion30], in the name of [Nombre5] , the error was also committed in the judgment of attributing the preparation to the defendant, without having a basis for doing so, the truth is that in the legal reasoning it was made clear that it was a joint action with [Nombre6] (judgment, p. 197). But, in addition, it was indeed made clear, at both points in the ruling, that the presentation was made by the latter. For all the foregoing, the rejection of the referred grounds is imperative.

**VI.-** As a **twentieth ground,** contradictory reasoning is alleged. In proven fact 7 of the two thousand eleven period, the court concluded that the defendant prepared the amending declarations D 151 numbers [Identificacion31], [Identificacion32], [Identificacion33], and [Identificacion34], in the name Inversiones Beyof Sociedad Anónima. However, it acquitted her of the crime of use of a false document (uso de documento falso), because within said declarations there is no element that is not true, because the expenses reported in the name of [Nombre5] are eliminated. The appellants consider it nonsensical that their client was convicted for the amended (juridically non-existent) tax declarations and was acquitted for the amending declarations that annulled the first ones. Article 130 of the Tax Code of Norms and Procedures (Código de Normas y Procedimientos Tributarios) contemplates the amending declaration, which can cover any item, without limitation. The appellants refer to Article 20 of resolution DGT-R-026-2011 of September 30, 2011, of the General Directorate of Taxation (Dirección General de Tributación). According to the testimonial evidence, when the taxpayer makes an amendment, the initial declaration loses all legal effects, since it is replaced by the new one. The accused is charged with two uses of a false document for the two thousand eleven period, regarding non-existent declarations. An impossible crime is charged "because the object of the charged crime no longer exists." In Article 92 of the Tax Code of Norms and Procedures, the amending declaration is contemplated as a legal excuse for absolution. **It is inadmissible.** It is worth clarifying, here too, the imprecision of the appellants when they indicate that the court attributes to the accused, in proven fact 7 of the two thousand eleven period, the preparation of the amending declarations D 151 numbers [Identificacion31], [Identificacion32], [Identificacion33], and [Identificacion34], in the name Inversiones Beyof Sociedad Anónima. The wording of the proven fact attributes the preparation to both the defendant and her collaborator [Nombre6] . However, the particularity of this claim is that this does not constitute the core of the complaint, because the accused was not punished for this preparation. Insofar as they were amending declarations, which corrected previous falsehoods, an acquittal was issued in view of the fact that they no longer recorded false information. Therefore, the challengers rather question the conviction for the amended declarations, because, legally, they no longer exist. The first pillar of the appellants' argument is that Article 130 of the Tax Code of Norms and Procedures contemplates the amending declaration. Certainly it is so. The referred numeral indicates: *“**Amending declarations** / The sworn declarations or statements made by the taxable persons are presumed to be a faithful reflection of the truth and make the declarant responsible for the taxes resulting from them, as well as for the accuracy of the other data contained in such declarations. / Likewise, taxable persons may amend their tax declarations, taking into account the following aspects: / **a)** When taxable persons amend their tax declarations, they must submit, at the locations enabled for this purpose, without prejudice to the provisions of subsection e) of this article, a new declaration in the media defined by the Tax Administration, and must pay a higher tax when applicable, together with its accessories, such as interest set for late payment. / **b)** Any declaration that the taxable person submits after the initial one will be considered an amendment of the initial one or of the last amending declaration, as the case may be. / **c)** The amendment of the tax declaration may cover any item that affects the taxable base of the tax or the forms of extinguishment of the corresponding tax obligation. / **d)** The amendment of the declarations referred to in the preceding paragraphs does not prevent the subsequent exercise of the Tax Administration's powers to audit or verify. / **e)** The submission of amending declarations will not proceed after notification of the initiation of a control procedure aimed at generating a final determination (liquidación definitiva). However, the taxable person may raise, from that moment and until the conclusion of the procedure, a rectification request subject to approval by the acting bodies of the Tax Administration. The consequent approval or denial will be incorporated directly into the regularization proposal formulated to the audited subject in final determination procedures and in preliminary determination procedures; the approval or denial will be incorporated into the administrative act of ex officio determination. / In control processes aimed at generating a preliminary determination, the taxpayer may make a single amendment within the three business days following the notification of the act initiating the proceeding. Amendments submitted after the three business days from the initiation of the proceeding will have the nature of a request, so their approval or denial will be incorporated into the administrative act of ex officio determination”* (the bold belongs to the original text). It was decided to cite the article in its entirety, to show that it in no way excludes the possibility of punishing the falsehood committed in the amended declaration. Article 20 of resolution DGT-R-026-2011 of September 30, 2011, of the General Directorate of Taxation is also cited, which provides: *“**Amendment of Informative Declarations** / Given the importance for the Tax Administration of having precise and correct data for the efficient management of taxes, the informative declaration prepared and submitted through the program [...], may be corrected by the taxable person by submitting a new declaration, in order to remedy errors made in the **body of the declaration**, whose effect implies an increase or decrease in the number of reported records or corrections in the amounts or codes. / In these cases, any declaration that the taxable person submits after the initial one will be considered an amendment of the initial one or of the last amended declaration, as the case may be, completely replacing the previous one.* / On the other hand, corrections to these declarations, in which the taxpayer states having made informational errors <span style="font-family:Arial; font-weight:bold; font-style:italic">in the header of the informative declaration</span>, whether these be in the period (box 2), identification number (box 4), or name or corporate name (box 6), shall formulate the correction in writing, indicating at least the following: / a) i. Name of the taxpayer / ii. Number of the declaration to be corrected – as recorded on the acknowledgment of receipt of filing of the declaration on the Tax Administration's website -. / iii. The informational error to be corrected / iv. Address for notifications / v. Signature of the taxpayer or legal representative / This writing must be filed in the Compliance Control Area of the Tax Administration to which the respective obligor is assigned, and in the case of Large Taxpayers, before the assigned manager. / When it corresponds to corrective amendments of informative declarations prepared and filed online through the electronic filing web portal – forms D-151 and D-152 as indicated in Article 12 of this resolution –, the prior one must be completely replaced, obligatorily indicating the electronic declaration number being corrected, a number that will be recorded on the acknowledgment of receipt of filing of the declaration on the Tax Administration's website" (bold from the original). Once again, it must be said that nothing indicated in the article allows agreement with the appellants when they deduce the existence of a ground for exclusion of any of the elements of the crime. Recourse is then had to Article 92 of the same legislation, from which the appellants derive the classification of the corrective declaration as an absolute legal excuse. The provision states: "<span style="font-family:Arial; font-weight:bold; font-style:italic">Fraud against the Public Treasury / </span>Whoever, by action or omission, defrauds the Public Treasury with the purpose of obtaining, for themselves or for a third party, a pecuniary benefit, evading the payment of taxes, amounts withheld or that should have been withheld, or payments on account of remuneration in kind, or unduly obtaining refunds or enjoying tax benefits in the same manner, provided that the amount of the defrauded quota, the unremitted amount of withholdings or payments on account, or of the refunds or tax benefits unduly obtained or enjoyed exceeds five hundred base salaries, shall be punished with a prison sentence of five to ten years. / For the purposes of the provisions of the preceding paragraph, it shall be understood that: / <span style="font-family:Arial; font-weight:bold; font-style:italic">a)</span> The amount of five hundred base salaries shall be considered an objective condition of punishability. / <span style="font-family:Arial; font-weight:bold; font-style:italic">b)</span> The amount shall not include interest, fines, or punitive surcharges. / <span style="font-family:Arial; font-weight:bold; font-style:italic">c)</span> To determine the aforementioned amount, if it involves periodic taxes, withholdings, payments on account, or refunds, or those subject to periodic declaration, the amount defrauded in each tax or declaration period shall be considered, and if these are less than twelve months, the amount defrauded shall refer to the calendar year. In other cases, the amount shall be understood as referring to each of the distinct concepts for which a taxable event may be subject to assessment. / The fact that the subject remedies their non-compliance, without any requirement or action by the Tax Administration to obtain the remedy, shall be considered an absolute legal excuse. / For the purposes of the preceding paragraph, any action carried out with notification to the taxable person, aimed at verifying compliance with tax obligations, shall be understood as an action by the Administration. / The Office of the Attorney General of the Republic shall be constituted as a civil party in the exercise of the civil indemnification action, in accordance with the provisions of the Code of Criminal Procedure; for this purpose, it must have the active technical participation within the criminal process of the General Directorate of Taxation, which shall act through the General Directorate or those to whom it delegates the function. / For purposes of complying with the provisions of this article, all acts of the process must be notified to the General Directorate of Taxation" (the bold is from the original). Simply reading the title of the legal provision suffices to realize that it refers to a crime completely alien to the one for which the defendant was convicted numerous times; here it refers to fraud against the public treasury. Without greater precision, it is indicated that the testimonial evidence affirms that, when the taxpayer makes a correction, the initial declaration loses all legal effects, since it is replaced by the new one and becomes non-existent. Furthermore, an impossible crime is mentioned. The appellants are likely referring to the testimony of attorney [Name7], a doctor of tax law, who indicates having reviewed the matter of the defendant's companies at the administrative stage and being in the process of handling a contentious proceeding in her favor. It is presumed that it is he to whom the challengers refer, since he is the person who cited in his declaration Article 130 of the Code of Tax Rules and Procedures, and stated: "Law 7900 [which amended the aforementioned code] establishes a system by which any correction can be made before the appeal for reversal, and from 2012, before the assessment procedure, the correction is possible and it is a total substitution by the new one, the first disappears from the legal world and is substituted by the correction. It was developed taking as a point of reference, the corrective declarations were, by losing real existence, not used in the assessment procedure" (verdict, p. 83). The court contested the relevance of the statement, pointing out that it was applicable only to inaccurate self-assessment declarations, a qualification that those prepared in this case did not deserve. In the opinion of this appeals chamber, the issue is different. It is possible that the correction has, for tax law, the effects that the witness [Name7] indicated; there is no reason to doubt it, even considering that the professional is the lawyer of the companies through which the punished crimes were incurred. But the effects and implications relative to tax law are not what is of interest here. The issue in question is one of criminal law: does the correction of a self-assessment declaration—or one of any other nature—have the virtue of eliminating or rendering without effect the falsehood embodied in the original document or the use that may have been made of it? The answer is negative. There is no legal rule that attributes that efficacy to the subsequent declaration, and it would be wrong to search for it in a law that was not designed to regulate the criminal conduct corresponding to document falsehood, as is the Code of Tax Rules and Procedures. Therefore, the claim is without merit.

<span style="font-family:Arial; font-weight:bold">VII.- </span>As the <span style="font-family:Arial; font-weight:bold">thirty-third ground, </span>the erroneous non-application of Articles 22 and 75 of the Penal Code is alleged, and it is added that, if the proven facts stand, it should be considered an ideal concurrence and not a material one. The verdict identifies the object of the imputed conduct as a supposed unlawful pecuniary benefit and damage to the public treasury. It is an action with a single purpose, which is to obtain an unlawful economic benefit, by means of deceiving the public treasury. There is a single purpose, which is to defraud the tax authorities, so the difference in fiscal periods is irrelevant; the same conduct continued unchanged over time, without interruptions, from the year two thousand nine to two thousand thirteen. They cite the judgment when it states: "<span style="font-family:Arial; font-style:italic">However, what has been indicated up to here reveals that, as material actions, it is not possible to distinguish between the use of a false document and the deception aimed at obtaining a pecuniary benefit; in this case, there is a single action from a natural or physical point of view..." </span>(verdict, p. 132). In the opinion of the appellants, this reveals the incorrect application of the rules on concurrences. If the court considered that it was a single action, it should have applied the ideal concurrence. They cite in favor of their thesis vote 721-2001, of the Third Chamber of the Supreme Court of Justice. In light of that precedent, they maintain that, in the instant case, more than one crime per fiscal period could not be considered, as the prejudice to the tax authorities and the unlawful benefit would be consummated at the time of the final income declaration of each period. Thus, as their main thesis, they request that it be declared that the thirty-two punished crimes maintained a unity of action over time, with an impact on fiscal assets and concurring ideally. In the alternative, they request that one use of a false document be punished for each fiscal period "affected in ideal concurrence"; with a material concurrence among the five ideal concurrences. They argue that it is not possible to divide the conducts from the protected legal interest, so that "if the purpose of using the false document was precisely to affect fiscal assets, such conduct could only be achieved once a year", since the tax is paid annually. <span style="font-family:Arial; font-weight:bold">Without merit. </span>Regarding the issue of unity of action and concurrence of crimes, the Third Chamber of the Supreme Court of Justice stated, in a precedent that has been replicated time and again, and which continues to constitute the jurisprudential line of that body on the subject, the following: <span style="font-family:Arial; font-style:italic">"From Articles 21, 22, 23, 75, 76, and 77 of the Penal Code, it is inferred that the fundamental criterion for resolving the problem of this 'concurrence of crimes' lies in the definition of what is 'a single action or omission' or 'the same conduct' (cf. Articles 21 and 23, hence the number of 'results' has nothing to do with the number of conducts and crimes). In this sense, it has been affirmed that: 'The problem common to all the cited cases is determining when there is one or several actions. From the outset, the identification between action and bodily movement and the identification between action and result must be excluded. A single action, in a legal sense, can contain several bodily movements (for example, intimidating rape, robbery with breaking) or give rise to several results (exploding a bomb causing the death of several people). There are, then, other factors that contribute to establishing the concept of unity of action. The first of these is the final factor, that is, the will that directs and gives meaning to a plurality of isolated physical acts (in murder, the will to kill unifies and gives meaning to a series of acts, such as buying and loading the pistol, lying in wait for the victim, aiming, or shooting; or, in theft, the will to appropriate the thing unifies and gives meaning to the distinct acts of searching the pockets of a coat). The second factor is the normative one, that is, the structure of the criminal type in each particular case. Thus, even if the final factor that governs a causal process is the same (to kill someone), some of the particular acts carried out may, in isolation, have relevance for distinct criminal types (for example, the illicit possession of firearms for the crime of illicit possession of weapons). And, conversely, isolated acts, each governed by a different final factor, may have typified relevance only when they occur jointly (the falsification of private documents is only typified if carried out with intent to prejudice or prejudicing a third party) or have a distinct typified relevance (for example, robbery with homicide). When a single action, determined by the criteria indicated here, fulfills a single criminal type, we have the normal case. When a single action or several actions fulfill several criminal types, concurrence problems arise' (MUÑOZ CONDE, Francisco: General Theory of Crime, Valencia, Tirant lo blanch [sic], 1991, p. 194). Our doctrine indicates that the unity of action is a legal concept, and just as it is erroneous to try to define the unity of action disregarding the norm, it would also be erroneous to try to define the unity of action disregarding the fact, without giving it the subordinate place it deserves as the content of the norm: '...it is not the natural unity of action that dictates when there is an action in the legal sense; rather, it may occur that an action in the natural sense legally constitutes a plurality of actions or that a plurality of actions in the natural sense legally constitutes a single action. The separation between unity of action and plurality of actions is only possible through an interpretation of the meaning of the specific criminal type' ([Name11]: The Concurrence..., pp. 19 to 20). The adoption of the final factor (a unitary plan that gives meaning to a plurality of voluntary movements as a single conduct) and the normative factor (that converts the conduct into a unit of wrongfulness for the purposes of the prohibition) as criteria for elucidating when there is one and when there are several conducts (whether actions or omissions) is widely accepted by current doctrine (thus, ZAFFARONI, Op. cit., pp. 619 to 620; VELASQUEZ, Op. cit., pp. 584 to 588; [Name22], Santiago: Criminal Law General Part, Barcelona, Promociones y Publicaciones Universitarias S.A., 1990, pp. 720 to 724; [Name23], Enrique: Principles..., p. 280) and, to the extent that it soundly rationalizes the application of substantive law based on the axiom that the essence of crime is the injury to a protected legal interest, it is adopted by the undersigned </span>(Third Chamber, v. 943-98, of 16:16 hrs. on September 29, 1998). In the line formulated in that resolution, the criterion of the courts of our country is practically settled that, for purposes of establishing the existence of a unity of action, it is as important to determine the purpose that motivated the author's conduct as the implications derived from the structure of the criminal type involved. In the opinion of this chamber, the challengers make an error by ignoring these considerations in their argument. First, the analysis of the final factor is mistaken. The purpose, for these purposes, cannot be alien to the punished crime; in this case, the use of a false document. Once the existence of the crime is proven, it must be clear that the purpose of the defendant was to affect public faith by using false documents. The appellants, however, refer to other purposes related to a crime of fraud against the public treasury that was not even charged and to an obtaining of a pecuniary benefit that is not related to the core of the reproach made against the accused. For these purposes, the purpose of defrauding the tax authorities is as irrelevant as the objective that the defendant sought to satisfy with the money obtained; in both cases, these are legally inconsequential purposes, due to their merely subjective nature. They are personal objectives alien to the analysis of the action from a legal point of view, the only one that can be of interest to establish how the crimes committed concur. The second error is in leaving aside the normative factor. Article 372 of the Penal Code provides that <span style="font-family:Arial; font-style:italic">"Whoever makes use of a false or adulterated document shall be punished with one to six years of imprisonment."</span> That legal provision describes a conduct that is consummated upon making use of the document; when this is materialized, the action ends, and cannot constitute a unity with a subsequent event. The agent's purpose alone does not have the virtue of giving unity to a series of materially unconnected events. The vote of the Third Chamber of the Supreme Court of Justice cited by the appellants does not concern the matter under review, but rather refers to the indicators that allow distinguishing a continued crime from a material concurrency of criminal conducts. However, a fragment of it touches on a topic of mere legal rationality, and therefore reinforces what this court maintains here. The Chamber states: <span style="font-family:Arial; font-style:italic">"What is the criterion that allows differentiating between a continued crime and a material concurrence of crimes? This Chamber considers that it must consist in that the purpose pursued by the author, in relation to the legal interests they are affecting with their actions, is incompatible with the nature of the material concurrence. </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Otherwise, one would arrive at the absurdity that the habitual author of robberies, for example, would have the opportunity to unite with their 'purpose' (the deliberate habituality in robbery) events with no other relationship among them, which correspond to the penalty for real or material concurrence of crimes and not that of a single continued crime</span><span style="font-family:Arial; font-style:italic">: it would be absurd because it would unfairly favor the one who manifests greater de facto contempt for patrimonial legal interests, given their habituality or recidivism, being that the figure of the continued crime is a sui generis exception to the rules of material concurrence, so much so that the law provides that it is only applicable if patrimonial legal interests are affected. Hence, the doctrine indicates that the application of the continued crime is subject to subjective and objective criteria. In this sense, [Name8] indicates that: 'Initially, one starts from a subjective criterion: the unity of the author's designs (the bank teller who, determined to gather a specific amount of money, procures it by extracting smaller sums from the cash box on different occasions). </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">But, if we conformed to that criterion to determine dependence, we would grant the author the unjust opportunity to unite with their design the most disparate events, deserving of the penalty for concurrence, and not that of a single crime, for which reason we must complete it with objective criteria</span><span style="font-family:Arial; font-style:italic"> [...]' [Criminal Law General Part, Editorial Astrea, Buenos Aires, 1988, pp. 241 to 242]" </span>(Third Chamber, v. 721-01, of 9:20 hrs. on July 20, 2001). Reiterating that the central topic addressed by the Chamber in that resolution is very different from the one at hand, the fact that the appellants bring it up nonetheless serves to reaffirm the following: it is not prudent to make the determination of whether one or several actions were incurred dependent on the mere will of the author. The matter is a legal one, and the content of the infringed norm (normative factor) cannot be ignored. The appellants make a citation from the judgment of the lower court that this chamber deems taken out of context. To understand what the trial court expressed, it is necessary to expand the transcription. It stated: <span style="font-family:Arial; font-style:italic">"</span><span style="font-family:Arial; font-style:italic; text-decoration:underline">The actions concur materially; in total, false data were inserted into thirty-two documents</span>, which determines their falsehood, of which the defendant [Name1] had full knowledge, properly of the false content, as they corresponded to a contrived scheme to distort reality in order to benefit the companies and prejudice the Public Treasury, that is, deceptive acts motivated by the intent of unjust profit were executed, with which the tax oversight bodies were induced into error and produced a prejudice to the Public Treasury, because finally, although a tax assessment or determination has not been made, the truth is that less tax was declared, which arises as a logical and inescapable consequence, since the actions led to a decrease in gross income and the consequent decrease in the tax burden. This generated affectation is, in turn, a direct consequence of the error into which the recipient of the operations was induced, that is, the institution that by law is responsible for the control, verification, and audit of tax obligations, by making it believe that payments for professional services had been made to Ms. [Name5]. Certainly, the crime of 'Fraud against the Public Treasury', provided for in Article 92 of the Code of Tax Rules and Procedures, which is a Tax Defraudation, a criminal type of a special nature, was not charged, which was dismissed in the preparatory investigation conducted by the Public Prosecutor's Office, because this criminal type establishes within the objective elements that the amount of the defrauded quota must exceed five hundred base salaries. However, what has been indicated up to here reveals that, as material actions, <span style="font-family:Arial; font-style:italic; text-decoration:underline">it is not possible to distinguish between the use of a false document and the deception aimed at obtaining a pecuniary benefit; in this case, there is a single action from a natural or physical point of view</span>" </span>(verdict, pp. 131 and 132, our emphasis). At least two conclusions can be drawn from what the court stated in that fragment: <span style="font-family:Arial; font-weight:bold">i)</span> that it is clear that there were thirty-two distinct criminal actions configuring uses of a false document; <span style="font-family:Arial; font-weight:bold">ii)</span> that, in its judgment, between the use of a false document (each one of them) and the deception of the tax authorities with pecuniary consequences, a single action is constituted <span style="font-family:Arial; font-weight:bold; font-style:italic">from a natural or physical point of view</span>. It is almost unnecessary to say, because it is widely accepted, that doctrine has evolved to detach itself from merely natural or physical considerations when establishing the unity of action. Furthermore, even if one assumed that the trial court appreciates an ideal concurrence between conducts—which, in the opinion of this chamber, is not the case—it would be, at most, between each falsehood and each verified fraud against the public treasury, a posture that is otherwise absurd, considering that, as already stated, the defendant was not convicted of any fraud. The trial court was far from giving rise to the challengers' interpretation, that the interest in defrauding that the defendant maintained during the five years examined constitutes a unity and therefore they concur ideally, or that the falsehoods committed each year should be considered unitarily. Neither is the prejudice caused to the tax authorities at the end of each income period what sets the term of each action, as suggested; the criminal type applied to the defendant punishes the use of the document, regardless of when the prejudice is materialized, at the end of the entire criminal scheme. If along the way several documents were falsified to achieve the unlawful objective, the law provides that each conduct must be sanctioned independently. For the foregoing, the reproach is without merit.

<span style="font-family:Arial; font-weight:bold">VIII.- </span>As the <span style="font-family:Arial; font-weight:bold">thirty-fourth claim, </span>the illegitimate evidentiary incorporation of a telephone recording is alleged. The challengers maintain that the incorporation of the recording made by Ms. [Name5] violated the rights to privacy, freedom, secrecy of communications, and legality with respect to their client, since the provisions of Law on Registration, Seizure and Examination of Private Documents and Intervention of Communications, number 7425, were not complied with. Ms. [Name5] did not ask the defendant for authorization to record the conversation, which invalidates the evidence. The Public Prosecutor's Office introduced the evidence, alleging that the defendant had coerced Ms. [Name5], but it was demonstrated that no crime was committed through said recording. There is a contradiction in the court, for affirming that the recording was made due to the "alleged commission of a crime," when the defendant was acquitted of the crime of coercion. Article 29 of Law 7425 only allows recording in the presence of the commission of a crime, not for the alleged commission.

The exception in the rule refers to crimes committed during the course of communication that are regulated by Law 7425, meaning those that allow the intervention of communications. In the **first ground** of her appeal, the defendant [Name1] also claims that the conviction lacks reasoning with respect to the recording of the telephone call. She relies on articles 142 and 363(b) of the Code of Criminal Procedure; 39 of the Political Constitution; 8 of the American Convention on Human Rights; and the jurisprudence of the Inter-American Court of Human Rights. She asserts that during the trial, the defense objected to the recording of the call made on July 3, 2014, which, in her opinion, was not authorized by the Law on the Recording, Seizure, and Examination of Private Documents and Intervention of Communications (Law 7425). On the contrary, the recording of a telephone call is prohibited by article 198 of the Penal Code. A private conversation cannot be secretly recorded, as [Name5] did. Since the call recording was illegal, it could not be used as evidence. Article 24 of the Political Constitution establishes the principle of the inviolability of private communications, which has as its only exception what is provided in article 29 of Law 7425. That exception occurs when a crime is being committed. The appellant considers that what determines the legality of the recording is not an *a posteriori* analysis of its content, but rather whether, before it was made, one was legitimately entitled to record due to the commission of a crime. Thus, she considers that the judgment lacks reasoning by ruling on the legality of the recording made by [Name5]. To justify its decision, the trial court invokes the principle of freedom of proof, even though this presupposes that the evidence is legal, which is not the case with a recording that contravenes article 198 of the Penal Code and does not fall within the exception of article 29 of the Law on the Recording, Seizure, and Examination of Private Documents and Intervention of Communications. Recourse is also made to article 28 of the Political Constitution, an indeterminate norm that does not justify the recording of a telephone conversation and has no relation to the authorization of conversations without consent. The constitutional article related to oral communications is article 29, which establishes their inviolability as a principle, except as provided by law, such as the exception contemplated in article 29 of Law 7425. The judgment states that Mrs. [Name5] had received previous insulting calls. But when she decided to record, she knew she was speaking with the accused and not with the people who were calling to insult, and she did not justify the recording based on the insulting calls. The judgment states that the accused asked Mrs. [Name5] that she should retract what she told the journalist [Name24]. However, this was not the reason Mrs. [Name5] decided to record the conversation; before the recording, she had not been told she had to retract, so the justification was not prior to the recording; additionally, such a request does not imply the commission of a crime. It is argued that there was a complaint filed before the prosecutor's office and that the case had been reopened, but this did not authorize the recording of the conversation, in accordance with article 29 of the Law on the Recording, Seizure, and Examination of Private Documents and Intervention of Communications. The trial court maintains that, based on what was said in the conversation, the accused was charged with the crime of coercion. This involves the error of making the legality of the recording depend on the Public Prosecutor's Office's decision to charge. Furthermore, what determines the legality of the recording is that one was legitimately entitled to record before it occurred, not the result of an *a posteriori* analysis. Likewise, it fails to consider that the defendant was acquitted of that crime. Given the acquittal on grounds of doubt, making an interpretation favorable to the defendant, coercion could not be considered to justify the recording. From the statement of [Name5], it cannot be deduced that, before the call, she had suffered any type of coercion. The recording of the second call could not be justified based on the first call the accused had with Mrs. [Name5]. It must be taken into account that the accused denied, during the trial, having engaged in intentional conduct, and the trial court deduced this intent from the recording. As the *a quo* court itself recognized, the recording of the communication played an essential role in the issuance of the conviction. She therefore requests that the ground be granted and the judgment annulled in its entirety, including what pertains to the civil action and costs; that, for procedural economy, the recording of July 3, 2014, be annulled and acquittal and dismissal of the compensatory civil action be ordered; likewise, that the State be ordered to pay costs; in the alternative, that the case be remanded. **Given their thematic unity, the grounds referred to in this recital will be examined jointly, and they are hereby granted, with the consequences to be stated.** As the appellants correctly point out, article 24 of the Political Constitution of the Republic of Costa Rica states: *"The right to privacy, freedom, and secrecy of communications is guaranteed. Private documents and written, oral, or any other type of communications of the inhabitants of the Republic are inviolable. However, a law, whose approval and amendment shall require the votes of two-thirds of the Deputies of the Legislative Assembly, shall establish in which cases the Courts of Justice may order the seizure, recording, or examination of private documents, when it is absolutely indispensable to clarify matters submitted to their cognizance. / Likewise, the law shall determine in which cases the Courts of Justice may order that any type of communication be intervened and shall indicate the crimes in the investigation of which the use of this exceptional power may be authorized and for how long. It shall also indicate the responsibilities and sanctions incurred by officials who illegally apply this exception. Judicial resolutions covered by this norm must be reasoned and may be executed immediately. Their application and control shall be the non-delegable responsibility of the judicial authority. / The law shall establish the cases in which the competent officials of the Ministry of Finance and the Office of the Comptroller General of the Republic may review accounting books and their annexes for tax purposes and to control the proper use of public funds. / A special law, approved by two-thirds of the total number of Deputies, shall determine which other organs of the Public Administration may review the documents that such law indicates in relation to the fulfillment of their regulatory and oversight competences to achieve public purposes. Likewise, it shall indicate in which cases such review is appropriate. / Correspondence that has been stolen, as well as information obtained as a result of the illegal intervention of any communication, shall not produce legal effects."* For its part, article 29 of the Law on the Recording, Seizure, and Examination of Private Documents and Intervention of Communications, Law 7425 of August 9, 1994, states: *"There shall be no illegitimate intrusion when the holder of the right grants their express consent. If there are several holders, the express consent of all must be obtained. This consent shall be revocable at any time. / When a person who participates in an oral, written, or other type of communication, through which a crime classified by law is committed, records or keeps it, this may be presented by the offended person before the judicial or police authorities for the corresponding investigation. / If the communications indicated in the preceding paragraph have served the jurisdictional authorities to initiate criminal proceedings, the recordings of such communications or the texts that transcribe them may be presented as evidence before the judge in the corresponding trial."* From the content of both legal provisions, it must be concluded, for the purposes relevant here, that the recording of a conversation is only legitimate when a crime is committed through it, in which case the offended person may present it to the authorities. It should be clarified that it can be any crime and not necessarily one of those for which the intervention of communications is permitted under Law 7425, as the defense appellants suggest (see in this regard, from the Third Chamber, ruling 48-01, at 11:00 a.m. on January 12, 2001). The fact is that if the hypothesis of the existence of a crime is not met, the recording of the conversation has no legal protection and, consequently, could not be used in criminal proceedings, by virtue of the limitation imposed by articles 181 and 182 of the Code of Criminal Procedure on the use of illegal evidence. One could even incur in the conduct contemplated in article 198 of the Penal Code, which states: *"Whoever records, without their consent, the words of another or others not intended for the public, or who, through technical procedures, listens to private manifestations not addressed to them, shall be punished with imprisonment of one to three years, except as provided in the Law on Recording, Seizure, and Examination of Private Documents and Intervention of Communications. The same penalty shall be imposed on whoever installs apparatus, instruments, or their parts, for the purpose of intercepting or preventing oral or written communications, whether or not they achieve their purpose."* In the case under examination, the recording of the conversation held by the accused with Mrs. [Name5] on July 3, 2014, starting at 3:45 p.m., which was recorded by the latter without the consent of the former, is openly illegal, since a crime was not being committed through it, as required by the rule just transcribed. In the opinion of this chamber, the arguments used by the trial court to justify its validity are not acceptable. It is said that the inclusion of the recording finds protection in the freedom of proof. However, the procedural legislation states in this regard: *"Elements of proof shall only have value if they have been obtained by a lawful means and incorporated into the procedure in accordance with the provisions of this Code"* (article 181 of the procedural code); likewise that: *"The facts and circumstances relevant to the correct resolution of the case may be proven by any permitted means of proof, except by express prohibition of the law"* (article 182 *ibidem*). Thus, freedom of proof finds an impassable limit in the legality of the obtaining and incorporation of the means of proof. In this particular case, as indicated, the legality of obtaining the recording depends on the commission of a crime through the communication, a requirement absent here. The trial court also argues that Mrs. [Name5] had previously been called to insult her, without explaining why this would allow the requirement imposed by law—that a crime be committed through the specific call being recorded—to be bypassed. It is also said that at the time of the call, a complaint had been filed with the prosecutor's office, which even led to accusations of the alleged commission of a crime. However, a simple reading of article 29 of the Law on the Recording, Seizure, and Examination of Private Documents and Intervention of Communications makes it evident that the requirement for the validity of the recording is not the filing of a complaint nor the alleged commission of a crime, but its effective commission during the communicative exchange; the former is ruled out due to its notorious incompatibility with the letter of the rule, and the latter, due to the dangerous indeterminacy that would be involved in speaking of the crime in terms of presumption: presumed for whom? For the person recording the communication? For the prosecutor? Assessed at what moment? Before the call or *ex post*? In some way, the accused, in her appeal, also introduces a degree of subjectivity into the analysis of the article, by asserting that the determination of the existence of the crime must be established by the recipient before receiving it. This also does not follow from the letter of the legal provision. The legitimacy of the recording does not depend on the good judgment shown by the person participating in the conversation in assessing its unlawfulness; even less so, on the correctness of their speculation about the eventual content of the call they have just received; nor on their good intention. Theoretically, nothing excludes a bad-faith interlocutor from recording a conversation in which the other commits a crime; under such conditions, the initial intention does not inhibit the validity of the recording. What matters, purely and simply, according to the legal text, is that a crime is committed through the communication. The fact of the matter is that here the crime did not exist, since in the very judgment being appealed, the defendant was acquitted of the coercion that was attributed to her as having been committed through the call. Thus, if the evidence is illegitimate, it could not be used at trial. Where we must disagree with the appellants is regarding the essential character attributed to the recording as part of the evidentiary element; on this, we even disagree with the opinion of the lower court itself. The fact is that the fundamental statements made by the accused in the conversation that was recorded were presented by Mrs. [Name5] in her testimony at trial. In addition to this, the rest of the evidentiary material analyzed by the *a quo* court was added. The way in which the evidence implicated the defendant [Name1], without needing to resort to the recording, has already been set forth by this chamber in recital V, to which reference is made to avoid unnecessary repetition. Dispensing with this element of proof does not change the conclusion regarding the defendant's responsibility, neither criminal nor civil. Consequently, what must be ordered is solely the ineffectiveness of the recording made by [Name5] of the conversation she held with the accused [Name1] on July 3, 2014. In these terms, the grounds assessed here are granted.

**IX.-** As the **thirty-fifth ground**, a lack of reasoning in the imposition of the sentence is alleged. The trial court provided a merely moralistic reasoning, contrary to the principles of proportionality, rationality, humanity, and resocialization of the penalty. The *a quo* court is contradictory when it takes into account the defendant's public service to impose the sanction, but rejects the social harm, alleging that she committed the criminal acts as a private citizen and not as a public official. The trial court did not consider the defendant's personal aspects, as she is seventy years old and has cooperated with the process. Additionally, she has no pending prosecutions. In the **sixth claim** of the appeal filed by the defendant, a lack of reasoning for the imposed penalty is invoked, under articles 142 and 363(b) of the Code of Criminal Procedure, 71 of the Penal Code, and 39 of the Political Constitution. The judgment indicates that the parameters for setting the penalty for each crime are the same, so it provides a global reasoning. But then, the thirty-two crimes are used to ground the penalty for each one of them, instead of doing so independently, as corresponds in a material joinder of offenses. Each act becomes an aggravating factor for the other thirty-one, which results in a disproportionate penalty of three years for each one, ninety-six for the thirty-two, and nine, by application of the joinder rules. She considers that the arguments made in the second, third, fourth, and fifth grounds of her appeal must be taken into account, which, in her opinion, lead to a series of acts for which a conviction was handed down—and which served as a basis for imposing a three-year penalty for each crime—having to be annulled, which would have an impact on the amount of the sanction. Also, the damage to the treasury is considered globally, instead of assessing each damage independently. Thus, the damage caused by each one is not only used to set its penalty, but also that of the others. Although it does not say so expressly, the judgment uses report 233-DEF-A-425-16 from the Judicial Investigation Agency, but does not analyze it, instead making a global reference. It does not even consider that it includes taxes corresponding to the years two thousand four to two thousand eight, for which a definitive dismissal was ordered. Regarding the declarations of the company Inversiones Adrofer Sociedad Anónima in 2010, she was convicted for acts 7, 9, and 10 to a penalty of three years in prison for each, based on the amount of tax fraud. But according to the report, only one hundred thousand colones were left unpaid in 2010 by this company. She was convicted on act 16 for a declaration from 2011, but the report does not state an amount left unpaid. She was also convicted on act 17 for the 2011 declaration of the company Consultoría ORS y Asociados Sociedad Anónima, but the report does not indicate that taxes were left unpaid by it. Regarding the 2010 declarations of Inversiones Beyof Sociedad Anónima, she is convicted on act 12, but the report states that no tax payment would have been due that year. Even the amounts that might have been left unpaid, totaling three million two hundred ninety-seven thousand nine hundred ninety-nine colones and thirty cents, are not high, taking into account that this corresponds to the years two thousand nine to two thousand thirteen, considering the number of acts and the minimum amount for the crime of tax fraud under article 92 of the Tax Code of Rules and Procedures, which is five hundred base salaries—many times the amount that might have been left unpaid in this matter. The judgment recognizes that the act under trial is not a crime of tax fraud, but gives importance to the tax fraud, without considering the parameters established regarding the amount required for the existence of such a crime. The damage to the treasury is not even the object of this process, since it corresponds to an administrative sanction. The judgment did not consider the payments made to compensate for the unpaid taxes as a positive aspect. Rather, the rectifications were assessed to justify a higher penalty, stating that a maneuver was intended to free oneself from responsibility. But this is unfounded because, even if the tax amounts are corrected, taxes must be paid in accordance with the corrective declaration, without the documentation of the original declaration, which remains in the database, being eliminated. It is also not considered that the thirty-two convictions were for uses of private documents and not public ones, which implies a lesser wrongfulness, according to the Penal Code. The illegality of the recording used by [Name5] prevents it from being taken into account for setting the penalty. Regarding the recording, assessments related to morality are made. The trial court considered the defendant's request to [Name5] that she go to unsubscribe before the General Directorate of Direct Taxation; however, this does not imply any crime. The consideration of the defendant's academic background and condition must be related to the amounts that might have been left unpaid. The trial court says it takes into consideration the defendant's conditions, such as her age, that she has a spouse and children who depend on her economically, and that she has no prosecutions. However, it does not state how they are taken into account. The deprivation of liberty of a seventy-year-old person is especially serious, considering her physical limitations. The defendant has serious ailments: replacement of both hips and breast cancer. She has already suffered severe consequences due to the acts, such as having to resign from the Office of the Ombudsman. She therefore requests that the ground be granted and the penalty for all crimes be annulled, ordering a remand for a new trial. **The thematic unity of both objections allows them to be resolved jointly, and they must be granted.** In the opinion of this appellate chamber, the trial court incurred an incorrect application of substantive law when setting the sanction. This is related to the rules established in the Penal Code for punishing a material joinder of offenses. In this regard, that legal body states: *"For the material joinder, the penalties corresponding to all the crimes committed shall be applied, and may not exceed triple the highest term, and in no case fifty years of imprisonment. The Judge may apply the penalty corresponding to each punishable act, provided this is more favorable to the defendant"* (article 76 of the Penal Code). As can be seen, when a material joinder is verified, the punishment for each punishable act must be established independently of the others, which is extremely important due to the limit the law imposes of not exceeding triple the most severe punishment. In this case, throughout the reasoning on the penalty, it is observed that the trial court considered, as a determining factor, the plurality of acts committed to punish each of the crimes. In this way, the assessment of each act was increased by the consideration of the others and, as a result, the individual punishment was inflated. This is seen when the *a quo* court states: *"Thus, it is held that, in this particular case, the convicted here, [Name1], committed not one, nor a small number, but a large number of serious illegal acts – ninety-six uses of false documents in total – and over a long period of five years – from 2009 to 2014 – (not in a day, nor during a month, nor several months, nor even a year), in her unbridled ambition to increase the assets of her three companies, and therefore her own, without caring about the interests, the assets of the Treasury, of the State, ultimately of the people; that was the motive that determined her to commit the illegal actions"* (judgment, pp. 216 and 217). It later reiterates the argument, adding: *"The injury to the legally protected interest, in this case public faith, is extremely serious, as it was violated on ninety-six occasions, in a concrete manner, as it was not limited to ninety-six attempts, but rather there were ninety-six results, such as circumventing the treasury that many times, that is, the State's tax collection, and by an amount of millions which, although it could not be accurately determined, was estimated by the judicial experts as stated in the respective report already referred to, and indeed it amounted to several million colones, not hundreds, nor thousands"* (p. 218). It is worth noting that the number of acts considered there was subject to rectification by the lower court, through a clarifying resolution at eight o'clock on September 12, 2019, in which it was indicated, as deduced from the rest of the ruling, that the conviction was for thirty-two crimes of use of a false document and not for ninety-six. In any case, what is clear is that the importance of each act was weighed by adding the weight of the totality, thereby failing to apply the provisions of article 76 of the Penal Code, consequently affecting the sanction for each of the thirty-two crimes tried. For the foregoing reasons, the grounds must be granted, annulling the penalty imposed for all the acts tried, and the matter must return to the *a quo* court so that, with a new panel, it may rule on the issue in accordance with the law.

**X.-** As the **thirty-sixth ground**, a lack of standing to sue of the Office of the Attorney General is invoked, as it did not have the authority to bring the compensatory civil action, according to the principle of legality and article 16 of the Code of Criminal Procedure. This does not involve one of the crimes that permit its participation, since the charge was use of a false document. The Office of the Attorney General seeks to collect tax charges that were paid to the Administration within an administrative procedure. Furthermore, there is no real damage caused by a criminal act; the Office of the Attorney General alleged material damage and social damage; the material damage consists of the uncollected tax charges, which have already been paid.

The criminal process is not the avenue for collecting uncollected taxes. A social harm is alleged without justification. There is no affectation of a collective good. </span><span style="font-family:Arial; font-weight:bold">No ha lugar. </span><span style="font-family:Arial">The lack of standing of the Procuraduría General de la República, in the civil sphere, is upheld, because the crimes for which the defendant [Nombre1] was convicted are not within the cases set forth in Article 16 of the Código Procesal Penal. The error in the argumentation begins to be seen from the title of the legal provision, which clearly indicates that it does not refer to the civil action. The legal provision in question states: </span><span style="font-family:Arial; font-style:italic">“Criminal Action / The criminal action shall be public or private. When public, its exercise shall correspond to the Ministerio Público, without prejudice to the participation that this Code grants to the victim or to citizens. In crimes against the security of the Nation, public tranquility, the public powers, the constitutional order, the environment, the maritime-terrestrial zone, the public treasury, the duties of public office, illicit tax offenses and those contained in the Ley de aduanas, Nº 7557, of October 20, 1995; the Ley orgánica del Banco Central de Costa Rica, Nº 7558, of November 3, 1995 and the Ley contra el enriquecimiento ilícito de los servidores públicos, Nº 6872, of June 17, 1983, the Procuraduría General de la República may also directly exercise that action, without subordinating itself to the actions and decisions of the Ministerio Público. In matters initiated by action of the Procuraduría, it shall be considered a party and may exercise the same remedies that this Code grants to the Ministerio Público.” </span><span style="font-family:Arial">Thus, since the article refers to the criminal action, it could hardly be invoked to determine the standing of the Procuraduría General de la República to exercise the civil action. It is Article 3 of the Ley Orgánica de la Procuraduría General de la República that states that </span><span style="font-family:Arial; font-style:italic">“The powers of the Procuraduría General de la República are: / </span><span style="font-family:Arial; font-weight:bold; font-style:italic">a)</span><span style="font-family:Arial; font-style:italic"> To exercise the representation of the State in matters of any nature, which are processed or must be processed in the courts of justice […].”</span><span style="font-family:Arial"> Therefore, if in this case the State considered itself harmed by the accused acts, it had the possibility of exercising the civil action (Article 37 of the Código Procesal Penal), which it had to do, as indicated, through the Procuraduría. Likewise, that body has the power to </span><span style="font-family:Arial; font-style:italic">“ […] </span><span style="font-family:Arial; font-weight:bold; font-style:italic">d)</span><span style="font-family:Arial; font-style:italic"> Intervene in criminal cases, in accordance with what is provided for this purpose by this law and the Código de Procedimiento Penales […],” </span><span style="font-family:Arial">which, in relation to the civil action for social harm, refers us to Article 38 of the procedural code which states: </span><span style="font-family:Arial; font-style:italic">“Civil action for social harm / The civil action may be exercised by the Procuraduría General de la República, when dealing with punishable acts that affect collective or diffuse interests.” </span><span style="font-family:Arial">Thus, no problem of active standing of that state body is appreciated</span><span style="font-family:Arial; font-style:italic">.</span><span style="font-family:Arial"> It is also stated that the Procuraduría seeks to collect charges already paid. If so, the appellants should not only have raised this as an argument, but also provide the evidentiary basis, since, being a matter of a civil nature, Article 41 of the Código Procesal Civil governs, which provides: </span><span style="font-family:Arial; font-style:italic">“</span><span style="font-family:Arial; font-weight:bold; font-style:italic">41.1 Burden of proof.</span><span style="font-family:Arial; font-weight:bold; font-style:italic"> </span><span style="font-family:Arial; font-style:italic">The burden of proof falls: […] </span><span style="font-family:Arial; font-weight:bold; font-style:italic">2.</span><span style="font-family:Arial; font-weight:bold; font-style:italic"> </span><span style="font-family:Arial; font-style:italic">On whoever opposes a claim, regarding the facts that impede, modify, or extinguish the plaintiff's right […].” </span><span style="font-family:Arial">Thus, if a fact extinguishing the obligation is alleged, such as payment, the evidence should have been provided, which the appellants do not do. In any case, since the civil condemnation was ordered in the abstract, nothing would prevent the respective exception from being asserted in the civil venue, if those instances are reached. The lack of justification for social harm is also alleged, when there was no affectation of a collective good. On that point, the rejection of the challenge is imposed for lack of aggrievement (Article 439 of the Código Procesal Penal), since the appealed judgment declared the social harm item without merit (no ha lugar). It is anticipated, however, that the issue will be addressed later, by virtue of arguments different from those argued by the appellants here (see Considerando XIV). For all the foregoing, the reproach is rejected (sin lugar).</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:150%"><span style="width:36pt; display:inline-block"> </span><span style="font-family:Arial; font-weight:bold">XI.- APPEAL BY THE DEFENDANT [Nombre1]</span><span style="font-family:Arial; font-weight:bold; -aw-import:spaces"> </span><span style="font-family:Arial">. As noted in previous considerandos, the defendant also appealed the judgment rendered in this process. The </span><span style="font-family:Arial; font-weight:bold">first, third, and sixth grounds</span><span style="font-family:Arial"> of her appeal</span><span style="font-family:Arial; font-weight:bold"> </span><span style="font-family:Arial">were already addressed previously, when resolving the arguments of her defense counsel, for reasons of thematic connection. The claims that have not been the subject of a pronouncement are those set forth below. As a </span><span style="font-family:Arial; font-weight:bold">second reproach, </span><span style="font-family:Arial">a lack of legal grounding and of reasoning for the penalty, in the judgment, is alleged regarding the convictions for use of a false document related to the sworn statements D-101 and the informative statements D-151. The appellant considers Articles 142 and 363, subsection b) of the Código Procesal Penal; 71 and 372 of the Código Penal; 39 of the Constitución Política; 8 of the American Declaration on Human Rights and the jurisprudence of the Inter-American Court of Human Rights to be violated. She points out that the judgment incurs in a lack of grounding, because in the only reference it makes in this regard, it qualifies the acts attributed to the defendant as use of a false public document, which it does without providing any justification. She argues that this is important because the crime of use of a private document is only possible when facing a material falsehood, not one of an ideological nature. She states that, with respect to the D-101 and D-151 statements of the companies Edificio Adrofer Sociedad Anónima, Consultores ORS y Asociados Sociedad Anónima, and Inversiones Beyof Sociedad Anónima, the conviction was not for material falsehood, but ideological, since it was affirmed that what was stated in them was not true, particularly regarding the payments made to [Nombre5] . The claim refers, specifically, to the following acts and statements: </span><span style="font-family:Arial; font-weight:bold">1)</span><span style="font-family:Arial"> D-151 number [Identificacion1], </span><span style="font-family:Arial; font-weight:bold">2)</span><span style="font-family:Arial"> D-151 number [Identificacion2], </span><span style="font-family:Arial; font-weight:bold">4)</span><span style="font-family:Arial"> D-101 number [Identificacion3], </span><span style="font-family:Arial; font-weight:bold">5) </span><span style="font-family:Arial">D-101 number [Identificacion4], </span><span style="font-family:Arial; font-weight:bold">7)</span><span style="font-family:Arial"> D-151 number [Identificacion5], </span><span style="font-family:Arial; font-weight:bold">8)</span><span style="font-family:Arial"> D-151 number 15113003880516, </span><span style="font-family:Arial; font-weight:bold">10)</span><span style="font-family:Arial"> D-101 number [Identificacion6], </span><span style="font-family:Arial; font-weight:bold">11)</span><span style="font-family:Arial"> D-101 number [Identificacion7], </span><span style="font-family:Arial; font-weight:bold">12)</span><span style="font-family:Arial"> D-101 number [Identificacion8], </span><span style="font-family:Arial; font-weight:bold">14)</span><span style="font-family:Arial"> D-101 number [Identificacion9], </span><span style="font-family:Arial; font-weight:bold">16)</span><span style="font-family:Arial"> D-101 number [Identificacion10], </span><span style="font-family:Arial; font-weight:bold">17)</span><span style="font-family:Arial"> D-101 number CED12, </span><span style="font-family:Arial; font-weight:bold">18)</span><span style="font-family:Arial"> D-151 number CED13, </span><span style="font-family:Arial; font-weight:bold">21)</span><span style="font-family:Arial"> D-101 number CED14, </span><span style="font-family:Arial; font-weight:bold">22)</span><span style="font-family:Arial"> D-101 number CED15, </span><span style="font-family:Arial; font-weight:bold">24)</span><span style="font-family:Arial"> D-151 number CED16, </span><span style="font-family:Arial; font-weight:bold">27)</span><span style="font-family:Arial"> D-101 number CED17, </span><span style="font-family:Arial; font-weight:bold">29)</span><span style="font-family:Arial"> D-151 number CED18, and </span><span style="font-family:Arial; font-weight:bold">30)</span><span style="font-family:Arial"> D-151 number CED19. In none of these statements is the conviction for material falsehood, but rather ideological, since it is affirmed that what was stated in them is not true, particularly regarding the payments made to [Nombre5] . This is relevant, since the use of a private document is not punishable when the falsehood is of an ideological nature. In a sole reference, on page 123 of the judgment, it is affirmed that these were uses of a public document, without any analysis or justification. The consideration that these were uses of a public and not private document has no legal basis, since the documents were not issued by a public official or by a notary public. The Código Procesal Civil in force at the time of the acts, in its Article 369, defined what public documents and instruments were, a definition maintained in the new legal body on the matter, in Article 42.2. There is a consensus that, by exclusion, documents that are not classified by law as public are deemed private documents. This idea is reflected in Article 45.3 of the new Código Procesal Civil. Hence, the D-101 and D-151 statements must be considered private documents. The use of a false document must be understood as related to the crimes contemplated between Articles 366 and 371 of the Código Penal, which is important in that, regarding private documents, the punishable falsehood can only be material. This also has importance regarding the following acts and statements: </span><span style="font-family:Arial; font-weight:bold">3)</span><span style="font-family:Arial"> D-151 number [Identificacion19], </span><span style="font-family:Arial; font-weight:bold">6)</span><span style="font-family:Arial"> D-101 number [Identificacion20], </span><span style="font-family:Arial; font-weight:bold">9)</span><span style="font-family:Arial"> D-151 number [Identificacion21], </span><span style="font-family:Arial; font-weight:bold">13)</span><span style="font-family:Arial"> D-101 number [Identificacion35], </span><span style="font-family:Arial; font-weight:bold">15)</span><span style="font-family:Arial"> D-101 number [Identificacion22], </span><span style="font-family:Arial; font-weight:bold">19)</span><span style="font-family:Arial"> D-151 number [Identificacion23], </span><span style="font-family:Arial; font-weight:bold">20)</span><span style="font-family:Arial"> D-151 number [Identificacion24], </span><span style="font-family:Arial; font-weight:bold">23)</span><span style="font-family:Arial"> D-101 number [Identificacion25], </span><span style="font-family:Arial; font-weight:bold">25)</span><span style="font-family:Arial"> D-151 number [Identificacion26], </span><span style="font-family:Arial; font-weight:bold">26)</span><span style="font-family:Arial"> D-151 number [Identificacion27], </span><span style="font-family:Arial; font-weight:bold">28)</span><span style="font-family:Arial"> D-101 number [Identificacion28], </span><span style="font-family:Arial; font-weight:bold">31)</span><span style="font-family:Arial"> D-151 number [Identificacion29], and </span><span style="font-family:Arial; font-weight:bold">32)</span><span style="font-family:Arial"> D-151 number [Identificacion30]. In these cases, the conviction was justified by material falsehood, by falsifying the signature of [Nombre5] . For each of these acts, a penalty of three years' imprisonment was imposed, but the consideration of severity was weighed based on the public or private nature of the document. The use of a false private document is less serious than that of a public one, adhering to the different valuation given to them by the Código Penal. This would also be related to the penalty regarding the first acts analyzed. Therefore, she requests that the ground be declared with merit (con lugar); that the convictions for acts 1, 2, 4, 5, 7, 8, 10, 11, 12, 14, 16, 17, 18, 21, 22, 24, 27, 29, and 30 be annulled; that, for procedural economy, the defendant be acquitted for those acts and, subsidiarily, that the conviction be annulled and a remand be ordered. She also requests that the penalty imposed for all crimes for which the conviction is to be maintained, including numbers 3, 6, 9, 13, 15, 19, 20, 23, 25, 26, 28, 31, and 32, be annulled and that, consequently, a remand be ordered for penalty determination. </span><span style="font-family:Arial; font-weight:bold">Sin lugar. </span><span style="font-family:Arial">Certainly, we must agree with the appellant when she indicates that the conviction made against her was for the use of thirty-two false private documents, not public ones. She falsified two types of documents: the Annual Declaration of Clients, Suppliers, and Specific Expenses (form D 151) and the Sworn Income Tax Declaration (form D 101). Both are self-assessment declarations, that is, designed to be completed by the declarant themselves, and therefore cannot hold the status of public documents that are today, as they were at the time the falsehoods were incurred, those prepared by public officials, with the forms of law and within the limits of their duties. The only citation in the ruling that speaks of public documents reads as follows: </span><span style="font-family:Arial; font-style:italic">“It was also not possible to establish the criminal responsibility of the accused in seven of the thirty-nine crimes of Use of a Public Document attributed to her in the accusation” </span><span style="font-family:Arial">(judgment, p. 123)</span><span style="font-family:Arial; font-style:italic">.</span><span style="font-family:Arial"> The issue was not developed, since evidently it was not intended to argue in favor of the nature of the falsified documents; that was not the context of the statement. Therefore, it is reasonable to think that the reference was a simple oversight by the adjudicating body. Now, from this private nature of the documents, it is intended to deduce the atypicality of the conduct consisting of preparing all those statements in which the falsehood was not of a material nature, with the argument that, when dealing with private documents, ideological falsehood is not typical. As a corollary, it is also intended to deduce the atypicality of the use of such documents. In the opinion of this Chamber, the interpretation is incorrect. Article 368 of the Código Penal indicates: </span><span style="font-family:Arial; font-style:italic">“Imprisonment of six months to two years shall be imposed on whoever makes, in whole or in part, a false private document or adulterates a true one, so that harm may result” </span><span style="font-family:Arial">(Article 368 of the Código Penal).</span><span style="font-family:Arial"> </span><span style="font-family:Arial">From this wording, it is deduced that the crime of falsifying private documents can refer to both the material and the intellectual aspects of the document, as the verb “make” can encompass both things. Something similar occurs with the crime of falsifying public and authentic documents in Article 366 of the same code, a norm that states: </span><span style="font-family:Arial; font-style:italic">“Whoever makes, in whole or in part, a false, public, or authentic document, or alters a true one, so that harm may result, shall be punished with imprisonment of one to six years. / If the act were committed by a public official in the exercise of their functions, the penalty shall be two to eight years.” </span><span style="font-family:Arial">The similarity between both provisions raises the question of the necessity of the criminal type of ideological falsehood in Article 367 of the Código Penal. If Article 366 already contemplates the falsehood of the intellectual content of the document, is Article 367 redundant? The answer that jurisprudence has given is negative. The precision made in the cited Article 367, which states: </span><span style="font-family:Arial; font-style:italic">“The penalties provided in the previous article are applicable to whoever inserts or has inserted in a public or authentic document false declarations, concerning a fact that the document must prove, so that harm may result,” </span><span style="font-family:Arial">is due to the particular nature of the public documents it regulates, and to the fact that these must be prepared by officials, to attest to certain events. To that extent, the typical “making” (by the official or another person) or the “having inserted” (exclusive action of a third party) can be verified in them; behaviors that, being diverse, justify a separate regulation. This need does not arise in private documents, which are only prepared by private individuals, to have effects between them or towards third parties, in certain hypotheses—without prejudice to the concurrence of cases of co-authorship or complicity when others participate—. Therefore, in the case of private documents, there is no specific article that contemplates the falsehood of their ideological aspects, without this implying that it is not included in the criminal type. This criterion has been upheld by the Sala Tercera de la Corte Suprema de Justicia, by indicating: </span><span style="font-family:Arial; font-style:italic">“As a grievance of the appeal for in iudicando defects filed by the defense of the accused [Nombre6], the non-observance of Articles 1, 30, and 359 of the Código Penal is alleged, since it considers that the conduct of their client does not constitute any crime, because the falsehood of the document prepared by him is reduced to its intellectual content, so in reality it is an ideological falsehood that, as it concerns a private document, must be declared atypical.- This Chamber considers that the claim is not admissible, because if our Código Penal distinguishes between 'material' falsehood and 'ideological' falsehood in public or authentic documents, this is precisely due to the legal nature of the document, which by its drafting, forms, and issuance by public officials within the limits of their duties, provides full proof—while not challenged as false—of the material existence of the facts that the public official affirms they themselves performed, or that occurred in their presence, in the exercise of their functions (cf. Articles 369 and 370 of the Código Procesal Civil). Therefore, the indicated distinction lacks meaning when dealing with private documents, to which, precisely because of their informality and because they are not issued by public officials in the exercise of their functions, nor are they enforceable erga omnes, the law only recognizes them as proving facts between the parties and in relation to third parties regarding the declarations contained therein, barring proof to the contrary, provided they have been judicially recognized or declared as recognized according to the legislation (cf. Article 379 of the Código Procesal Civil). This Chamber does not ignore that for Argentine doctrine (among which [Nombre25] is counted, cited by the appellant) ideological falsehood only constitutes a crime when dealing with public documents. However, this is because the structure of the criminal types contained in the Chapter on Falsification of Documents in General of their Código Penal is different from ours, which can be clearly corroborated by analyzing Articles 292 to 298 bis of their legal text. In the first of those norms, under the title of 'Material Falsification', whoever makes in whole or in part a false document or adulterates a true one, so that harm may result, is sanctioned, whether its nature is public or private (the only difference being the penalty provided for each case). Then, Article 293 of the Argentine text states that 'Ideological Falsity' must refer to public documents, but extending the punishment, by express exception, to two types of private documents, namely, medical certificates and conformed invoices. In view of the structure of these criminal types, the reasons why Argentine doctrine states that the Falsification of a private document is constrained to its materiality are clear, while ideological or historical falsehood—with the two expressed exceptions—is only possible regarding public documents, since extending the punishability of ideological falsehood to all other private documents would imply an analogical application of penal law, prohibited by the principle of legality (cf. [Nombre26], Omar and another: Código Penal y Leyes Complementarias, comentado, anotado y concordado, Buenos Aires, Editorial Astrea, 1987, pp. 988, 989, 991, and 992; SOLER, Sebastián: Derecho Penal Argentino, T. V, Buenos Aires, Tipográfica Editora Argentina, 1970, p. 349; FONTAN (sic) BALESTRA, Carlos: Derecho penal Parte Especial, Buenos Aires, Abeledo Perrot, 1978, pp. 654, 655, 659; CREUS, Carlos: Falsificación de documentos en general, Buenos Aires, Editorial Astrea, 1986, pp. 127 and 128). This is why the appellant fails to substantiate their grievance with the doctrine they use. Returning to the analysis of Costa Rican legislation and to provide further reasons on the application and interpretation of the criminal types under discussion (since the criterion stated herein modifies the prior jurisprudence of this Chamber, see, for example, Resolution Nº 114 of 8:25 a.m. on June 19, 1986), it must be noted again that Articles 357 and 358 of the Código Penal allude exclusively to public or authentic documents, the former being the genus and the latter the species of the former, whose application must be resolved in each case in accordance with the rules governing the concurrence of crimes. This is so, because unlike its counterpart in Argentine legislation, Article 357 does not allude expressly and exclusively to the 'materiality' of the document, but rather under the title of 'Falsification of public and authentic documents' states that: «Whoever makes, in whole or in part, a false, public, or authentic document, or alters a true one, so that harm may result, shall be punished with imprisonment of one to six years. If the act were committed by a public official in the exercise of their functions, the penalty shall be two to eight years» (underlining not in the original). Article 359 of the Código Penal provides that the crime of Falsification of private documents is incurred by whoever: «Imprisonment of six months to two years shall be imposed on whoever makes, in whole or in part, a false private document or adulterates a true one, so that harm may result» (underlining not in the original). If we compare the two transcribed articles, we can easily verify that they are the same except in the non-underlined parts, that is, that regardless of the nature of the document and other personal or occasional circumstances, both criminal types refer to the conduct of whoever makes in whole or in part a document or adulterates it, where 'make' means, according to the common sense of the words, to produce, to form, to execute, to give intellectual being, to cause, to arrange, to compose, or to perfect the document (cf. the first ten common meanings of the word 'hacer' in the Diccionario de la Lengua Española, Real Academia Española, 21st edition, Madrid, 1992, p. 763), that is, both criminal types allude—in principle—to both the material and ideological aspects of the document, their only exception being the case in which ideological falsehood (Article 358) falls on a public or authentic document, an exception justified—as has been repeatedly stated—by the superior evidentiary nature of this type of document and particularly because its realization supposes the intervention of a public official who, eventually, could be the author of either of these two crimes sanctioned by Articles 357 and 358; or whose public faith could be materially falsified or altered by another subject (in the case of Article 357), or illegally employed by another person (in the case of Article 358). Therefore, we consider that our legislation, in protecting the public faith of public or authentic documents, in light of their nature and the qualities of the subjects who can harm it, provided for Ideological Falsehood as a species of Falsification (genus), since the person who attests and 'makes' the materially authentic public document may not be the person who 'has' false declarations inserted in it, concerning a fact that the document must prove.” </span> Therefore, given the generic formulation of Article 359, it is unnecessary for the ideological falsehood (falsedad ideológica) of private documents to have been expressly sanctioned, since these are not issued by a public official, but simply by a private individual who, by themselves, attests (personal or individual, not public) to what they record therein, so that it is possible to consider as Falsification of a private document (Falsificación de documento privado), provided that harm may result: 1) the creation of a document that is authentic in its material conditions of existence, but totally or partially false with respect to the facts that it seeks to prove as true, or; 2) the total or partial falsification or alteration of the materiality of a document, even if the fact sought to be proven with it is true. As a corollary of the foregoing, the fact that the author of the ideological falsehood (falsedad ideológica) in the private document is not the same person who materially prepared the document does not exclude their authorship for the purposes of Article 359, but at most would imply the participation of another subject in the same crime, whether as a co-perpetrator or accomplice, which would obviously depend on the existence and specific content of their intent" (Sala III, v. 252-97, 9:25 hrs. of March 14, 1997). As a consequence of the foregoing, it must be concluded that the crime of use of a false document (uso de falso documento) under Article 372 of the Penal Code, which states: "Anyone who makes use of a false or adulterated document shall be punished with one to six years of imprisonment," is applicable both to situations in which the material content and the intellectual content of the document are falsified, even when the document is of a private nature. The appellant argues that the erroneous categorization of the documents as public affected the penalty for those acts in which the detected falsehood (falsedad) was of a material nature, since the seriousness of a falsification of a public document is greater than that of a private one. Furthermore, she argues that this categorization would have affected the penalty for the first referred falsifications, should the conviction for them be correct, for identical reasons. But the issue of the criminality of the conduct has already been resolved in recital (considerando) IX, so it is unnecessary to delve into it, and therefore no ruling is made on that point. Consequently, the rejection of the claim is required.

**XII.-** As a **fourth objection,** a lack of reasoning in the judgment is claimed with respect to the use of a false document (uso de documento falso), related to the D-101 declarations of the companies Edificio Adrofer Sociedad Anónima, Consultores ORS y Asociados Sociedad Anónima, and Inversiones Beyof Sociedad Anónima, and with respect to the penalty imposed for all the crimes. The violation of Articles 142 and 363 subsection b) of the Code of Criminal Procedure, 39 of the Political Constitution, 8 of the American Convention on Human Rights, and the jurisprudence of the Inter-American Court of Human Rights is asserted. It points out that the judgment does not justify why, if the D-101 declarations do not mention a list of clients but only of expenses, it is taken as a given that [Name5] is included in such declarations. The issue concerns the following acts and declarations: **4)** D-101 number [Identification3], which does not include a list of clients, therefore [Name5] is not mentioned. In the costs, expenses, and deductions section of the declaration, the sum of three million six hundred thirty-three thousand three hundred thirty-three colones is simply stated, without any breakdown of expenses. **5)** D-101 number [Identification4], which does not include a list of clients, therefore [Name5] is not mentioned. In the costs, expenses, and deductions section of the declaration, the sum of three million nine hundred forty-two thousand three hundred thirty-three colones is simply stated, without any breakdown of expenses. **10)** D-101 number [Identification6], which does not include a list of clients, therefore [Name5] is not mentioned. In the costs, expenses, and deductions section of the declaration, the sum of one million nine thousand colones is simply stated, without any breakdown of expenses. **11)** D-101 number [Identification7], which does not include a list of clients, therefore [Name5] is not mentioned. In the costs, expenses, and deductions section of the declaration, the sum of four million colones is simply stated, without any breakdown of expenses. **12)** D-101 number [Identification8], which does not include a list of clients, therefore [Name5] is not mentioned. Expenses of nineteen million eight hundred eighty-nine thousand nine hundred thirty-three colones are reported, without any breakdown thereof and without mentioning Mrs. [Name5]. Even in act twelve, the total expenses referred to in D-101 number [Identification8] and the total expenses corresponding to [Name5] are not even mentioned. Regarding the two thousand ten period (acts 7 to 13), it is not mentioned that Inversiones Beyof Sociedad Anónima submitted an informative D-151 declaration mentioning expenses corresponding to [Name5]. At no time, in the two thousand ten D-151 declarations of Inversiones Beyof Sociedad Anónima, nor in the two thousand ten D-151 number [Identification21] of [Name5] (act 9), is any payment from Inversiones Beyof Sociedad Anónima to her mentioned. **14)** D-101 number [Identification9], which does not include a list of clients, therefore [Name5] is not mentioned. In the administrative expenses and sales section of the declaration, the sum of fifteen million one hundred fifty-two thousand seven hundred ninety-one colones is simply stated, without any breakdown of expenses. **16)** D-101 number [Identification10], which does not include a list of clients, therefore [Name5] is not mentioned. In the administrative expenses and sales section of the declaration, the sum of one million colones is simply stated, without any breakdown of expenses. In the acts for which there is a conviction regarding the two thousand eleven period (acts 14 to 20), it is not mentioned that Edificio Adrofer Sociedad Anónima submitted an informative D-151 declaration mentioning [Name5]. Nor is it mentioned in relation to the informative D-151 declaration number [Identification23] of [Name5]. **17)** D-101 number [Identification11], which does not include a list of clients, therefore [Name5] is not mentioned. The amount of the expenses is not even specified. In the administrative expenses and sales section of the declaration, the sum of five hundred thousand colones is simply stated, without any breakdown of expenses. When listing the two thousand eleven D-151 declarations (acts 18 to 20), no D-151 informative declaration by Consultoría ORS y Asociados Sociedad Anónima is mentioned that refers to a payment to [Name5]. **21)** D-101 number [Identification13], which does not include a list of clients, therefore [Name5] is not mentioned. Despite this, it is taken as a given that said declaration included expenses of seventeen million three hundred forty-five thousand three hundred eighty-five colones, which included fictitious expenses in the name of Mrs. [Name5]. **22)** D-101 number [Identification14], which does not include a list of clients, therefore [Name5] is not mentioned. Additionally, it is not specified how this rectifying declaration would have modified D-101 number [Identification13], which would be related to the effect it could produce, being a simple reiteration of the previous one. **27)** D-101 number [Identification16], which does not include a list of clients, therefore [Name5] is not mentioned. Despite this, it is taken as a given that said declaration included expenses of sixteen million seven hundred sixty-seven thousand four hundred two colones, which included fictitious expenses in the name of Mrs. [Name5]. The court justified the penalty of three years of imprisonment for each act, invoking the quantity of the crimes of use of a false document (uso de documento falso). For this reason, it is requested that the ground be granted, the conviction for acts numbered 4, 5, 10, 11, 12, 14, 16, 17, 21, 22, and 27 be annulled, and, for procedural economy, the accused be acquitted; subsidiarily, that a remand for retrial (reenvío) be ordered. Furthermore, that the penalty be annulled with respect to all crimes for which the conviction is upheld, ordering the remand for retrial (reenvío). **Partially granted.** Form D 101 corresponds to what is known as the "Sworn income tax return" ("Declaración jurada del impuesto sobre la renta"). Through it, the individual or legal entity reports their taxable income and the debt they must assume with the treasury in a given year. To arrive at this, it must consider a series of factors, included in the form, such as the assets or liabilities acquired in the period, their income, costs, expenses, and deductions. Regarding expenses, the declarant has a space to record their total amount, but not their breakdown, because the detail of these is not the purpose of the income tax return. That precise breakdown is made in another form, the D 151, called "Annual summary return of clients, suppliers, and specific expenses" ("Declaración anual resumen de clientes, proveedores y gastos específicos"), also called "Third-party return" ("Declaración de terceros"), which is likewise prepared each year. This other document includes a general part, in which the declarant is identified and the expenses are broken down, divided by specific item; and a detail sheet in which the data of the beneficiaries of those expenses are specified. Therefore, the existence of false data included in a sworn income tax return cannot be detected by focusing exclusively on that return; rather, it must be related to the respective Annual summary return of clients, suppliers, and specific expenses, or Third-party return. Thus, it is true that D-101 declaration number [Identification3] of the company Edificio Adrofer Sociedad Anónima, for the year two thousand nine, does not mention the name of [Name5]. It is also true that, in the costs, expenses, and deductions section of the declaration, the sum of three million six hundred thirty-three thousand three hundred thirty-three colones is simply stated, without any breakdown of expenses (field of declarations, certification inside the manila envelope, f. 17). However, reaching this point is only covering half the distance, if what is involved is establishing the existence of the falsehood (falsedad). It is also necessary to refer to declaration 151 of the same company number CED21, to realize that in that same year it reported total expenses for professional services of three million six hundred thirty-three thousand three hundred thirty-three colones, of which, according to the detail sheet, three million five hundred thousand colones were supposedly paid to [Name5]. The falsehood (falsedad) is evident, given that, as was proven beyond any doubt, Mrs. [Name5] never provided professional services to that company or any other, since she is not even a professional. It is also true that in D-101 declaration number [Identification4] for the year two thousand nine, of Consultoría ORS y Asociados Sociedad Anónima, a list of clients is not included, therefore [Name5] is not mentioned. Likewise, in the costs, expenses, and deductions section of the declaration, the sum of three million nine hundred forty-two thousand three hundred thirty-three colones is simply stated, without any breakdown of expenses (field of declarations, certification inside the manila envelope, f. 18). But such information must be related to declaration number [Identification36] of the same company, which indicates that in that year Mrs. [Name5] was listed as a provider of professional services for three million five hundred thousand colones (field of declarations, inside the manila envelope, f. 296), which is false, for all that has already been analyzed throughout this ruling. Therefore, it can indeed be affirmed that the referred income tax return contains false information. It is equally true that in D-101 declaration number [Identification6] of Edificio Adrofer Sociedad Anónima, for the year two thousand ten, a list of clients is not included, therefore [Name5] is not mentioned. It is also true that in the costs, expenses, and deductions section of the declaration, the sum of one million nine thousand colones is simply stated, without any breakdown of expenses (field of declarations, certification inside the manila envelope, f. 17). But that declaration must be related to number [Identification5] of the same company, which indicates that, in that same year, Mrs. [Name5] was paid one million colones for professional services (field of declarations, fs. 220 to 223). In this way, it is proven that part of the professional services deducted when paying the income tax corresponded to a non-existent disbursement to Mrs. [Name5]. D-101 declaration number [Identification7] for the year two thousand ten, of Consultoría ORS y Asociados Sociedad Anónima, does not include a list of clients, therefore [Name5] is not mentioned. It is also true that, in the costs, expenses, and deductions section of the declaration, the sum of four million colones is simply stated, without any breakdown of expenses (field of declarations, certification in the manila envelope, f. 18). But it is also true that in that same year, that company reported the payment of four million colones for professional services in the name of [Name5] (field of declarations, certification of fs. 271 to 273). It is true that in D-101 declaration number [Identification9] for the year two thousand eleven, of the company Inversiones Beyof Sociedad Anónima, a list of clients is not included, therefore [Name5] is not mentioned. It is also true that, in the administrative expenses and sales section of the declaration, the sum of fifteen million one hundred fifty-two thousand seven hundred ninety-one colones is simply stated, without presenting a breakdown—fifteen million five hundred forty-three thousand one hundred ninety-one colones, if the concept of depreciation, amortization, and depletion is added, to establish the absolute total of expenses— (field of declarations, certification in the manila envelope, f. 16). However, said information must be correlated with that recorded in expense declaration [Identification12], of the same company and the same year, in which it is recorded that part of what was paid in that season was eight million colones for professional services to Mrs. [Name5] (field of declarations, certification of fs. 157 to 173). It is also true that in D-101 declaration number [Identification13] for the year two thousand twelve, of the company Inversiones Beyof Sociedad Anónima, a list of clients is not included, nor is [Name5] mentioned, despite which it is assumed that said declaration included expenses of seventeen million three hundred forty-five thousand three hundred eighty-five colones, contemplating fictitious disbursements in the name of Mrs. [Name5] (field of declarations, certification of fs. 63 to 81). However, it cannot be ignored that the expense declaration [Identification15] for that year of that company clearly indicates that professional services were paid to Mrs. [Name5] (field of declarations, certification of fs. 174 to 187), who never provided them. It is equally true that D-101 declaration number [Identification14] for the year two thousand twelve of the company Inversiones Beyof Sociedad Anónima does not include a list of clients, therefore [Name5] is not mentioned, since this does not correspond to this type of declarations (field of declarations, certification of fs. 63 to 81). But as already indicated in the previous case—this being a rectification of number [Identification13]—the expense declaration [Identification15] for that year, of that company, indicates that professional services were paid to Mrs. [Name5] (field of declarations, certification of fs. 174 to CED22), which is not true. It is also questioned how this rectifying declaration would have modified D-101 number [Identification13]. The answer is found in the filing date observed in the documents: one was filed on November twenty, two thousand twelve, and the other on the following day, as seen at the end of each one, so there were two uses of a false document (uso de falso documento) on different days. It is also true that the income tax return D-101 number [Identification16] does not include a list of clients, therefore [Name5] is not mentioned, and included expenses of sixteen million seven hundred sixty-seven thousand four hundred ninety-two colones (correcting the small material error incurred by the appellant) (field of declarations, certification of fs. 69 to 81). However, it cannot be ignored that said company, in that year, indicated expenses of six million colones in the name of Mrs. [Name5], on two occasions, in declarations [Identification17] and [Identification18] (field of declarations, certification of fs. 188 to 204). The appellant must indeed be granted reason regarding D-101 declaration number [Identification8] for the year two thousand ten, of the company Inversiones Beyof Sociedad Anónima, which does not find a link to [Name5] through the third-party return for the year two thousand ten, number [Identification37], of said company, since that person is not mentioned in the latter (field of declarations, certification of fs. 138 to 140). It is not clear from where the court derived that there was a falsehood (falsedad) in the income tax return, so on that point the judgment must be annulled and a remand for retrial (reenvío) ordered. The same occurs with D-101 declaration number [Identification10] for the year two thousand eleven, of the company Edificio Adrofer Sociedad Anónima. In the third-party returns of said company, for that year, numbered CED23, CED24, and CED25, the payment of professional services to Mrs. [Name5] does not appear (field of declarations, certification of fs. 223 to 233). The claim is also admissible regarding D-101 declaration number [Identification11] for the year two thousand eleven, of the company Consultoría ORS y Asociados Sociedad Anónima, which finds no support in the third-party return of the company for the year two thousand eleven, number CED26 (field of declarations, certification of fs. 274 to 279). Consequently, it is necessary to annul the conviction for these last three declarations, ordering the remand for retrial (reenvío) for a new proceeding in accordance with the law. The issue of the consequences of what is ordered here on the penalty, which the appellant brings up, must be disregarded by reason of what was ordered on the matter in recital (considerando) IX of this resolution. In all other respects, the rejection of the claim is required.

**XIII.-** As a **fifth ground,** a lack of correlation between the accusation and the judgment is claimed, with a violation of Articles 142 and 365 of the Code of Criminal Procedure and 39 of the Political Constitution. It argues that act number 12, referring to declaration number [Identification8], includes fictitious payments to [Name5], but it is based on charged act number 9, from the year two thousand ten, in which this is not affirmed. The reference to expenses is with respect to declaration [Identification7], in the name of Consultoría ORS y Asociados Sociedad Anónima, and to [Identification6], in the name of Edifico Adrofer Sociedad Anónima. On the other hand, act 16, regarding D-101 declaration number [Identification10], departs from act 3 of the accusation, referring to the year two thousand eleven, in which said declaration is mentioned. The accusation did not mention amounts or that it reported fictitious expenses in favor of [Name5]. With respect to act 17, D-101 declaration [Identification11], it mentions fictitious payments to [Name5], departing from charged act 3, in which it is simply stated that the declaration was filed, without attributing that it contained fictitious payments in favor of [Name5]. The judgment adds that through this declaration, fictitious payments to [Name5] were included. The annulment of the conviction for the indicated acts must lead to the annulment of the three-year penalty set in relation to all the acts for which there was a conviction, since, to justify the sanction, the court repeatedly mentioned that it was due to the conviction for thirty-two uses of a false document (uso de documento falso). For this reason, it is requested that the ground be granted, the conviction for acts 12, 16, and 17 be annulled, and the accused be acquitted, for procedural economy; subsidiarily, that a remand for retrial (reenvío) be ordered. Furthermore, that the penalty be annulled with respect to all crimes for which the conviction is upheld. **Not granted.** After a brief introduction about the relationship of the accused with the companies whose tax returns were falsified, the accusation narrates the following: *"5. By virtue of the foregoing, the accused [Name1], as representative and member of the Board of Directors of the companies described above, devised a criminal plan to benefit herself financially through her companies by means of the lower payment of taxes, which she achieved by including false data in declarations before the Dirección General de Tributación of the Ministry of Finance. To do this, she also usurped the identity of the offended party [Name5], for which she had the collaboration and active participation of the co-accused [Name6], who served during the investigated period as a trusted accountant for Mrs. [Name1]. a.* In this manner, in the period between the year 2004 and the year 2013, the accused [Nombre1] and [Nombre6] included false data in the official forms of the Dirección General de Tributación of the Ministerio de Hacienda, specifically the Annual Declaration of Clients, Suppliers and Specific Expenses (Form D151) and the Sworn Declaration of Income Tax (Form D101) of the companies Inversiones BEYOF S.A., Edificio ADROFER S.A., and Consultoría ORS y Asociados S.A. In said documents, the accused falsely stated that the victim [Nombre5] provided professional services to the indicated companies, by virtue of which fees were paid to her that were classified as company expenses and therefore reduced the tax base of the taxes they were required to pay. b. Similarly, the accused [Nombre1] and [Nombre6], in the period between the year 2004 and 2013, included false data in the official forms of the Dirección General de Tributación of the Ministerio de Hacienda, specifically the Annual Declaration of Clients, Suppliers and Specific Expenses (Form D151) and the Sworn Declaration of Income Tax (Form D101) of the victim [Nombre5], falsely stating that said victim provided professional services to the indicated companies, by virtue of which fees were paid to her” (accusation uploaded to the virtual desktop on October 18, 2016, pp. 2 and 3). Subsequently, the accusation specified the data for each of the declarations in which the referenced conduct materialized. Regarding those related to the present claim, the accusatory document stated: “9.-It was thus that on December 14, 2010, the accused [Nombre1], with the intention of benefiting herself through the underpayment of tax burdens, personally or through an intermediary simultaneously presented at a Scotiabank branch the Sworn Declarations of Income Tax D-101 numbers [Identificacion8] in the name of Inversiones BEYOF Sociedad Anónima […]” (accusation, p. 14); and “3.-It was thus that, the accused [Nombre1] and [Nombre6], acting in common agreement according to the plan devised to defraud the tax administration with the aim of reducing their tax liabilities and benefiting from the underpayment of tax burdens, simultaneously presented declarations [Identificacion9] in the name of the company Inversiones BEYOF Sociedad Anónima, number [Identificacion22] in the name of the victim [Nombre5], number [Identificacion10] in the name of Edificio ADROFER Sociedad Anónima and [Identificacion11] in the name of Consultoría ORS y Asociados Sociedad Anónima on December 9, 2011, at the same branch of Banco Scotiabank, Scotia Private Client Group Transito #204” (accusation, pp. 15 and 16). With the exception of the changes made in the introductory part, due to the fact that the defendant was convicted only for conduct subsequent to the year two thousand nine, what was transcribed was practically reiterated in the proven facts of the judgment (sentence, pp. 104, 105, 113 and 114), such that no breach of the correlation between accusation and sentence is appreciated if the accused facts and the proven facts are compared. However, the appellant detects certain differences between the accusation and what is recorded in the substantive analysis section. What should not be set aside is that this is the product of the natural enrichment derived from the reception of evidence during the trial. Thus, in what the appellant identifies as “fact number 12”—which is not a proven fact, but one that corresponds to the reasoning—when making the intellectual analysis, it is indicated: “12) D-101 number [Identificacion8], with the intention of benefiting herself through the underpayment of tax burdens, [Nombre1] signed said declaration which was in the name of Inversiones Beyof S.A., in which false information was included regarding sales and administrative expenses, which included the expenses reported in the name of [Nombre5], a declaration that was presented to the Tax Administration on December 14, 2010, and which, furthermore, it is clear that said declaration was signed by the convicted Taitelbaum, since in Expert Report No. DCF: 2015-01402-AED issued by the Handwriting and Questioned Documents Analysis Section of the Department of Forensic Sciences, Result 12 confirms her signature […]” (sentence, p. 189, bold from the original). The appellant's complaint is that in fact 9 of the year two thousand ten, in the accusation, it was not specified that this declaration was related to fictitious payments to [Nombre5], which is effectively true. However, she sets aside that this fact 9 of the accusation cannot be read in isolation from the general part thereof, transcribed above, which clearly indicates that the maneuvers carried out by the accused and the accounting assistant [Nombre6] consisted, precisely, of attributing to the companies represented by [Nombre1] the payment of non-existent services to Mrs. [Nombre5]. Point 12, of which the challenger complains, is nothing more than another way of drafting the same thing that is already included in the accusatory document, if you will, with greater precision. What is fundamental is that this wording does not introduce anything that cannot be extracted from a complete reading of the prosecutorial request. The appellant's error lies in comparing point 12 with the exclusive reading of the accused fact number 9, thus arriving at a biased interpretation. Something similar occurs with the so-called “fact 16”, which is seen in the intellectual reasoning of the judgment. In it, the a quo states: “16) D-101 number [Identificacion38], in which false information was included regarding the sales and administrative expenses of the company Edificio Adrofer S.A., for an amount of one million colones, which included the fictitious expenses reported in the name of [Nombre5], and with the intention of benefiting herself through the underpayment of tax burdens, said declaration was presented to the Tax Administration on December 9, 2011, and furthermore, it is clear that said declaration was signed by the convicted Taitelbaum, since in Expert Report No. DCF: 2015-01402-AED issued by the Handwriting and Questioned Documents Analysis Section of the Department of Forensic Sciences, Result 21 confirms her signature […]” (pp. 191 and 192). The complaint is about the inclusion of amounts and the name of Mrs. Otárola, which is not seen in fact 3 of the year two thousand eleven of the accusation. But the specification of the amount is a product of the evidence produced at trial and, most importantly, the essential description of the conduct has not varied, as long as the error of reading that fact 3 separately from the introductory part of the accusation is avoided. Finally, the complaint regarding “fact 17” derives from the same type of error. In the substantive assessment, the court stated: “17) D-101 number [Identificacion39], in which false information was included regarding the sales and administrative expenses of the company Consultoría ORS y Asociados S.A., which included the fictitious expenses reported in the name of [Nombre5], and with the intention of benefiting herself through the underpayment of tax burdens, said declaration was presented to the Tax Administration on December 9, 2011, and furthermore, it is clear that said declaration was signed by the convicted Taitelbaum, since in Expert Report No. DCF: 2015-01402-AED issued by the Handwriting and Questioned Documents Analysis Section of the Department of Forensic Sciences, Result 27 confirms her signature” (p. 192, bold from the original). Once again, it must be indicated that the reference to the inclusion of expenses in favor of Mrs. [Nombre5] is not a matter outside the accusation, as long as the error of reading fact 3 of the year two thousand eleven in isolation is not incurred, understanding that, as a unit it is, the accusation cannot be understood if its general part is excluded. Although the errors pointed out in this ground are not acceptable, it is worth noting that, for different reasons, indicated in the preceding considerando, the conviction for declarations number [Identificacion10] of Edificio Adrofer Sociedad Anónima and [Identificacion11] of Consultoría ORS y Asociados Sociedad Anónima were annulled, which will be taken into account in the operative part of the judgment. Accordingly, the rejection of the ground heard here is appropriate.

**XIV.- APPEAL OF THE PROCURADURÍA GENERAL DE LA REPÚBLICA** . Licenciado Miguel H. Cortés Chaves, Ethics Procurator, also appeals the sentence handed down in this case. As a **sole ground**, he alleges a lack of reasoning and contradictory reasoning in the rejection of the civil claim for social harm. He affirms that it was proven that the accused falsely used documents, being a person who held an important position in public service, which was tarnished by the acts committed. The head of the Defensoría de los Habitantes herself asked a private individual to lie to a journalist so as not to stain her name, because her position was very important, recognizing that the image of the institution was harmed. A legal entity such as the Defensoría de los Habitantes can suffer moral harm, especially from conduct like that of its head, which harms the intangible values that constitute part of the institution's asset value. The interest harmed in the present case is public, due to the tax evasion carried out by a public official who held the highest position in the Defensoría. The fact that a public official was prosecuted for a crime and convicted, even for actions carried out in the personal sphere, generates social harm. The head of that institution is required to have moral solvency, in accordance with Article 4 of the Law of the Defensoría de los Habitantes. The Defensoría is the body responsible for defending the rights and interests of the inhabitants. It must ensure that the operation of the public sector adheres to morality, justice, the Political Constitution, the laws, the agreements, treaties and pacts signed by the Government and the general principles of law. The court's reasoning was contradictory when it considered that she performed the acts in her private sphere, but then indicated that this position calls for maintaining behavior as an honest, decent, moral citizen, as a public figure in the private sphere. Social harm is a category of non-material harm, subject to the same rules as moral harm. The accused [Nombre6] recognized that these facts harmed the defendant [Nombre1] for being a public figure. People who learned of the news expressed their discontent on social media. He maintains that public officials must respect ethical values and cites an opinion of the Procuraduría General de la República. Article 38 of the Código Procesal Penal allows the Procuraduría to exercise civil action when collective and diffuse interests are affected. The court could have derived the existence of a social harm, as non-material harm, without having direct evidence and by drawing an inference based on human presumptions. Therefore, he requests that the appeal be declared admissible, the resolution be annulled regarding the rejection of social harm, and a ruling be made in accordance with the law. **Granted.** The sentence under review rejected the social harm item of the civil action, arguing the lack of a causal link between the conducts carried out and the harm invoked (sentence, p. 262). However, if one delves into the court's reasoning, that causality problem it speaks of has to do with the separation of the public and private spheres in which the accused operated. The court stated it as follows: “The proven acts were carried out by the civil defendant in her private sphere, even under the nature of representative held in three sociedades anónimas of which she was a part and legal representative, not in the exercise of her function in the position of Defensora de los Habitantes, a public position which, although she held it at the time of the acts, the truth is that said position calls for maintaining good conduct as a citizen, to be honest, decent, moral, as a public figure in her private sphere, and in that she did fail gravely as set forth in the section on determination and reasoning of the penalty; but, not for this reason can it be said that in said private, personal, even family sphere (since the three companies also belong to her relatives) she must act with a duty of probity, since she is no longer within any public institution, is not directing any public official, is not making decisions that affect the institution where she works (Defensoría de los Habitantes), but rather becomes a citizen like everyone else; reason for which the assessments and therefore the conclusion that the expert sustained in his report, as well as what was set forth in the debate, are erroneous. / In addition to the above, it has been made abundantly clear that **what was violated was PUBLIC FAITH as the protected legal interest** (see considerando on legal classification), **not the duty of probity** such that the civil actor's thesis could be accepted in the sense that the alleged social harm was produced, by affecting the image and trust that the people had in said representation, in said public institution” (pp. 262 and 263, emphasis from the original). As can be appreciated, the underlying argument is that the criminal activity of the Defensora de los Habitantes, carried out within the scope of her private life, cannot cause social harm; that only when she commits a crime in the exercise of her functions and violating her duty of probity, does she have the possibility of causing harm of that nature. In other words, the opinion of the adjudicating body is not, simply, that in light of the proven facts the Defensora's actions did not cause harm to society, but rather that, due to the nature of the actions, that harm is not possible. This chamber does not share that criterion. From the moment it presented the civil action brief, the Procuraduría General de la República stated that “It is undeniable that the facts claimed herein constitute acts of corruption that, in addition to the direct harm they may have caused to the public treasury, have caused a social harm, due to the reduction in credibility in public officials and which is claimed here with the filing of this Civil Restitution Action in accordance with the provisions of Article 38 of the same body of law” (civil action uploaded to the virtual desktop on November 30, 2016, p. 30). Then one must ask: can the commission of thirty-two crimes of use of a false document—or twenty-nine, if the nullities ordered here are taken into account—by the Defensora de los Habitantes, within the framework of a coordinated and structured criminal activity spanning several years, undermine the credibility of said institution? The answer is affirmative. In the first place, because the Law of the Defensoría de los Habitantes de la República itself considers the moral quality of the person who is to hold its leadership to be essential. Article 4 of said law states that “Any Costa Rican person who is in the full exercise of their civil and political rights, who is over thirty years of age, **with recognized moral solvency** and professional prestige, may be appointed Defensor or Defensora of the inhabitants of the Republic […]”. Note that this is an “entry requirement”, a prior condition for aspiring to the position of Defensor de los Habitantes; the subject must have shown signs of being a holder of that moral solvency, even before being part of the institution. Whoever intends to occupy the position cannot claim that their prior behavior, not having been carried out in the exercise of the functions, is not relevant; it is a requirement consubstantial to the position. It could not be otherwise, considering the function of said body. Article 2 of its law describes its general attribution as follows: “The Defensoría de los Habitantes de la República is the body responsible for protecting the rights and interests of the inhabitants. / This body shall ensure that the operation of the public sector adheres to morality, justice, the Political Constitution, the laws, the agreements, the treaties, the pacts signed by the Government and the general principles of Law. Additionally, it must promote and disseminate the rights of the inhabitants”. How could a head of the institution who had serious issues in that area ensure morality in the operation of the public sector? This is further reinforced by what is indicated in Article 6 of the referenced law, which states: “The Defensor de los Habitantes de la República shall cease in their functions, for any of the following causes: / […] d) Having been convicted, by final judgment, of an intentional crime”. The condition of being a criminal, on an intentional basis, is absolutely incompatible with that of Defensor de los Habitantes, regardless of whether the crime was committed, or not, as part of the exercise of the position. It is not just a legal requirement, more or less timely. In reality, the honorability of the Defensor de los Habitantes is fundamental for the fulfillment of the duties of the Defensoría, since the powers that the law has attributed to it are merely investigative and for reporting (Articles 12 to 14 of the cited regulation); the Defensor only exercises a moral magistracy. Lacking the required moral weight, which is built in the eyes of the citizenry, institutional strength weakens and the fulfillment of its function is hindered. If citizens come to consider that the Defensor de los Habitantes has inappropriate moral conduct in their business dealings and incurs in systematic criminal acts, in collusion with third parties, the effectiveness of the institution in our society can be severely affected. For all the above, this appellate chamber cannot share the basic assumption that the trial court adopts to reject the social harm. The intentional criminal behavior of the Defensora de los Habitantes, verified in her private sphere, can indeed generate harm to the institution and, consequently, affect society. It must be clear that the court is not prejudging the merits of the claim in question, which would imply the analysis of the evidence in the specific case, a matter that is the exclusive competence of the trial court; it is simply affirmed that the fundamental premise from which the a quo started is wrong, which warrants the ordered nullity.

**XV.-** **_Dissenting Vote of Judge González González_** . **The first ground of challenge raised by Licenciado Fabio Oconitrillo Tenorio and Licenciada Gloriana Jiménez Rey, in their capacity as defense attorneys for the accused [Nombre1], and the third ground of challenge of the appeal against the sentence filed by the accused [Nombre1], under the legal sponsorship of Dr. Javier LLobet Rodríguez, are granted. Consequently, [Nombre1] is acquitted of the thirty-two crimes of use of a false document attributed to her, to the detriment of public faith. As a result of this decision, the lifting of the interim measures ordered against [Nombre1] is ordered.** **On the merits:** With respect to the majority vote signed by Judges Mena Artavia and Araya Vega, I concur to issue a dissenting vote, in summary, because I consider that in the _sub judice_ case, it was appropriate to apply the tax regulations (Código de Normas y Procedimientos Tributarios), due to their special nature, and not the general ones (Código Penal), regarding the issue of documentary falsehoods that the accused is alleged to have committed. Therefore, it was an unavoidable correlation between Articles 66, 67, 70, 81, 89 and 92 of the Código de Normas y Procedimientos Tributarios (hereinafter [Nombre27]), Law No. 4755, with Articles 23, 368 and 372 of the Código Penal, to conclude that we are faced with an apparent concurrence of norms when, in order to defraud the public treasury (a tax illicit act that can be classified as an administrative infraction or a tax crime, depending on the amount of the defrauded quota), the falsehood falls on the content of the self-assessment declaration of facts generating a tax obligation (falsehood of content in a private document), which is subsequently presented to the Tax Administration by the taxpayer (use of a false private document). Thus, it is appropriate to cite that Article 65 of the C.N.P.T. establishes that the illicit acts are one and that, depending on whether they are classified as administrative infractions or tax crimes, they will be heard by the Tax Administration or the Judicial Branch. However, always under the understanding that the taxpayer may not be sanctioned for the same tax illicit act on more than one occasion, whether on the same basis and for the same facts (double pronouncement against a single incrimination), as a guarantee of legal certainty provided by the principle _non bis in ídem_. Article 66 of the C.N.P.T. provides as follows: “_Verification of tax illicit acts The verification of tax illicit acts must respect the \"non bis in idem\" principle, in accordance with the following rules: a) In cases where the infractions may constitute tax crimes, the Administration will transfer the matter to the competent jurisdiction, according to Article 89, and will refrain from continuing the sanctioning procedure while the judicial authority does not issue a final judgment. The sanction of the judicial authority will exclude the imposition of an administrative sanction for the same facts. // If the existence of the crime has not been deemed to exist, the Administration will continue the sanctioning file based on the facts considered proven by the courts. b) In cases where the Tax Administration has already established a sanction, this will not prevent initiating and developing the judicial action. However, if this results in a conviction of the subject, the infractions that may be considered preparatory acts for the crime, whether actions or omissions included in the criminal type, will be understood to be subsumed in the crime. Therefore, the imposed administrative sanctions must be revoked, if their nature allows it_”. This principle, although regarding a different tax illicit act from the one heard here (closure of premises), was developed by the Constitutional Chamber in holding: “_VII.- Non bis in idem. Another important topic regarding closure, and perhaps one of those presenting the greatest complexity, is that of respect for this principle and its application when there is a concurrence of infractions._ The principle of *non bis in idem*, enshrined in Article 42 of our Political Constitution, seeks to prevent double punishment for the same act; thus, it would be violated when, as a consequence of a single act, a duality of sanctions is imposed on the person responsible for it. The doctrine has assigned it the following consequences: first, the prohibition of imposing both criminal and administrative sanctions for the same acts; second, the preference of criminal proceedings over administrative ones, meaning that proceedings initiated in a criminal venue prevent any subsequent ones; and third, the duty of the Administration to respect the factual framework analyzed by the Courts. These consequences derive from the auxiliary and delegated nature of administrative sanctioning powers with respect to the Judicial Branch, since, given the differences between the Administration and the Jurisdiction and the constitutional subordination of the former to the latter, the priority of the Courts in hearing acts susceptible to dual classification is entirely logical. For this principle to be infringed, we must be faced with the same act punished twice, understood as identity of subject, act, and basis, requirements whose verification poses problems because, in some cases, the same act can harm different interests, protected by different norms and constituting various offenses or infractions, thus giving rise to several sanctions without violating any principle. The doctrine indicates that *bis in idem* does not exist when two independent results have arisen from the same act, correctable by different entities or susceptible to integration into concurrent but differentiated legal spheres or categories, corresponding to distinct but simultaneous aspects of liability. In these cases, they are matters of a different nature, thus referred to as an ideal concurrence. This naturally presupposes a single act that violates various legal provisions, with the basic characteristic that these provisions do not exclude each other. It should be understood that a violation of *non bis in idem* does not occur if the sanctions accumulate totally or partially, precisely because there is no identity of basis. The opposite is the case of the apparent concurrence of norms, which requires the prevalence of one of the provisions, determining the non-application of the others, in which case, if sanctions are accumulated, a violation does occur” (Resolution N˚ 2000-08191 of 15:03 hours, of September 13, 2000. Emphasis supplied). As can be deduced from the cited norms and the mentioned jurisprudence, there is no qualitative criterion between administrative infractions and tax crimes, given that both are classified as “illicit tax acts (hechos ilícitos tributarios)”, but rather a formal difference, under the understanding that the administrative illicit act also contains within itself an ethical-social value judgment which, due to its lesser severity (considering its amount as a valuation criterion, according to Articles 81 and 92 of the C.N.P.T.), carries an administrative sanction and not a criminal one. Coupled with the fact that, since there is no difference in the protected legal right, the public treasury, the decision appears correct, based on criminal policy, to regulate and protect only essential interests through criminal law and to protect through administrative law the harms that, as a consequence of fraud, affect the State's interests with less intensity, under the principles of minimum intervention and last resort. It is in this context that the illicit tax act called “material infractions due to omission, inaccuracy, or improper request for compensation or refund, or for obtaining improper refunds (infracciones materiales por omisión, inexactitud, o por solicitud improcedente de compensación o devolución, o por obtención de devoluciones improcedentes)”, described in Article 81 of the C.N.P.T., and the crime of fraud against the public treasury, set forth in numeral 92 *ibídem*, are situated. This is clear, regarding the intentional active and omissive behaviors aimed at defrauding the public treasury, since numeral 81 also includes reckless conduct or even actions taken under error (which are not being analyzed in the specific case). In this order, according to the cited norm, the following constitute tax infractions and are sanctioned with a fine, among other conducts: “1. […] b) Filing inaccurate self-assessments (Presentar declaraciones autoliquidaciones inexactas). This infraction is configured when taxpayers fail to pay, within the legally established deadlines, the corresponding tax amounts, through the filing of inaccurate self-assessments. For these purposes, inaccuracy shall be understood as: i. The use of false (El empleo de datos falsos), incomplete, or inaccurate data, from which a lower tax or a lower balance payable or a higher balance in favor of the taxpayer or responsible party is derived. ii. The arithmetic differences contained in the declarations submitted by the taxpayers. These differences occur when performing any arithmetic operation results in an incorrect value or rates different from those legally established are applied, implying, in either case, lower tax values or higher balances in favor than should correspond. iii. In the case of the declaration of withholdings at source, the omission of some or all of the withholdings that should have been made, or those made and not declared, or those declared for an amount lower than what corresponds. // The basis of the sanction shall be the difference between the amount settled in the official determination and the amount self-assessed in the taxpayer's declaration. […] 3. Applicable sanctions. The material infractions described in sub-items a), b), c) and d) of item 1 of this article shall be sanctioned with a monetary fine of fifty percent (50%) on the corresponding sanction basis. // For all the previous infractions that could be classified as serious or very serious, as described below, and provided that the sanction basis is equal to or less than the equivalent of five hundred base salaries, the sanctions established for each case shall be applied: […] b) Those infractions in which fraudulent means have been used shall be classified as very serious, meaning by such: i. Substantial anomalies in the accounting and in the books or records established by tax regulations. Substantial anomalies are considered: the absolute breach of the obligation to keep accounting or the books or records established by tax regulations; keeping different sets of accounting records that, referring to the same activity and fiscal year, do not allow the true situation of the company to be known; keeping accounting books or the books or records established by tax regulations incorrectly, through the falsification of entries, records, or amounts, or accounting in incorrect accounts in a way that alters their fiscal consideration. The application of this last circumstance requires that the incidence of keeping the books or records incorrectly represents a percentage greater than fifty percent (50%) of the sanction basis. ii. The use of false or falsified invoices, supporting documents, or other documents (El empleo de facturas, justificantes u otros documentos falsos o falseados), provided that the incidence of the false or falsified documents or supporting materials represents a percentage greater than ten percent (10%) of the sanction basis. iii. The use of intermediary persons or entities (La utilización de personas o entidades interpuestas) when the offending party, with the purpose of concealing its identity, has had the ownership of goods or rights, the obtaining of income or capital gains, or the carrying out of operations with tax significance from which the tax obligation derives, the breach of which constitutes the sanctioned infraction, appear in the name of a third party, with or without their consent. // When the infraction is classified as very serious, a sanction of one hundred and fifty percent (150%) shall be imposed on the entirety of the corresponding sanction basis” (Highlighting is ours). As can be seen, the action of “use of false data (empleo de datos falsos)” necessarily entails intentional conduct aimed at deceiving or defrauding the public treasury, while it requires knowledge that the data is not true and that, through its use (will of the agent), a “lower tax or a lower balance payable or a higher balance in favor of the taxpayer or responsible party” will be produced. Even more, those infractions in which “The use of false or falsified invoices, supporting documents, or other documents” or “The use of intermediary persons or entities” are determined are classified as very serious, when they are used to conceal from the Tax Administration their condition as taxpayer of the tax obligation, making appear (which is just another way of inducing the public treasury into error) “…in the name of a third party, with or without their consent”, the ownership over: i) goods or rights, ii) the obtaining of income or capital gains and, iii) the realization of operations with tax significance. As a corollary, what was stated by the lower court (a quo), that the norm of Article 81 of the C.N.P.T. only refers to accounting or material errors that occur in self-assessments classified as inaccurate, is incorrect, as it contravenes the literal wording and grammar of the norm and, as will be explained below, its teleological interpretation. In this sense, it cannot be overlooked that the cited norm was modified by Article 1 of Law N° 9069 of September 10, 2012, "Law for Strengthening Tax Management (Ley de Fortalecimiento de la Gestión Tributaria)", so that, *prima facie*, in adherence to the principle of non-retroactivity of the law and the application of sanctioning law over time (Article 11 of the Penal Code), this reform would only be applicable to conduct carried out through the income tax self-assessments filed in the fiscal periods of 2012 and 2013; while its previous wording applies to the events carried out through the self-assessments for the 2009, 2010, and 2011 periods. However, the normative description of Article 81 C.N.P.T. in force for these latter fiscal periods was not very different and, in one or the other, the offense for deceptive conduct carried out to the detriment of the public treasury was always maintained. Note that, in accordance with the reform this numeral underwent by Article 2 of Law N˚ 7900 of August 3, 1999, the filing of inaccurate declarations was always sanctioned for “the use of false data […] from which a lower tax or a lower balance payable or a higher balance in favor of the taxpayer or responsible party is derived”. It also established that this was a type of deception of the Tax Administration, but that it would only be sanctioned (administratively) if it exceeded the amount stipulated at that time. Thus, the mentioned article describes it: “In the cases described in this article in which the Tax Administration determines that it has been induced into error, through simulation of data, distortion or concealment of true information, or any other suitable form of deception, for an amount less than two hundred base salaries, the sanction shall be seventy-five percent (75%)” (Emphasis supplied). As a corollary, it cannot be denied that with one wording or another of Article 81 of the C.N.P.T., according to the legal reforms it has undergone within the period in which the taxable event occurred (before and after the year 2012), the same purpose of the tax norm has always been maintained, which is to differentiate the administrative offense from the criminal offense based on the economic amount derived from the fraud. This is so, because Article 92 of the C.N.P.T., which was in force from August 3, 1999 (Law N˚ 7900) until September 10, 2012 (Law N˙ 9069), stipulated: “Inducing the Tax Administration into error. // When the amount of the defrauded sum exceeds two hundred base salaries, whoever induces the Tax Administration into error, through simulation of data, distortion or concealment of true information, or any other form of deception suitable for inducing it into error (cualquier otra forma de engaño idónea para inducirla a error), with the purpose of obtaining, for themselves or for a third party, a patrimonial benefit, an exemption, or a refund to the detriment of the Public Treasury, shall be sanctioned with imprisonment of five to ten years. // For the purposes of the provisions of the preceding paragraph, it must be understood that: a) The defrauded amount shall not include interest, fines, or penalty surcharges. b) To determine the mentioned amount, if it concerns taxes whose period is annual, the quota defrauded in that period shall be considered; for taxes whose periods are less than twelve months, the amounts defrauded during the period between January 1 and December 31 of the same year shall be added. // In the other taxes, the amount shall be understood to refer to each of the concepts for which a taxable event is susceptible to determination. // It shall be considered a legal exculpatory excuse if the party remedies their non-compliance, without any requirement or action by the Tax Administration to obtain the remedy. For the purposes of the preceding paragraph, an action by the Administration shall be understood as any action carried out upon notification to the taxpayer, leading to verifying compliance with the tax obligations related to the tax and period in question” (Highlighting is ours). As can be seen, just as Article 81 of the C.N.P.T. did, it sanctioned whoever induced the Tax Administration into error, among others, by simulation of data or any other form of deception (within which the inclusion of false data in tax self-assessment declarations cannot be excluded), with the purpose or goal of obtaining a patrimonial benefit -whether for themselves or for a third party-. Likewise, in accordance with Article 81 C.N.P.T., Article 92 (in force for the fiscal periods alleged to have been defrauded, year 2009, 2010, and 2011) stipulated that the tax offense would only be considered a crime, and not an administrative infraction, when it exceeded the economic *quantum* provided for such purposes -two hundred base salaries for that moment-. This criminal offense did not vary with the reform to the cited Article 92, carried out by Article 1 of Law N° 9069 of September 10, 2012, "Law for Strengthening Tax Management (Ley de Fortalecimiento de la Gestión Tributaria)", which stipulates: “Fraud against the Public Treasury. // Whoever, by action or omission, defrauds the Public Treasury with the purpose of obtaining, for themselves or for a third party, a patrimonial benefit, evading the payment of taxes, amounts withheld or that should have been withheld, or payments on account of benefits in kind, or improperly obtaining refunds or enjoying fiscal benefits in the same manner, provided that the amount of the defrauded quota, the unremitted amount of withholdings or payments on account, or the improperly obtained or enjoyed refunds or fiscal benefits exceeds five hundred base salaries, shall be punished with a prison sentence of five to ten years. // For the purposes of the provisions of the preceding paragraph, it must be understood that: a) The amount of five hundred base salaries shall be considered an objective condition of punishability. b) The amount shall not include interest, fines, or penalty surcharges. c) To determine the aforementioned amount, if it concerns periodic taxes, withholdings, payments on account, or refunds, or those of periodic declaration, the amount defrauded in each tax period or declaration period shall be considered and, if these are less than twelve months, the amount defrauded shall refer to the calendar year. In other cases, the amount shall be understood to refer to each of the different concepts for which a taxable event is susceptible to liquidation. // It shall be considered a legal exculpatory excuse if the party remedies their non-compliance, without any requirement or action by the Tax Administration to obtain the remedy. // For the purposes of the preceding paragraph, an action by the Administration shall be understood as any action carried out upon notification to the taxpayer, leading to verifying compliance with tax obligations” (Emphasis supplied). In this case, upon reviewing the etymological content of the term “defraud (defraudar)”, it is specified as: "1. tr. To deprive someone, through abuse of their trust or infidelity to one's own obligations, of what is rightfully theirs. 2. tr. To frustrate, to dissipate the trust or hope placed in someone or something. 3. tr. To evade or circumvent (Eludir o burlar) the payment of taxes or contributions" (REAL ACADEMIA ESPAÑOLA: Diccionario de la lengua española, 23rd ed., [version 23.3 online]. https://dle.rae.es. Retrieved November 17, 2020. Likewise, for the cited Dictionary "circumvent (burlar)" is defined as "2. tr. to deceive (induce to believe as true what is not)". Through these different definitions, it can be concluded that the content of the illicit action in Article 92 of the Code of Tax Norms and Procedures is similar to that of the repealed numeral 92 of that same legal body and, in turn, to part of the administrative illicit conduct described in Article 81 of the C.N.P.T., since in all of them the conduct of inducing the Tax Administration into error with the purpose of obtaining, for oneself or for a third party, a patrimonial benefit, to the detriment of the public treasury, prevails. Thus, as the Constitutional Chamber has held, a criterion shared by the signatory of this dissenting opinion: “…numerals 81 and 92 of the Code of Tax Norms and Procedures correspond to a different legal nature and diverse faults, one of an administrative type and the other of a criminal nature. Particularly, it must be noted that, although both articles contain, within some part of their factual description, that the tax administration has been induced into error 'through simulation of data, distortion or concealment of true information, or any other suitable form of deception,' the truth is that, on the other hand, there is an essential difference between them regarding their regulation […], which lies precisely in the determination of the economic quantum derived from the error or fraud, which, in turn, is calculated with respect to the base salaries referred to in the previous recital and upon which, it was clarified, this Chamber will not issue any criterion” (cf. Resolution N˙ 2015-10498 of 09:43 hours, of July 15, 2015). In other words, the two norms coincide in that both sanction the illicit conduct of inducing the administration into error; however, the application of one or the other corresponds to the legal nature of whether it is administrative or criminal, based on the amount defrauded. It is clear, for the constitutional court and for the signatory of this dissenting opinion, in this factual scenario, that the competence of the administrative or criminal venue does not obey qualitative criteria, but rather a formal one or one of criminal policy, as stated above (*supra*) and, therefore, the economic *quantum* is of utmost importance, being considered by the legislator as “an objective condition of punishability” (an aspect that will be discussed below (*infra*)). In addition to this, according to Article 120 C.N.P.T., the principle of self-assessment of the tax obligation governs in our environment, which consists of the taxpayer voluntarily liquidating what must be paid for taxes, once the taxable event is configured and verified. Thus, this self-determination must be carried out “…in accordance with the sworn declarations filed by the taxpayers and responsible parties within the time and under the conditions established by the Tax Administration […] Sworn declaration must be understood as the determination of the tax obligation made by the taxpayers and responsible parties, under oath, through the means referred to in the preceding paragraphs, with the effects and responsibilities determined by this Code” (Article 122 *ibídem*). Furthermore, these “…are presumed to be a faithful reflection of the truth and make the declarant responsible for the taxes resulting from them, as well as for the accuracy of the other data contained in such declarations […]” (Article 130 *ibíd*.). Under this guidance, it is verified that the tax norms do not make an express reference to whether such self-assessment documents are public or private. However, resorting to the literal wording of the referred articles, and to the definition of documents given in the Civil Procedure Code, these can be classified as private.

In this vein, the law uses a method of exclusion to qualify documents, understanding that private documents (documentos privados) are those that “…do not have the status of public,” and that public documents (documentos públicos) are “…all those drafted or issued by public officials, according to the required forms and within the limits of their powers, and those qualified with that character by law. Documents granted abroad with that character by virtue of treaties, international conventions, or international law shall also have that nature. In the absence of a written rule, such documents must meet the requirements of the legal system where they were granted. // A document granted by the parties before a notary attests not only to the existence of the agreement or provision for which it was granted, but even to the prior legal facts or acts that are related therein, in simply enunciative terms, provided that the statement is directly linked to the principal agreement or provision. // Reproductions of documents shall have the evidentiary efficacy of the originals, if the authorizing official certifies the reason for them being faithful copies of the originals. Simple copies whose authenticity has not been timely challenged shall have the same efficacy” (Article 45, subsections 2 and 3 of the Civil Procedure Code, law N˚ 9342 of February 3, 2016). In this sense, a tax self-assessment is not issued by a public official within the framework of their powers; on the contrary, even if it is done on a form provided by the State (physical or electronic), it is the taxpayer themselves or other responsible parties who issue its materiality and content. Nor does the law qualify it as such, as stated above (supra). Not to mention, for obvious reasons, they are not documents granted by virtue of international instruments or prepared before a notary public. Therefore, the use of false data in a tax self-assessment will affect the content of a private document (documento privado) and, as such, said conduct is described both in Article 81 and in Article 92 of the C.N.P.T. as means used to achieve inducing the Tax Administration into error in an attempt to obtain a benefit to the detriment of the public treasury. This becomes relevant, according to the factual framework that was accused and deemed proven, and to the claims of the technical and material defense, regarding the existence of an apparent concurrence of norms between the tax offenses and the offense of use of a false document described in Article 372 of the Penal Code, for which [Nombre1] was convicted. The trial court deemed it proven, among other more specific events, that: “5. By virtue of the foregoing, the accused [Nombre1], as representative and member of the Board of Directors of the companies described above [Sociedad Anónima Edificio ADROFER, Consultoría ORS y Asociados Sociedad Anónima e Inversiones BEYOF Sociedad Anónima], devised a criminal plan to benefit financially through her companies by means of underpaying taxes, which she achieved by including false data in declarations before the Dirección General de Tributación of the Ministerio de Hacienda. To this end, she also usurped the identity of the victim [Nombre5], for which she had the collaboration and active participation of the late [Nombre6], who served during the period under investigation as an accounting assistant, a trusted person of Mrs. [Nombre1]. In this manner, in the fiscal periods between the year 2009 and the year 2013, the accused [Nombre1] included false data in the official forms of the Dirección General de Tributación of the Ministerio de Hacienda, of the Annual Declaration of Clients, Suppliers, and Specific Expenses (Formulario D 151) and the Sworn Income Tax Declaration (Formulario D 101) of the companies Inversiones BEYOF S.A., Edificio ADROFER S.A., and Consultoría ORS y Asociados S.A. In said documents, the accused falsely stated that the victim [Nombre5] provided professional services to the indicated companies, by virtue of which fees were paid to her that were classified as company expenses and therefore reduced the taxable base of the taxes they had to pay. Similarly, the accused [Nombre1], in the successive fiscal periods from the year 2009 to the year 2013, included false data in the official forms of the Dirección General de Tributación of the Ministerio de Hacienda, of the Annual Declaration of Clients, Suppliers, and Specific Expenses (Formulario D151) and the Sworn Income Tax Declaration (Formulario D101) of the victim [Nombre5], falsely stating that said victim provided professional services to the indicated companies, by virtue of which fees were paid to her” (cf. sentencing file, pages 105 and 106). As can be inferred, the use of false data regarding the payments for professional services made by the companies the defendant represented (which include the insertion of said fact in the self-assessments of their own income tax, as well as the use of individuals for the purpose of concealing her identity as a taxpayer obligated for the tax), was executed by the defendant [Nombre1] as a means to achieve the intended goal, which was to induce the Tax Administration into error and to procure a financial benefit by reducing the tax burden and the payment of the income tax. The trial court understood it this way, resolving: “The actions concur materially. In total, false data was inserted in thirty-two documents, which determines the falsehood thereof. The defendant [Nombre1] had full knowledge of this, specifically of the false content, as they corresponded to an artful machination to distort reality in order to benefit the companies and harm the Public Treasury. That is, deceptive acts motivated by the intent for unjust profit were executed, with which the tax oversight bodies were induced into error and produced a detriment to the Public Treasury, because finally, even though a tax determination or assessment has not been made, the truth is that less tax was declared, which arises as a logical and inescapable consequence, since the actions led to a decrease in gross income and the consequent decrease in the tax burden. This generated impact is, in turn, a direct consequence of the error into which the recipient of the operations was induced, that is, the institution legally responsible for the control, verification, and oversight of tax obligations, by making it believe that payments for professional services had been verified to Mrs. [Nombre5]” (cf. folio 131. The highlighting is supplied). There is no doubt for the jurisdictional body that the defendant, in authentic forms, being those supplied by the Tax Administration (whether physical or electronic), by herself or through an intermediary, used false content in self-assessment declarations. It also qualified these as “deceptive acts” for resulting in an “artful machination to distort reality,” which “induced the tax oversight bodies into error,” which finally “produced a detriment to the Public Treasury” and managed to benefit the accused's companies. This, precisely, is the typical conduct described in Article 92 of the Code of Tax Standards and Procedures (before and after the reform made by Article 1 of law N° 9069 of September 10, 2012, "Ley de Fortalecimiento de la Gestión Tributaria"), and in turn, as has been warned in this dissenting vote, that described in Article 81 of the same legal body. Therefore, the determination of the economic quantum defrauded was essential, to be able to establish whether it was a tax infraction or a tax crime. The judging body itself recognized this by stating: “Certainly, the crime of 'Fraud against the Public Treasury' (Fraude a la Hacienda Pública) was not accused, provided for in Article 92 of the Code of Tax Standards and Procedures, which is a Tax Defraudation, a criminal type of a special nature, which was ruled out in the preparatory investigation by the Public Ministry, because this criminal type establishes within the objective elements that the amount of the defrauded quota must exceed five hundred base salaries. However, what has been indicated so far makes it evident that, as material actions, it is not possible to distinguish between the use of a false document and the deceit aimed at obtaining a financial benefit; in this case, there is a single action from a natural or physical point of view. Added to the foregoing is not only the need for the ruling to be correctly supported for a better understanding of the behaviors carried out by the accused, particularly in a case like the one at hand, where the use of the false document is precisely the means used by the agent to perpetrate the deceit and the consequent induction of the tax authority into error” (cf. sentencing document, pages 131 to 132. The emphasis is our own). From the previous extract, the conclusions reached by the trial court can be seen: i) That this is a tax offense for defraudation, which does not rise to the level of a crime because it does not exceed five hundred base salaries and this is an objective element of the criminal type; ii) The use of false documents (the falsehood in the content of the self-assessments) is the means used by the agent to perpetrate the deceit and induction of the Tax Administration into error; and iii) There is a single action, since it is impossible to distinguish between the document falsification and the deceit carried out to procure the financial benefit. Regarding the first of the statements, the trial court errs in considering that the amount of the fraud is an objective element of the criminal type. On the contrary, from the reading of Article 92 of the C.N.P.T. (before the reform carried out in the year 2012), it could be understood that the expression: “When the amount defrauded exceeds two hundred base salaries, whoever induces the Tax Administration into error shall be punished with imprisonment of five to ten years […]” referred to an objective condition of punishability, and not an objective element of the criminal type. This became clearer when, after the reform of said numeral through law N° 9069, of September 10, 2012, which increased the amount from two hundred to five hundred base salaries, the legislator made an authentic interpretation, stating that: “…For the purposes of the provisions of the preceding paragraph, it must be understood that: a) The amount of five hundred base salaries shall be considered an objective condition of punishability. […]”. In this way, regardless of whether one agrees or not that the economic quantum defrauded corresponds to an objective condition of punishability or is an objective element of the criminal type (the result), the truth is that Costa Rican law opted for the first, and according to this thesis, any fraudulent conduct against the public treasury must be considered typical, unlawful, and culpable, even if it does not exceed the mentioned amount of five hundred base salaries. This is because, although the criminal relevance of a behavior depends on the wrongfulness of the conduct performed, there may be criminal policy considerations that affect the advisability of punishing these types of conduct, as in this case, when the fraudulent result against the public treasury does not exceed a specific amount. Thus, it is understood that: “Penality or punishability is, therefore, a way of collecting and elaborating a series of elements or presuppositions that the legislator, for utilitarian reasons, diverse in each case and alien to the proper purposes of Criminal Law, may require to justify or exclude the imposition of a penalty and which only have in common that they belong neither to typicality, nor to unlawfulness, nor to culpability, and their contingent nature, that is, they are only required in some specific crimes. […] Objective conditions of penalty are circumstances that, without belonging to the wrongfulness or culpability, condition in a specific crime the imposition of a penalty. As they do not belong to the type either, it is not necessary for the author's intent to refer to them, it being indifferent whether they are or are not known by him” (Muñoz Conde and García Arán. Derecho Penal. Parte General. 8th Edition. 2010. pages 399 to 401). In summary, the thesis of the lower court (a quo), that in the case at hand (sub judice) the typicality of the fraud against the public treasury, described in Article 92 of the C.N.P.T., nor the criminal wrongdoing, was configured, based on the absence of a defraudation greater than five hundred base salaries, violated the principle of legality and the authentic interpretation that the legislator gave to the economic quantum as an objective condition of punishability. This is significant, since this was the criterion used (the atypicality of the conduct of fraud against the public treasury) to demean the defense's thesis, which maintained that the lack of accreditation of a detriment to the public purse greater than five hundred base salaries made the defendant's conduct—of using false data in the self-assessment declarations—only prosecutable as an unlawful administrative tax act (Article 81 of the C.N.P.T.) and that the instrumental falsehoods were subsumed within the wrongfulness of the result by specialty. This under the implicit criterion in the ruling that the atypicality of the fraud against the public treasury left the instrumental falsehoods used as a means subsisting, which it proceeded to punish for harming a different legal interest (public faith). First, as stated above (supra), such a decision overlooked that the amount is an objective condition of punishability that did not affect the criminal wrongdoing, nor the culpability of the author, and; second, although such a criterion is not entirely incorrect, since, in principle, the instrumental falsehoods concerning public and authentic documents, or those equivalent (366, 365, and 370 of the Penal Code) could be in such a condition, because Article 92 C.N.P.T. would not exclude them as provided in Article 21 of the Penal Code [In the same sense, “Derecho Penal. Parte Especial” (Zárate et al., 2018, p. 527)]; in the specific case, the species of the documents the accused was accused of using was different, since tax self-assessment declarations are private documents, so the falsehood employed in these—apparently—at most could constitute a crime of use of a false document of a private nature, penalized by Article 368 and 372 of the Penal Code, whose action wrongfulness is much lesser than that contained when falsifying or using public, authentic, or equivalent documents. The misapplication of the mentioned substantive norms led the lower court (a quo) to dismiss the use of Article 23 of the Penal Code (apparent concurrence of norms), despite having correctly considered the documentary falsehood (concerning the use of false data in the content of the income tax self-assessment declarations) as the means used to perpetrate the deceit and induction of the Tax Administration into error. It even recognized that it was a single action. Of course, the caveat must be made that this was not in a natural or physical sense as erroneously mentioned in the ruling, but in legal unity, between each of the falsehoods as a means to achieve the defraudation of the public purse and the induction of the Tax Administration into error, which was consummated in each of the tax periods (2009, 2010, 2011, 2012, and 2013) with the detriment to the public treasury caused by the accused. This is because not only was the final factor accredited—procuring the financial benefit to the detriment of the public purse—but also the normative factor, since the documentary falsehoods resulted in acts and actions aimed at deceiving the tax verification body; they occurred in relation of means to an end, because they managed to cause a result that meant the detriment caused to the public purse, and the phenomenological aspects (space and time) showed proximity, inasmuch as, as the jurisdictional body maintained, one of the circumstances that allowed accrediting the defendant's participation in all the events was that the self-assessment declarations with false content (both those of her companies and those of [Nombre28]), in each of the fiscal periods, were filed with little time difference, at the authorized windows by the receiving body or through the electronic systems that the Tax Administration provided for this purpose. Thus, the use of the document containing the false information (tax self-assessment declarations) was consubstantial with the fraudulent action in each of the tax periods, since this was the means provided by the State for the taxpayer or responsible individuals to indicate the taxable event of the tax obligation and provide the necessary information for the determination of the tax they had to fulfill. Without omitting that it is in these self-assessment declarations where the legislator deemed it could be presented: “The use of false, incomplete, or inaccurate data, from which a lower tax or a lower balance payable or a greater balance in favor of the taxpayer or responsible party is derived” (Article 81.1.b.i of the C.N.P.T.). This allows concluding, in turn, that these are units of action in each of the tax periods, between the use of tax self-assessments containing false information (use of a false private document) and the act of defrauding the public treasury itself. Coupled with the fact that, in this type of offense (Article 92 of the C.N.P.T.), such falsehoods are typical accompanying acts (or co-penalized), whose punishment does not take place autonomously, unless said crime is not configured (whose seriousness is notably greater in relation to the penalty to be imposed: 5 to 10 years of imprisonment, compared to the other, 1 to 6 years). This is because, as has been warned in this dissenting vote, there are many ways in which the conducts of fraud against the public treasury can develop; however, falsehood in tax self-assessment declarations is one typically described for doing so, as penalized in Article 81 so often mentioned. Thus, when Article 368 of the Penal Code provides that the falsification of a private document requires, as an essential element for its configuration, that “detriment may result,” and understanding that ideological falsehood in a private document is indeed penalized in that norm (cf. Resolución N˚ 2020-1196 of this Sentence Appeals Court, at 15:30 on July 22, 2020 -González González, [Dirección1] and [Dirección2]), this must lead to the potential for detriment from the use of false data in the tax self-assessment declarations (which turn out to be the false documents that the defendant is accused of using) being contained in the detriment caused to the public purse. That is, in this specific factual scenario, where the author merely fails to tell the truth in the narration of the facts that act as assumptions to determine the tax taxable event and the tax burden that must be paid (ideological falsehood in a private document), the wrongfulness of the conduct would be entirely covered by Article 92 of the C.N.P.T. (a criminal type of greater complexity due to the protected legal interests) and the rule of absorption provided in Article 23 of the Penal Code would operate. Otherwise, failing to resolve the concurrence of both crimes with a concurrence of laws would mean a typological duplication or overlap when contemplating the detriment and, definitively, a double penalty. This is because the harm to the legal interest protected in the crime of defrauding the public treasury not only encompasses the patrimony, as maintained in the majority ruling, but, being plurioffensive, indirectly also covers the integrity of the economic order in the strict sense, which is necessary for correct economic planning of the nation and to achieve the economic and social policy goals that a social and democratic State of Law is obliged to fulfill [In this sense: [Nombre4], El delito Fiscal. 1982, p. 210 to 211]. Likewise, the Constitutional Chamber affirms, regarding tax crimes, that in these: “In general terms [it seeks] the protection of financial activity as a collection system and of fiscal policy for the application of resources according to the best criteria of justice and equity. In specific terms, it seeks to protect the 'oversight and collection' functions of the tax administration for collection purposes. What is protected are the oversight and verification functions, with the purpose of protecting the tax system as a fundamental source of resources for the development of state financial activity and, at the same time, to ensure the correct functioning of said system” (Resolución N˚ 2000-08191 of 15:03 on September 13, 2000). In the same sense, it has been indicated: "Regarding crimes, Article 92 CNPT, when regulating the crime of tax defraudation or 'induction into error,' establishes as one of its central elements the 'detriment to the Public Treasury,' from which it is easy to infer that the protected legal interest is the supra-individual patrimony represented by the Public Treasury. The subjection of the crime to a minimum defrauded amount (200 base salaries) also implies that what is protected is said patrimony. Now, also in this crime, due to the typical need for a scheme whose victim is the Tax Administration, we can visualize the protection of a duty of truthfulness towards it and, therefore, of the tax function" ([Nombre7], El delito de Defraudación Tributaria. In: Ensayos sobre Derechos Penal Económico y De Empresa. Editorial Jurídica Continental. 2013. p. 562. The emphasis is supplied). In synthesis, also protected as a legal interest, both in Article 81 and in Article 92 of the Code of Tax Standards and Procedures, besides the patrimony, is the protection of the truthfulness of the information supplied to the Tax Administration, so that it exercises the duty of oversight and collection of taxes (Public Treasury). Pursuant to this, and to the principle of offensiveness, the wrongfulness of the falsehood committed in the self-assessment is understood to be included in the crime of defrauding the public treasury (criterion of consummation), so that the application of this criminal type displaces that of the falsification of private documents (and its corresponding use). In the specific case, this is relevant since the trial court, although it could not specify its amount, did deem proven the existence of a detriment to the public treasury, which was "several million colones" (cf.

…(archivo de sentencia, page 218) that did not exceed the economic quantum of five hundred base salaries. In this way, the acts that constitute the criminal offense of the crime under Article 92 of the Tax Code of Norms and Procedures were considered proven, and it was corroborated that the defendant [Name1] was found guilty of these. However, a sanction could not be applied to her, because it was proven that the amount of the defrauding did not exceed five hundred base salaries (objective condition of punishability). In this sense, it is accepted that, in apparent concurrence of norms, the displaced criminal law does not disappear completely, and can have effects in certain cases, among these, when the primary crime is not punished, as could occur when a personal cause for exclusion of punishability arises. However, "[t]his principle has an exception in the case of the previously co-penalized act (hecho previo copenado)" (cf. [Name11] González, Francisco. Derecho Penal, Parte General, San José, Costa Rica, Volume I, Editorial Jurídica Continental, 2008, p. 582). Note that, in the case of the absolute legal excuse through remedy of the tax non-compliance, which happens to be another condition of punishability, if one were to apply the thesis that the falsehoods in the tax self-assessment declaration still subsist, after the crime of fraud against the public treasury cannot be sanctioned (thesis of the majority vote), the taxpayer should be prosecuted for having lied (falsity of content) to the Tax Administration, when in reality, from a teleological interpretation, what interests the State, based on criminal policy criteria, is the regularization of the passive subject and the recovery of the public purse, and not the application of criminal sanctions, considering that criminal law is the last resort (última ratio). Parallel to this, it must be emphasized that the criterion of consumption (consunción) that is used also turns out to be a version of the principle of specialty and, therefore, of the principle of legality considered jointly with the principle of proportionality. Hence, it is not valid to apply the general criminal law (use of a false document described in Article 372 of the Penal Code), when Article 89 of the C.N.P.T. establishes that “…If there are special provisions in the tax laws, these prevail over the general ones”. That is to say, the crime of fraud against the public treasury prevailed over the crime of use of a false private document, and if the former could not be assigned a penalty because an objective condition of punishability was present, that did not mean that the use of false data in the tax self-assessment declarations assumed their autonomy again, as the principal conduct, or that in which the former was consummated, remained typical, unlawful, and culpable (crime) but not subject to penalty for reasons of criminal policy. Especially in these cases, where the special rule establishes that, if the mentioned amount is not exceeded, the proper course was to proceed with the administrative sanctioning procedure for the subsisting illicit tax act (administrative infraction), and not to resort to the general law, it is insisted, because there is an express provision on that aspect. Without omitting, furthermore, that such a course of action would also not leave the protected legal interest (the veracity of the information supplied to the Tax Administration) unprotected, given that, first, it must be kept in mind that the non-application of a criminal sanction, through the transformation of criminal illicit acts into administrative illicit acts, does not entail, per se, a lesser intimidating or afflictive efficacy of the sanctioning system and, second, it would always be possible to recover the defrauded assets and impose a legal consequence for the illicit act. Corollary, as is inferred from the grounds for challenge by the technical and material defense, upon noticing that this supposition excluding punishability was evident ab initio (the amount of the sum defrauded from the public treasury), the proper course was for it to be analyzed beforehand to avoid having to reach the formal declaration of guilt of the accused, which now imposes on this adjudicator the issuance in this venue of the acquittal of [Name1], because, it is reiterated, her conduct is not subject to penalty. Otherwise, sanctioning the conducts of use of a false private document (for using false data in the self-assessment declarations) autonomously and separately from the fraud against the public treasury, would infringe the prohibition of non bis in ídem (Article 42 of the Political Constitution, Article 14.7 of the International Covenant on Civil and Political Rights, Article 8.4 of the American Convention on Human Rights, and 66 of the C.N.P.T.), insofar as said falsehoods could be sanctioned both criminally and administratively, as the majority vote suggests, which, although respected, contradicts the principle of legality and the theory of concurrence of crimes. This does not prevent, as set forth in this dissenting vote, the Tax Administration from “…[continuing] the sanctioning file based on the facts considered by the courts as proven” (Article 66 of the C.N.P.T.), because in this case, the acquittal judgment has the same effects as a dismissal (sobreseimiento), thus fulfilling the supposition that allows the resumption of the administrative sanctioning procedure (Articles 81 and 90 ibid.). On the staggered deliberation. In accordance with the provisions of Articles 361 and 465 of the Criminal Procedure Code, this Court of Appeals must deliberate for the decision on the diverse aspects raised, reaching a decision, at least, by majority. Thus, our procedural legislation implicitly recognizes what is known as the staggered deliberation, in the sense that if a judge dissents with reference to a specific topic, they must continue intervening on the other aspects submitted for their knowledge, in order to prevent the tribunal from disintegrating. In this model of deliberation, the responsibility of the dissenting judge remains safe by virtue of their minority vote and, with this, their judicial independence from the majority thesis is also guaranteed. It is also verified that, given the need to have the tribunal's full composition to resolve the other aspects submitted to the plenary of the adjudicating body, the dissenting judge participates in its determination, in order to give material content to the principles of access to justice and effective judicial protection (Article 41 of the Political Constitution). A different deliberation procedure, that is, when the dissenting judge withdraws from the deliberation as soon as they emit their vote, would cause the rest of the issues to be heard only by two adjudicating persons (in clear disintegration) and, as a risk, would bring the possibility that on some of the topics there exists a contradiction that prevents reaching a majority of votes and causes the ineffectiveness of said process, with the consequent impairment of the cited principles. This type of deliberation has been recognized by this Sentence Appeals Tribunal, formerly known as the Court of Criminal Cassation, in resolutions No. 2009-0399 of 09:45 hours on April 17, 2009, No. 2010-0193 of 11:15 hours on February 24, 2010, and No. 2010-0444 of 15:40 hours on April 13, 2010. Thus, based on Articles 10 of the Civil Code and 5 of the Organic Law of the Judicial Branch (which permit interpreting norms based on legislative and jurisprudential antecedents), this will be the method that this Court of Appeals applies in this matter. Consequently, the minority vote that is now rendered, saves my criterion with respect to the rest of the votes that I emit in unanimity with the rest of the tribunal, when the remaining grounds for challenge are heard, since I can no longer sustain the criterion issued here in those matters, without disintegrating the panel of judges and overlooking that this topic was already decided by a majority. This clarification is valid, to avoid mistaken interpretations that might consider it contradictory that I dissent on this topic, yet, I continue voting with the rest of the tribunal on other topics that, evidently, would have a different result if the minority vote were applied (e.g., The application of Article 130 C.N.P.T. regarding the rectification of tax self-assessment declarations as an absolute legal excuse for the crime of fraud against the public treasury, which has no place if the accredited criminal offense is considered to be the use of a false document, as a general criminal figure, since definitively, in that context, it would have no relevance whatsoever that the accused regularizes their situation before the Tax Administration, beyond the recognition of remorse for their actions).

**XVI.- Note from Judge Araya Vega.** In the thirtieth claim by the defenders and the first ground for her challenge by the accused [Name1], the evidentiary assessment carried out by the lower court (a-quo) of the recording of the telephone call made by the aggrieved party to the defendant is objected. In a collegiate manner, it was considered that the recording was unlawful and should be excluded, given that what was relevant was the determination of the recipient of the information and their consent (cf. in the same sense, Supreme Court of Justice, S3, v. 2009-717). Now, in the specific case, although the captured communication was unlawful – and therefore must be excluded from the evidentiary collection –, the truth of the case is that, based on the theory of risk, the conversation held between the accused and the victim can indeed be subject to evaluative control, but through the account of the offended party, not the recording. This generates no impact on the fundamental right to privacy, insofar as the acknowledgments made by the accused to the victim are indeed ponderable based on her testimony (that is, as long as the account was credible based on the rational parameters for weighing testimony such as subjective credibility, verisimilitude, external corroborability, and persistence of the incrimination). That is to say, although the recording was unlawful and generates its evidentiary exclusion, its weighing is viable through the account of the aggrieved party, since the accused [Name1] assumed the risk by communicating with the offended party and confessing the illicit act and proposing ways to correct it, so that what happened would not become publicly known by virtue of her high office as the acting Defensora de los Habitantes. Hence, what concerns the account of the offended party, regarding the content of said communication, is indeed valid and constitutionally admissible.

**THEREFORE:** The appeals filed by the defenders of [Name1]; by her, in her personal capacity; and by the Procuraduría General de la República are partially granted. The thirty-fourth and thirty-fifth grounds of the appeal filed by the accused's defense are accepted; the first, the sixth, and, partially, the fourth ground raised by her personally are accepted; likewise, the sole ground of the appeal by the entity that acted as the State's attorney is accepted. Consequently: **i)** the ineffectiveness is ordered of the recording made by [Name5], of the conversation she held with the accused [Name1] on July 3, 2014; **ii)** the penalty imposed for all the condemned acts is annulled; **iii)** the conviction is annulled with regard to the D-101 declarations numbers [Identification8] from the year two thousand ten, for the company Inversiones Beyof Sociedad Anónima; [Identification10] from the year two thousand eleven, for the company Edificio Adrofer Sociedad Anónima; and [Identification11] from the year two thousand eleven, for the company Consultoría ORS y Asociados Sociedad Anónima; **iv)** the acquittal for social damage is annulled. The referral back to the trial court is ordered so that, with a new composition, it may rule in accordance with law on the annulled topics. Judge González González dissents and grants the first ground of the appeal by the accused's defense and the third ground of the challenge filed by her personally. Judge Araya Vega adds a note.

<p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:150%"><span style="font-family:Arial; font-weight:bold">NOTIFY.-</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:150%"><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:150%"><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:150%"><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:150%"><span style="font-family:Arial; font-weight:bold">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center"><span style="font-family:Arial; font-weight:bold; font-style:italic">Giovanni Mena Artavia</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify"><span style="font-family:Arial; font-weight:bold; font-style:italic">Rafael Mayid González González</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; 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font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic"> Alfredo Araya Vega</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center"><span style="font-family:Arial; font-weight:bold; font-style:italic">Criminal Sentence Appeals Judges</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify"><span style="font-family:Arial">&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:9pt"><span style="font-family:Arial; font-style:italic">Expediente: 14-000327-0065-PE(1) </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:9pt"><span style="font-family:Arial; font-style:italic">Defendant: [Nombre1]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0;&#xa0; </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:9pt"><span style="font-family:Arial; font-style:italic">Victim: Public faith and another</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:9pt"><span style="font-family:Arial; font-style:italic">Crime: Embezzlement (Peculado) and others </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:9pt"><span style="font-family:Arial; font-weight:bold; font-style:italic">DDURANC</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:8pt"><span style="font-family:Arial; font-weight:bold; font-style:italic">Exp.: 14-000327-0065-PE(1) - VOTO 2020-1858 - pág.: 1</span></p> **VIII.- [...]** From the content of both legal provisions, it must be concluded, for the purposes relevant here, that recording a conversation is only lawful when a crime is being committed through it, in which case the offended person may present it to the authorities. It is worth clarifying that it may be any crime and not necessarily one of those for which the interception of communications is permitted under Law 7425, as suggested by the appellant defense counsel (see in this regard, from the Third Chamber, v. 48-01, of 11:00 a.m. on January 12, 2001). The fact is that, if the hypothesis of the existence of a crime is not present, the recording of the conversation has no legal protection and, consequently, cannot be used in a criminal proceeding, by virtue of the limitation imposed by articles 181 and 182 of the Código Procesal Penal on the use of illegally obtained evidence (prueba ilícita). In fact, one could even incur in the conduct contemplated in article 198 of the Código Penal, which states: "*Anyone who, without their consent, records the words of another or others, not intended for the public, or who, through technical procedures, listens to private statements not addressed to them, shall be punished with imprisonment of one to three years, except as provided for in the Ley sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones. The same penalty shall be imposed on anyone who installs devices, instruments, or their parts, in order to intercept or prevent oral or written communications, whether or not they achieve their purpose*." In the case under review, the recording of the conversation held by the accused with Ms. [Name [Name1]] on July third, two thousand fourteen, starting at three forty-five p.m., which was recorded by the latter without the former's consent, is openly illegal, since a crime was not being committed through it, as required by the norm just transcribed. In the opinion of this chamber, the arguments resorted to by the trial court to justify its validity are not acceptable. It is said that the inclusion of the recording finds protection in the principle of freedom of proof (libertad probatoria). However, the procedural legislation states in this regard: "*The elements of proof shall only have value if they have been obtained by a lawful means and incorporated into the proceeding in accordance with the provisions of this Code*" (article 181 of the procedural code); likewise: "*The facts and circumstances of interest for the correct solution of the case may be proved by any permitted means of proof, except for express prohibition by law*" (article 182 *ibidem*). Thus, the freedom of proof finds an insurmountable limit in the legality of obtaining and incorporating the means of proof. In this particular case, as indicated, the legality of obtaining the recording depends on the commission of a crime through the communication, a requirement absent here. [...] Where we must disagree with the appellants is in the essential character attributed to the recording as part of the evidentiary element; in this, we even disagree with the opinion of the trial court itself. The fact is that the fundamental statements made by the accused in the recorded conversation were presented by Ms. [Name [Name1]] in her trial testimony. Furthermore, this was added to the rest of the evidentiary material analyzed by the *a quo*. The manner in which the evidence involved the defendant [Name2], without needing to resort to the recording, was already set forth by this chamber in considerando V, to which we refer to avoid unnecessary repetition. Discarding that element of proof does not change the conclusion regarding the defendant's liability, neither criminal nor civil. Consequently, what must be ordered is, solely, the ineffectiveness of the recording made by [Name [Name1]] of the conversation she held with the accused [Name2] on July third, two thousand fourteen. In these terms, the grounds assessed here are upheld." **XI.- [...]** As a consequence of the foregoing, it must be concluded that the crime of "uso de falso documento" (use of a false document) under article 372 of the Código Penal, which states: "*Anyone who makes use of a false or altered document shall be punished with one to six years of imprisonment*," is applicable both to situations in which the material content and the intellectual content of the document are falsified, even when the document is of a private nature.

**XIV.- [...]** As can be seen, the underlying argument is that the criminal activity of the Defensora de los Habitantes, carried out within the scope of her private life, cannot cause a social harm (daño social); that only when she commits crimes in the exercise of her duties and by violating her duty of probity, does she have the possibility of causing harm of that nature. In other words, the opinion of the adjudicating body is not simply that, in light of the proven facts, the action of the Defensora did not cause harm to society, but rather that, due to the nature of the actions, that harm is not possible. This chamber does not share that criterion.

XV.- [...] With respect to the majority vote signed by Judges [Nombre1] and [Nombre2], I concur in issuing a dissenting vote, in summary, because I believe that in the sub judice, the tax regulations (Tax Code of Regulations and Procedures) were applicable, due to their specificity, and not the general ones (Criminal Code), in relation to the issue of the documentary falsehoods the defendant is accused of committing. Thus, the inescapable correlation was between Articles 66, 67, 70, 81, 89, and 92 of the Tax Code of Regulations and Procedures (hereinafter [Nombre3].), Law No. 4755, and numerals 23, 368, and 372 of the Criminal Code, in order to conclude that we are facing an apparent concurrence (concurso aparente) of norms when, in order to defraud the public treasury (tax-related illicit act that can be classified as an administrative infraction or tax crime, depending on the amount of the defrauded quota), the falsehood falls on the content of the self-assessment declaration (declaración de autoliquidación) of events generating a tax obligation (falsehood of content in a private document), which is later presented to the Tax Administration by the taxpayer (use of a false private document)." Reading of the full judgment is deferred to sixteen hundred hours on Thursday, September fifth, two thousand nineteen. <span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">NOTIFY BY READING.-</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold">"</span><span style="font-family:Arial; font-weight:bold">.</span> **II.-** That against the preceding ruling, attorney Fabio Oconitrillo Tenorio and attorney Gloriana Jiménez Rey, in their capacity as special judicial representatives of the accused; the defendant [Name1] in a document authenticated by Dr. Javier Llobet Rodríguez and attorney Miguel Horacio Cortes Chaves, representing the Procuraduría General de la República, filed an appeal.

**III.-** That upon conducting the respective deliberation in accordance with the provisions of Article 465 of the Código Procesal Penal, the Court considered the issues raised in the appeal.

**IV.-** That the pertinent legal requirements have been observed in the proceedings.

Drafted by the Judge of the Criminal Sentence Appeal Mena Artavia; and, **CONSIDERING:** **I.-** On June ninth, two thousand twenty, at thirteen thirty hours, an oral hearing was held in this matter, with the presence of attorneys Javier Llobet Rodríguez and Fabio Oconitrillo Tenorio as defense counsel; [Name4] Rodríguez Ovares as prosecutor and Miguel Cortés Chaves as representative of the Procuraduría General de la República. At that time, the court was composed of the same judges who subscribe to this ruling. No evidence was presented during the proceeding, and the parties limited themselves to summarizing some of the arguments raised in writing.

**II.- APPEAL BY THE DEFENSE OF [Name1], KNOWN AS [Name1].** In this section, which comprises considering sections II through X, a response will be given, fundamentally, to the thirty-six grounds that make up the appeal filed by the defense of the defendant [Name1]. Simultaneously, insofar as it suits the order of the topics addressed, the claims made by the defendant in the appeal she filed separately will also be considered. When this occurs, express mention will be made to avoid confusion. Attorney Fabio Oconitrillo Tenorio and attorney Gloriana Jiménez Rey, defense counsel for the accused [Name1], known as [Name1], file an appeal against judgment number 601-2019 of the Criminal Trial Court of the Second Judicial Circuit of San José, issued at eight thirty hours on August twenty-ninth, two thousand nineteen. They maintain that the ruling contains a violation of the rules of sound rational criticism regarding the assessment of evidence, since the conviction being appealed, for thirty-two counts of use of a false document, did not derive from an adequate and comprehensive assessment of all the evidence, especially expert opinion 2015-1402-AED and the final case report from the Dirección de Inteligencia of the Administración Tributaria. They complain about the absence of a legal analysis in the judgment under review, supplanted by the mere transcription of the prosecution's accusation and the evidence. In their **first ground** for challenge, they claim a lack of legal reasoning and an absence of legal analysis of the defense's thesis regarding the apparent concurrence of offenses (concurso aparente de normas). They assert that the court did not analyze the defense's interpretation that an apparent concurrence of offenses occurred in this case between the crime of use of a false document and the administrative infraction provided for in Article 81 of the Código de Normas y Procedimientos Tributarios. In their opinion, this is a case of an administrative-tax nature and not a criminal one. The adjudicating body merely stated that the case under review did not fall within the assumptions of the tax regulation. After citing subparagraph b), item i), of Article 81 of the Código de Normas y Procedimientos Tributarios, the appellants assert that the legislation on this matter includes, as an administrative infraction, the use of false data in declarations, from which lesser taxes are derived, so the conduct punished here fits within that assumption; the foregoing—they clarify—without accepting that it was their client who personally inserted, prepared, or used any false data. Thus, assuming that the deductible expenses from the tax base corresponded to services not provided, the described conduct conforms to the cited numeral. Hence, they consider that they are facing an apparent concurrence of offenses. In support of their thesis, they cite resolutions from the Tribunal Contencioso Administrativo, the Tribunal Fiscal Administrativo, and a vote from the Sala Tercera, for which they do not indicate the number, from nine twenty hours on December eighteenth, two thousand fifteen. The appellants consider that specialty must prevail, as this involves the inclusion of a false fact in a self-assessment declaration, which aims to harm a supra-individual asset (the public treasury), but not public faith or any other asset, as occurs in the use of a false document; it is a specific falsehood, which does not affect public faith, but rather the public treasury. In summary, they reiterate that the court did not analyze the concurrence. In **the third reproach** of the appeal filed by the defendant personally (a challenge to which a separate section will be dedicated later), a lack of reasoning for the conviction is alleged, in relation to the application of Article 81, subparagraph b) of the Código de Normas y Procedimientos Tributarios. She alleges the violation of Articles 142 and 363, subparagraph b) of the Código Procesal Penal, 39 of the Constitución Política, 71 of the Código Penal, 8 of the Convención Americana sobre Derechos Humanos and the jurisprudence of the Corte Interamericana de Derechos Humanos. She states that the defense, in closing arguments, alleged that Article 81, subparagraph b) of the Código de Normas y Procedimientos Tributarios, which refers to inaccurate returns, should have been applied to the case under review, excluding the application of the use of a false document. This referred to the following facts and declarations: **1)** D-151 number [Identification1], **2)** D-151 number [Identification2], **4)** D-101 number [Identification3], **5)** D-101 number [Identification4], **7)** D-151 number [Identification5], **8)** D-151 number 15113003880516, **10)** D-101 number [Identification6], **11)** D-101 number [Identification7], **12)** D-101 number [Identification8], **14)** D-101 number [Identification9], **16)** D-101 number [Identification10], **17)** D-101 number [Identification11], **18)** D-151 number [Identification12], **21)** D-101 number [Identification13], **22)** D-101 number [Identification14], **24)** D-151 number [Identification15], **27)** D-101 number [Identification16], **29)** D-151 number [Identification17] and **30)** D-151 number [Identification18]. The appellant points out that what is indicated in the judgment regarding what was declared by [Name7] bears no relation whatsoever to what was alleged by the defense. The court refers to abuse of right, which has no connection to what was claimed by the defense counsel. Likewise, the entire argument about the tax system in Costa Rica lacks relation to what was alleged by the defense. The court states that the actions of the accused cannot be considered simple tax infractions, because in such a case the criminal law applied to her would lose all purpose and any administrative effort to collect taxes would be useless, an argument that the appellant considers fallacious, for ignoring that tax infractions are also punishable illicit acts. It is also said that the self-assessment declarations did not result from accounting or material errors, but were deceptive, a distinction that, in the opinion of the appellant, does not derive from Article 81, subparagraph b) of the Código de Normas y Procedimientos Tributarios. The court's argument fails to consider the expression contemplated in that subparagraph regarding the use of false data. The referenced article penalizes tax infractions related to the inadequate payment of taxes; in this case, the documents that according to the court are false are tax declarations, in which the law penalizes the use of false data. The annulment of the conviction must lead to the annulment of the penalty of three years for each count, since the court based it, repeatedly, on the fact that thirty-two uses of a false document were committed. Therefore, she requests that the ground be granted, the conviction for facts 1, 2, 4, 5, 7, 8, 10, 11, 12, 14, 16, 17, 18, 21, 22, 24, 27, 29 and 30 be annulled; that, for procedural economy, the defendant be acquitted of such facts and, subsidiarily, that the conviction be annulled and a retrial ordered; furthermore, that the penalty be annulled for all crimes for which the conviction is upheld, including those numbered 3, 6, 9, 13, 15, 19, 20, 23, 25, 26, 28, 31 and 32 and that, consequently, a retrial be ordered for the setting of the penalty.

**III.- Due to their thematic connection, the two grounds summarized in the preceding considering section will be addressed jointly, both being declared without merit.** The introductory part of the claim filed by attorneys Fabio Oconitrillo Tenorio and Gloriana Jiménez Rey makes a couple of general assertions about the assessment of evidence and, especially, about expert opinion 2015-1402-AED and the final case report from the Dirección de Inteligencia of the Administración Tributaria. The lawyers do not develop their reproaches in this section, as they do in subsequent grounds. Therefore, when resolving these others, the merit of such complaints will be analyzed. Properly regarding the ground alleged here, the lawyers begin by asserting that the ruling lacks legal reasoning and legal analysis of the defense's thesis, concerning the apparent concurrence of offenses; at this point, the accused also speaks of a lack of reasoning. The first thing that must be clear, however, is that the issue was extensively addressed by the trial court in the sixth considering section of the ruling, specifically in the section titled "ON THE DEFENSE'S THESIS" (judgment in digital file, pp. 198 to 207). Consequently, what is appropriate is to assess the analysis carried out by the a quo court, and determine whether it reached correct conclusions on the issue raised. This involves determining whether the conduct for which the defendant was found responsible conforms to the criminal offense of use of a false document (Article 372 of the Código Penal); or rather, whether it falls within the provision of numeral 81, subparagraph b), of the Código de Normas y Procedimientos Tributarios —or, even, whether both could occur simultaneously—. The first of the aforementioned articles states: "Anyone who makes use of a false or altered document shall be punished with one to six years of imprisonment"; the other, insofar as relevant to resolve the issue raised, indicates: "**1.** The following constitute tax infractions: [...] **b)** Filing inaccurate self-assessment declarations. This infraction is configured when taxpayers fail to pay, within the legally established deadlines, the corresponding tax quotas, by means of filing inaccurate self-assessment declarations. For these purposes, inaccuracy shall be understood as: / **i.** The use of false, incomplete, or inaccurate data, from which a lesser tax or a lesser balance to pay or a greater balance in favor of the taxpayer or responsible party is derived [...] **3.** Applicable sanctions. The material infractions described in sub-items a), b), c) and d) of item 1 of this article shall be penalized with a monetary fine of fifty percent (50%) based on the correspondingsanction [...]". The defense of the defendant has maintained that the second article constitutes a special rule regarding the first, such that, through a relationship of speciality, it must prevail over the use of a false document. As a prior condition to assessing the thesis proposed by the technical and material defense, its scope of possibility must be delimited. [Name1] was convicted for preparing and filing a series of false self-assessment declarations, in her capacity as representative of the companies Edificio Adrofer Sociedad Anónima, Consultoría ORS y Asociados Sociedad Anónima and Inversiones Beyof Sociedad Anónima; but also, for drafting others in the name of [Name5]. Regarding these latter declarations, the defense thesis would be meaningless because subparagraph b) of Article 81 of the Ley de Normas y Procedimientos Tributarios is clearly understood within the context of making self-assessments that the subject formulates within the framework of their tax obligations and not when engaging in openly unlawful conduct, by deceiving the tax authority by drafting fictitious self-assessments in the name of another. On the other hand, the thesis "of the existence of error" upheld by the defense loses meaning when rectifying returns are made, precisely because they seek to correct a prior error. Apparently, the accused understood it this way, since she limited her appeal to those self-assessment declarations that did not correspond to [Name5] and were not rectifying. These are the following: D-151 number [Identification1], D-151 number CED2, D-101 number CED3, D-101 number CED4, D-151 number CED5, D-151 number CED6, D-101 number CED7, D-101 number CED8, D-101 number CED9, D-101 number CED10, D-101 number CED11, D-101 number CED12, D-151 number CED13, D-101 number CED14, D-101 number CED15, D-151 number CED16, D-101 number CED17, D-151 number CED18 and D-151 number CED19. It is with respect to such declarations that it must be answered whether subparagraph b), of Article 81 of the Ley de Normas y Procedimientos Tributarios applies, excluding numeral 372 of the Código Penal. This chamber's response is negative, for the reasons set forth below. Note, in the first place, that the regulatory provisions under examination protect completely different legal interests. The use of a false document is located in Title XVI of the Código Penal, referring to crimes against public faith. On this legal interest, doctrine states: "Generally speaking, it can be said that the crimes included in Title XII of our Penal Code [referring to the Argentine one] constitute attacks on public faith, by making signs or documents that account for past events appear authentic and revelatory of truth, when they are not authentic or lie about what is represented. / But all objects of these crimes are indicated by a particular characteristic that the State has granted them with its legal function: either they have been imposed as instruments of faith valid erga omnes, due to the forms of their representation or the person who intervenes in their formation (as occurs with currency and public instruments), or they have been endowed with a certain accrediting presence regarding their origin and content so that they can effectively fulfill the function that the same law assigns them in transactional life (as in negotiable instruments and, in general, in so-called private instruments). But while the former are embodied in what we can properly indicate as the sphere of public faith, the latter participate in it by virtue of the effects that the law grants them in the legal business of individuals, even if they have no consequences for those who are strangers to said business" ([Name8], . Derecho Penal, Parte Especial, t. 2, 6th ed., Buenos Aires, Editorial Astrea, 1998, p. 359). Then, leaving aside the doctrinal discussion of which the same author takes note, as to whether what is actually protected in all those criminal offenses is public faith or "the general trust in the authenticity and veracity of the objects as an indispensable means for them to duly fulfill their legal purposes" (op. cit., pp. 359 and 360), the truth is that it can be concluded, with the cited author, that: "In the process of concretizing the concept, it can be said that the legal interest of public faith is attacked or endangered when the objectivity introduced by the agent's conduct into the object is apt to arouse in anyone the trust that it deserves, for meeting the forms prescribed by law for it to be accepted as representative of the act it expresses and, therefore, as accreditation (proof) of it" (loc. cit. p. 362). In a similar vein, and citing [Name9], [Name10] points out: "[Name9] asked: 'What is that legal interest in falsehoods? Public faith, it is customary to say.' And he explains the matter as follows, which is more than important for the purposes of introducing us to the topic: 'Public faith, means of proof, interests affected or affectable by those means of proof, are stations on the same path: that of the protection of interests; but in punishing falsehoods, a system of preservation is adopted. The injury to interests, already protected by other rules, is not necessary; danger is sufficient. The fight against falsehoods has a preventive character: it is a kind of social disinfection. Thus, it is not necessary for harm to a private individual to occur (not even in that of private documents, for which our Code is satisfied with the intent to harm); but neither is the simple alteration of truth sufficient. Only when the false document constitutes a danger, when it is used or usable as proof to engender a disturbance in legal transactions, will the legal object of the infraction have been reached [...]'" (Donna, Edgardo Alberto. Derecho Penal, parte especial, t. IV, Buenos Aires, Rubinzal Culzoni Editores, 2004, p. 126). The truth is that, whether one speaks of public faith, of trust in the authenticity and veracity of the objects used in legal business, or of the defense of legal transactions, what underlies it is the value given to the fact that people can have security when they use certain legal instruments necessary in social life—at least, as it is conceived today—. That security is undermined by anyone who falsifies, adulterates, deforms, denatures, distorts, twists, or simulates, in its material or ideological content, those instruments. In this chamber's view, understanding the foregoing is of the utmost importance, since the appellate argument of the technical and material defense asserts that, in the case of the self-assessment declarations under review, for some reason, the legislator decided to make a parenthesis in the protection of the legal interest of public faith and simply left it unprotected. By proposing the thesis of apparent concurrence, it is affirmed that this renunciation of protection, derived from the application of the specialty principle, was done in favor of an article that, in reality, was not designed to safeguard such a legal interest, but a completely different one: the public treasury or public finances. Subparagraph b) of Article 81 of the Código de Normas y Procedimientos Tributarios allows punishing conduct that does not even qualify as "willful (dolosas)"; they can even involve simple oversights. Certainly, it also punishes the intentional inclusion of falsehoods in the document, but this is not essential because it is enough for the declarant to incur in inaccuracies for the fine provided for in the same article to be applied. Note that the stipulated penalty is designed exclusively for the tax authority to recover the amounts of which it was deprived; the purpose of going beyond the recovery of what is due and, eventually, achieving the correct adjustment of the declarant's subsequent conduct is not apparent in the provision in question. The fact that the provisions in question protect different legal interests is a clear indicator that an apparent concourse relationship cannot exist between them. As doctrine points out: "For the purposes of establishing when the various violated provisions exclude each other or do not exclude each other, that is, for the purposes of delimiting the apparent concurrence of laws from the ideal concurrence and the material (real) concurrence, there are two complementary criteria. On the one hand, the criterion of the legal interest is used (when the various laws that concur protect the same legal interest, one speaks of an apparent concurrence of offenses, if both violated laws protect different legal interests, one speaks of an ideal concurrence or a real concurrence of crimes) and, on the other hand, the second criterion used is the technical relationship of the criminal offenses to each other. This second criterion is the application of the principles of specialty, subsidiarity, and consumption, which decides whether the criminal offenses confirm their independence or if, on the contrary, one displaces the others" ([Name11], Francisco. Derecho penal, parte general, t. III. San José, [Name12], Editorial Jurídica Continental, 2010, pp. 582 and 583, our emphasis). Certainly, the same author warns us that the first criterion could have exceptions; however, these can be thought of in cases referring to the principle of consumption and not to that of specialty. For example, in the situations that [Name13] cites when explaining the accompanying act, of the homicide that encompasses ("consumes") the damage caused to the victim's clothing; the theft of a firearm regarding its illegal possession upon consummating it; or the violent sexual act and the abrasions ([Name13], .

Criminal Law, General Part. 4th ed., Colombia, Comlibros, 2009, pp. 1008 and 1009). Those cases, which might admit debate regarding their categorization, are among the few examples in which the harm to different legal interests is resolved through the rules of apparent concurrence, and they refer to the principle of consumption. But when it comes to the principle of specialty, it only makes sense for the legislator to operate within the same legal interest, whether to increase its rigor or to decrease it, in consideration of certain specializing characteristics that it values, not to leave it unprotected. That lack of protection would, ultimately, be the result of accepting the appellants' thesis. Finally, if it were argued that in Article 81 of the Tax Code of Standards and Procedures the legislator did decide to punish the transgression of public faith but, for some reason, with lesser severity, the reasoning would lead us to a logical problem. If it is clear, as the defense counsel expressly accepts in their appeal, that said article protects the public treasury, the defense's thesis would lead to having to accept that the legislator provided a greater penalty for one who affects only public faith (imprisonment, according to numeral 372 of the Penal Code), than for one who harms both that legal interest and the public treasury (pursuant to Article 81 of the Tax Code of Standards and Procedures). This ultimately demonstrates, in the opinion of this Chamber, that there is no relationship of specialty between the rules under examination that leads to an apparent concurrence of norms. This appellate court considers that this is, simply, one of those cases in which the legal system confronts the unlawfulness of conduct at different levels, according to the breadth of its consequences. Thus, the worker who insults their employer or intentionally damages their property must not only face the accusation for the respective crime, but may be subject to a legitimate dismissal, according to labor law (Article 81 of the Labor Code); the spouse who attempts against the life of their partner or prostitutes them must not only face criminal justice, but incurs grounds for divorce (Article 48 of the Family Code); the commission of the crime of bribery may also result in the dissolution of the corporation on whose behalf the perpetrator acts (Article 11 of the Law on Liability of Legal Entities for Domestic Bribery, Transnational Bribery and Other Crimes); whoever kills the deceased of an inheritance also assumes the civil consequences of unworthiness (Article 523 of the Civil Code), etcetera. If the harm extends to several areas of regulated social life, the agent must face the response at several levels. That is what occurs in this case: conduct whose repercussions in two different areas are confronted by the legal system in two ways that are not mutually exclusive; that is, the conduct of the accused has criminal consequences and, simultaneously, administrative-tax consequences. Certainly, Article 66 of the Tax Code of Standards and Procedures states that, if the judicial action "[...] results in a conviction of the subject, the infractions that may be considered preparatory acts of the crime, whether actions or omissions included in the criminal type, shall be deemed subsumed within the crime." However, that numeral regulates the principle non bis in idem between tax crimes and administrative infractions. This cannot apply here, because the use of a false document is not a tax crime. Moreover, the Constitutional Chamber itself has accepted the possibility of concurrence of tax crimes and an administrative sanction such as the business closure previously provided for in Article 20 of the General Sales Tax Law, stating: "However, in the hypothesis of applying the business closure, the norm of Article 20 cited implicitly provided a sanction of the ideal concurrence equivalent to the sum of the closure sanction and the corresponding criminal sanction. The thesis that, insofar as this accumulation can be justified as an integration of sanctions for the weighing of a sanction proportionate to the gravity of the fault (objective gravity of the illicit act); or as an integration of principal and accessory sanction, to protect different legal interests, it would not be unconstitutional, unless it exceeds the proportion to the objective gravity of the illicit act" (Voto 2000-08191, of 15:03 hrs. on September 13, 2000). Thus, regarding the defense's assertion that tax legislation includes, as an administrative infraction, the use of false data in declarations, from which lower taxes derive, this court expresses its full agreement; what is not acceptable is to claim that the liability that the legal system imposes for such conduct ends there. Much less can one agree when it is affirmed—incidentally, without accompanying the statement with an argument—that the punished conduct did not affect public faith. The accredited action of inserting false facts into a document and using it is classified by the Penal Code as a crime that affects that legal interest. Moreover, the very argument of apparent concurrence attempted by the defense, to be coherent, must start from the premise that the conduct can indeed be classified as use of a false document, even if it is considered that it fits better under the administrative infraction. Thus, by stating that what the accused [Name1] did does not harm public faith, the defense undermines its own argumentation. In the opinion of this appellate court, the a quo court errs in sustaining the thesis inverse to the defense's, implying that the conduct of the accused only fits within the crime of use of a false document, excluding the administrative infraction. For all that has been said so far, both consequences (criminal and administrative) are compatible. In any case, that argumentation by the trial court does not detract from the accuracy of its conclusion in what is relevant here, that the criminal conduct existed and is punishable. Therefore, the criticisms that the appellant accused directs at the judgment, although correct on certain points, do not manage to undermine the conclusion reached by the court, since in those reasonings, the judicial body sought to rule out the applicability of Article 81 of the Tax Code of Standards and Procedures, which, for what has been said, was neither correct nor necessary to declare the criminal liability of the defendant. The citation of tax law expert Adrián [Name7] Navas refers to what happens when a declaration is filed that rectifies what was previously declared. In the opinion of the attorney, the rectifying declaration causes the previous one to cease to exist, and even, in the computer system, it is erased (judgment, p. 83). The trial court seeks to show that the situation is not among the assumptions on which Dr. [Name7]'s opinion was rendered. However, this was unnecessary, because what was said by this expert is only relevant in the scope of his expertise: in the tax matter. His opinion may be correct, or not, but that is a topic related to the administrative consequences of [Name1]'s conduct, outside the criminal sphere. Therefore, the court did not need to direct its argumentation in that sense. The deliberations on abuse of rights were also aimed at discarding the application of the administrative consequence to the act; in the same vein was directed the entire exposition referring to tax law and the civic duty to assume the burdens of the lucrative activity carried out. All of this led the court to hold that the intentional falsity verified in the declarations could not be included in the regulation of Article 81 of the Tax Code of Standards and Procedures. However, that is not correct. As seen in the citation made at the beginning of this whereas clause, said numeral refers that the inexactness it regulates and punishes contemplates: "The use of false, incomplete or inexact data, from which a lesser tax or a lesser balance payable or a greater balance in favor of the taxpayer or responsible person derives." And while the terms "incomplete" and "inexact" usually evoke situations of carelessness; "falsity" is more closely related to a conscious or intentional action. In any case, as is deduced from what has been said throughout this entire whereas clause, the criterion of this Chamber is that it was idle for the trial court to engage in refuting the application of tax legislation, when what is important is that it does not exclude the application of criminal law. The accused appellant argues that the annulment of the conviction must lead to the annulment of the three-year penalty for each crime, since the court founded it, repeatedly, on the fact that thirty-two crimes of use of a false document were committed. Not upholding her challenge on that point implies that the consequence she intended regarding the punishment is also not appropriate, without prejudice to what will be said later when the specific argumentation raised regarding the imposed penalties is evaluated. For the foregoing, the rejection of the objections. Considerations on an alternative classification of the facts. Although the appellants did not raise it as part of their argumentation, the court evaluated, during deliberation, an alternative thesis. It would maintain that the conduct of the accused actually constituted several crimes of fraud against the public treasury, according to the provisions of Article 92 of the Tax Code of Standards and Procedures. They would be typified, unlawful, and culpable actions, but not punishable criminally, due to the absence of an objective condition of punishability (the minimum amount of five hundred base salaries in the defraudation). Each crime of fraud against the public treasury would have the virtue of excluding, by consumption / specialty—the first principle being a version of the second—any crime of use of a false document that could have been configured; which would only occur because the falsified documents are of a private and not public nature. What is not excluded is the possibility that the underlying conduct (a generic tax illicit act, which can be a crime or an administrative infraction) could be punished administratively. Thus, in an "oblique" manner, one would have to end up agreeing with the challengers, for reasons different from those argued in their appeals. The majority of this Chamber discards that reading of the norms involved, for the reasons that are set forth below. A.- On the objective condition of punishability. The key to said explanation rests on the wording of Article 92 of the Tax Code of Standards and Procedures, which in relevant part declares: "Whoever, by action or omission, defrauds the Public Treasury with the purpose of obtaining, for themselves or for a third party, a patrimonial benefit, evading the payment of taxes, amounts withheld or that should have been withheld, or income on account of compensations in kind or unduly obtaining refunds or enjoying tax benefits in the same manner, provided that the amount of the defrauded quota, the uncollected amount of the withholdings or income on account or the refunds or tax benefits unduly obtained or enjoyed exceeds five hundred base salaries, shall be punished with a prison penalty of five to ten years. / For the purposes of the provisions in the preceding paragraph, it shall be understood that: / a) The amount of five hundred base salaries shall be considered an objective condition of punishability [...]". That wording is the product of the reform made through Article 1 of Law number 9069 of September 10, 2012, "Law for the Strengthening of Tax Management". It is from that reform onward that it is established that the referred amount shall be considered an objective condition of punishability; the previous wording did not contain that precision. It is appropriate to examine, then, what that legal category to which the norm refers consists of. It is understood as such: "Objective condition that supposes the production of an uncertain and, according to some, future event, required by law in some crimes in addition to the typified conduct and that is independent of the action of the perpetrator" (Pan-Hispanic Dictionary of Legal Spanish, retrieved from https://dpej.rae.es/lema/condici%C3%B3n-objetiva-de-punibilidad#:~:text=Pen.,de%20la%20acci%C3%B3n%20del%20autor). As this condition escapes the control of the perpetrator, it is not—nor does it make sense to expect it to be—encompassed by their intent or negligence (depending on the case). As examples, certain requirements of international reciprocity are cited, which condition the punishability of crimes committed against Heads of State and internationally protected persons in some countries; also the eventuality of preferential trial rights, in certain crimes committed using mechanical means or media (see source just cited); the commission of an unlawful act, in the case of total intoxication; death or serious injuries in a brawl; suspension of payments and opening of insolvency proceedings, in the case of punishable bankruptcies (Roxin, Claus. Criminal Law, General Part, t. I, 2nd ed., Civitas, 1997, pp. 970 and 971); or the amount of contraband in certain customs crimes ([Name14], . Objective Conditions of Punishability, in Revista Jurídica Cajamarca, retrieved from https://www.derechoycambiosocial.com/RJC/Revista14/punibilidad.htm, section 3). The controversial characteristic of said conditions is that, due to their uncertain and objective nature, they must not be encompassed by the subjective element of the type, despite being determinative for the sanction. Some authors maintain that they respect the principle of culpability and do not fall into objective liability, because they simply restrict the field of culpability; others, on the other hand, point out that, if the absence of such conditions gives rise to impunity, then their presence grounds the punishment, which is questionable when dealing with an element that is not governed by the intentional conduct of the subject (on the positions in this regard, see the last two works cited). Regardless of the position assumed in this regard, the truth is that what has been explained allows us to understand what was intended with the reform that granted the amount of the fraud the character of an objective condition of punishability. It was intended, as occurs in other legislations, to remove the amount of the fraud from the domain of intent, making futile any defense that sought to allege an error regarding it. As seen above, the wording of Article 92 encompasses very diverse forms of commission, some of which may imply uncertain economic results. In such cases, the inclusion of the condition prevents the perpetrator from successfully alleging that they were unaware that the defrauded amount exceeded five hundred base salaries; their conduct is intentional even when they had not considered that possibility, because the objective condition of punishability goes beyond the wrongfulness and, consequently, does not have to be covered by the knowledge and will to carry out the act. The division between administrative infractions and crimes already existed before the reform and continued to exist after it; the only thing that the inclusion of that institute contributes is what has just been indicated. Therefore, it is not acceptable, for the majority of the court, to understand that the legislator intended to generate, from the reform, a kind of limbo for some conducts that are neither administrative infractions nor punishable crimes, but a special category of crimes without criminal sanction or administrative consequence. It is worth dwelling on this last point, since the proposed alternative interpretation, taken to its ultimate consequences, should lead to the practical effect of impunity for all intentional fraudulent conduct, whose amount was less than five hundred base salaries. Article 66 of the Tax Code of Standards and Procedures provides: "The verification of tax illicit acts must respect the principle 'non bis in idem', according to the following rules: / a) In cases where the infractions may constitute tax crimes, the Administration shall transfer the matter to the competent jurisdiction, according to Article 89, and shall abstain from continuing the sanctioning procedure while the judicial authority does not issue a final judgment. The sanction of the judicial authority shall exclude the imposition of administrative sanction for the same acts. / Should the existence of the crime not have been deemed, the Administration shall continue the sanctioning file based on the facts considered by the courts as proven [...]" (underscoring supplied). A contrario sensu, if it is deemed that the conduct in question is criminal, in what way can the referral of the matter to the administration be justified so that it sanctions the tax infraction, when it does not exceed five hundred base salaries? Article 90 of the same code provides: "[...] In a judgment, the criminal judge shall decide on the application of the criminal tax sanctions to the accused. In the event of conviction, they shall determine the amount of the principal and accessory tax obligations, surcharges and interest, directly linked to the facts constituting criminal tax sanctions, as well as the respective costs" (underscoring ours). How could the unpaid amounts be collected if there was no conviction? Coherence would impose the total impunity of such conducts; in our opinion, the conclusion of the alternative thesis, which suggests the possibility of collection based on Article 81 of the code under comment, does not consider those norms and enters into contradiction. This is particularly paradoxical, if one considers that the conducts that can fit the alternative explanation are only intentional infractions. The behaviors regulated in Article 81 of the Tax Code of Standards and Procedures do not necessarily have to be intentional; on this point, the criterion of the court is unanimous. There are contemplated a series of actions that can be categorized, even, as merely careless. The law decided to dispense with the subjective factor and punished from malicious proceeding to simple error. But only those most serious actions, the intentional ones, have the possibility of going on to configure crimes (because there is no negligent fraud against the treasury) and, consequently, only they can be encompassed by the alternative theory criticized here. These, as stated, would be left without an administrative sanction, but the careless actions could be punished, which makes no sense: the most reprehensible is forgiven and what is socially less offensive is punished. All of the foregoing leads to reaffirming the meaning of what was provided by the legislator in the case of the objective condition of punishability in Article 92 of the Tax Code of Standards and Procedures: by virtue of it, it is not appropriate to allege error or lack of knowledge regarding the defrauded amount, even when in the specific case there may be some degree of uncertainty about it, since the same constitutes an objective condition of punishability, which does not have to be covered by intent. In the case under examination, that uncertainty does not even exist, because the perpetrator always knew how much she was failing to contribute to the State coffers. Hence, it makes no sense to speak of an objective condition of punishability in this specific matter. To the foregoing is added a particular problem of the case: the qualification of the amount of the fraud as an objective condition of punishability arose, as has been indicated, through a legal reform on September tenth, two thousand twelve. But the judged conducts include facts from two thousand nine to two thousand thirteen. Its retroactive application has been sought to be justified by pointing out that the change was an authentic interpretation of the already existing norm; however, there is no support whatsoever for such an assertion. In reality, it was a comprehensive reform, which changed many articles of the referred code, completely varying the wording of Article 92. Moreover, it was not a modification more favorable to the accused, insofar as it excludes the necessity for the subjective element to imply the knowledge and will to defraud a specific sum; it is, rather, a modification that aggravated the situation of the potential perpetrator of that crime. Consequently, it is not a legal reform that can be applied retroactively. Thus, the thesis would not even be applicable to the majority of the documents for which the accused was punished. B.- On the apparent concurrence of norms. On the other hand, even if it were accepted that what the accused committed were crimes of fraud against the public treasury, it cannot be maintained that between this type of crime and that of use of a false document there exists a relationship of specialty, by virtue of which the latter is absorbed by the former. In the first place, due to the difference in legal interests involved in each case, as explained when comparing numeral 372 of the Penal Code with Article 81 of the Law of Tax Standards and Procedures. Second, because many of the ways of defrauding the treasury do not even require the preparation of a document (one thinks of the omission, expressly contemplated in the type, in which nothing is falsified or presented). From no point of view can fraud against the public treasury be classified as a species of the crime of use of a false document. Perhaps for this reason, the thesis under comment must resort to the relationship of consumption and not the specialty alleged by the appellants, pointing out that, ultimately, the latter is a version of a relationship of specialty. But in reality, this is not so; one and the other are forms of apparent concurrence that, although sometimes treated in a confusing manner by the doctrine, cannot for that reason be equated. The topic of concurrence is even more confusing, if it is affirmed that absorption does not occur when a public document is involved, but it does when it is a private one. Numeral 372 of the Penal Code punishes the use of a false document of any nature, public or private. If so, it remains unexplained what norm or principle would allow for excluding the application of the same crime in some cases and not in others? How is it explained, legally, that the same article is, sometimes yes and sometimes no, subjected to a relationship of consumption? For the foregoing, the majority rejects that reading of the situation raised. Instead, we consider accurate the implicit interpretation that underlies the judgment, and even in the defense's own appeals, according to which the amount of five hundred base salaries (joined to the other objective elements that are not the object of analysis here) determines whether one is facing a crime or an administrative infraction, without there being a diffuse situation, intermediate, between the two.

**IV.-** The **second objection** of the accused's defenders is for incorrect legal reasoning. In proven facts 1 and 2 for the two thousand nine period, the court concluded that the accused prepared and filed the D 151 declaration number [Identificacion1], in the name of Edificio Adrofer Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused made and filed said declaration. Report 2015-1402-AED, in its results 55 and 61 (pp. 43 and 47), demonstrates that the handwriting features of the declaration do not correspond with those of the accused. In the interview of the Intelligence Directorate of the Tax Administration (annexes of the investigation report of the "[Name1] case"), [Name6] attested that she made the tax declarations for the defendant's companies. Additionally, this declaration does not appear in the documentary evidence, but only a detail of third-party declarations, without the accused's signature. The sheet on which D-151 declarations are signed does not contain the supplier detail; rather, it is in an annex. Nor is there proof that the accused filed this declaration in the banking entity. As a **third objection**, incorrect legal reasoning is claimed. In proven facts 3 and 4 for the two thousand nine period, the court concluded that the accused prepared and filed the D 151 declaration number [Identificacion2], in the name of Consultoría ORS y Asociados Sociedad Anónima. But the testimonial, documentary, and expert evidence does not prove that the accused made and filed said declaration. Report 2015-1402-AED, in its results 64 and 70 (pp. 49 and 52), demonstrates that the handwriting features of the declaration do not correspond with those of the accused. In the interview of the Intelligence Directorate of the Tax Administration (annexes of the investigation report of the "[Name1] case"), [Name6] attested that she made the tax declarations for the defendant's companies. The sheet on which D-151 declarations are signed does not contain the supplier detail; rather, it is in an annex. Nor is there proof that the accused filed this declaration in the banking entity. As a **fourth objection**, incorrect legal reasoning is alleged.

In proven facts 5 and 6 of the two thousand nine period, the trial court concluded that the defendant prepared and filed the D 151 declaration number [Identificacion19], in the name of [Nombre5]. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. Report 2015-1402-AED, in its result 36 (p. 35), demonstrates that the handwriting features of the declaration do not correspond to those of the accused. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of Mrs. [Nombre5]. There is also no evidence that the defendant filed this declaration at the banking institution. As a **fifth objection**, incorrect legal reasoning is claimed. In proven fact 7 of the two thousand nine period, the trial court concluded that the defendant prepared the D 101 declaration number [Identificacion3], in the name of Edificio Adrofer Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. Report 2015-1402-AED, in its result 26 (p. 30), demonstrates that the handwriting features of the declaration do not correspond to those of the accused. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the defendant's companies. There is also no evidence that the defendant filed this declaration at the banking institution. As a **sixth ground**, incorrect legal reasoning is claimed. In proven fact 8 of the two thousand nine period, the trial court concluded that the defendant prepared the D 101 declaration number [Identificacion4], in the name of Consultoría ORS y Asociados Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared said declaration. Report 2015-1402-AED, in its result 32 (p. 34), demonstrates that the handwriting features of the declaration do not correspond to those of the accused. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the defendant's companies. As a **seventh claim**, incorrect legal reasoning is argued. In proven fact 9 of the two thousand nine period, the trial court concluded that the defendant filed the D 101 declarations number [Identificacion20], in the name of [Nombre5]; number [Identificacion3] in the name of Edificio Adrofer Sociedad Anónima; and number [Identificacion4] in the name of Consultoría ORS y Asociados Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant filed said declarations. There is also no evidence that the defendant filed this declaration at the banking institution. As an **eighth reproach**, incorrect legal reasoning is alleged. In proven facts 1 and 2 of the two thousand ten period, the trial court concluded that the defendant prepared the D 151 declaration number [Identificacion5], in the name of Edificio Adrofer Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the defendant's companies. Additionally, this declaration is not contained in the documentary evidence, but rather a detail of third-party declarations, without the defendant's signature. The sheet on which D 151 declarations are signed does not contain the detail of suppliers; rather, this is in an annex. Likewise, it was proven that this declaration was filed by Mrs. [Nombre6], through her husband [Nombre15]'s user account. As a **ninth objection**, incorrect legal reasoning is invoked. In proven facts 3 and 4 of the two thousand ten period, the trial court concluded that the defendant prepared and filed the D 151 declaration number 15113003880516, in the name of Consultoría ORS Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the defendant's companies. The sheet on which D 151 declarations are signed does not contain the detail of suppliers; rather, this is in an annex. Likewise, it was held as proven that the declaration was filed by [Nombre6] through her husband [Nombre15]'s user account. As a **tenth reproach**, incorrect legal reasoning is alleged. In proven facts 5 and 6 of the two thousand ten period, the trial court concluded that the defendant prepared and filed the D 151 declaration number [Identificacion21], in the name of [Nombre5]. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of [Nombre5]. Likewise, it was held as proven that this declaration was filed by [Nombre6] through her husband [Nombre15]'s user account. As an **eleventh ground**, incorrect legal reasoning is alleged. In proven fact 7 of the two thousand ten period, the trial court concluded that the defendant prepared the D 101 declaration number [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the defendant's companies. As a **twelfth ground**, incorrect legal reasoning is alleged. In proven fact 8 of the two thousand ten period, the trial court concluded that the defendant prepared the D 101 declaration number [Identificacion7], in the name of Consultores ORS y Asociados Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. Report 2015-1402-AED, in its result 32 (p. 34), demonstrates that the handwriting features of the declaration do not correspond to those of the accused. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the defendant's companies. As a **thirteenth ground**, incorrect legal reasoning is claimed. In proven fact 9 of the two thousand ten period, the trial court concluded that the defendant filed the D 101 declarations number [Identificacion8], in the name of Inversiones Beyof Sociedad Anónima; number [Identificacion7], in the name of Consultoría ORS y Asociados Sociedad Anónima; number [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima; and number 101225706772, in the name of [Nombre5]. However, the testimonial, documentary, and expert evidence does not prove that the defendant filed said declarations. There is no evidence that the defendant filed this declaration at the banking institution. As a **fourteenth ground**, incorrect legal reasoning is alleged. In proven fact 1 of the two thousand eleven period, the trial court concluded that the defendant prepared the D 101 declaration number [Identificacion9], in the name of Inversiones Beyof Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. The declaration was made through the [...] system, so it did not have to be done by hand. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the defendant's companies. Even it was held as proven that this declaration was filed by [Nombre6]. As a **fifteenth ground**, incorrect legal reasoning is alleged. In proven fact 2 of the two thousand eleven period, the trial court concluded that the defendant prepared the D 101 declaration number [Identificacion22], in the name of [Nombre5]. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. At the time this declaration was made, it was done through the [...] system, so it did not have to be done by hand. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the defendant's companies. It was even held as proven that this declaration was filed by [Nombre6]. As a **sixteenth ground**, incorrect legal reasoning is claimed. In proven fact 3 of the two thousand eleven period, the trial court concluded that the defendant filed the D 101 declarations number [Identificacion9], in the name of Inversiones Beyof Sociedad Anónima; number [Identificacion22], in the name of [Nombre5]; number [Identificacion10], in the name of Edifico Adrofer Sociedad Anónima; and number [Identificacion11], in the name of Consultoría ORS y Asociados Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declarations. There is also no evidence that the defendant filed this declaration at the banking institution. As a **seventeenth ground**, incorrect legal reasoning is claimed. In proven fact 4 of the two thousand eleven period, the trial court concluded that the defendant prepared the D 151 declaration number [Identificacion12], in the name of Inversiones Beyof Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. At the time of preparing this declaration, it was done through the [...] system, so it should not have been done by hand. Additionally, this declaration is not contained in the documentary evidence, but rather a detail of third-party declarations, without the defendant's signature. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the defendant's companies. Even it was held as proven that the declaration was filed by [Nombre6]. As an **eighteenth ground**, incorrect legal reasoning is alleged. In proven fact 5 of the two thousand eleven period, the trial court concluded that the defendant prepared and filed the D 151 declaration number [Identificacion23], in the name of [Nombre5]. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of [Nombre5]. Even it was held as demonstrated that this declaration was filed by [Nombre6]. As a **nineteenth ground**, incorrect legal reasoning is alleged. In proven fact 6 of the two thousand eleven period, the trial court concluded that the defendant prepared and filed the amended D 151 declaration number [Identificacion24], in the name of [Nombre5]. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. At the time of preparing this declaration, it was done through the [...] system, so it should not have been done by hand. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared and filed the tax declarations of [Nombre5]. Even it was held as proven that the declaration was filed by [Nombre6]. As a **twenty-first ground**, incorrect legal reasoning is claimed. In proven fact 1 of the two thousand twelve period, the trial court concluded that the defendant prepared and filed the D 101 declaration number [Identificacion13], in the name of Inversiones Beyof Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. At the time of preparing this declaration, it was done through the [...] system, so it should not have been done by hand. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the defendant's companies. Even it was held as proven that this declaration was filed by [Nombre6]. As a **twenty-second ground**, incorrect legal reasoning is claimed. In proven fact 2 of the two thousand twelve period, the trial court concluded that the defendant prepared and filed the D 101 declaration number [Identificacion14], in the name of Inversiones Beyof Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. At the time of preparing this declaration, it was done through the [...] system, so it should not have been done by hand. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the defendant's companies. Even it was held as proven that the declaration was filed by [Nombre6]. As a **twenty-third ground**, incorrect legal reasoning is claimed. In proven fact 3 of the two thousand twelve period, the trial court concluded that the defendant prepared and filed the amended D 101 declaration number [Identificacion25], in the name of [Nombre5]. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. At the time of preparing this declaration, it was done through the [...] system, so it should not have been done by hand. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of [Nombre5]. Even it was held as proven that this declaration was filed by [Nombre6]. As a **twenty-fourth ground**, incorrect legal reasoning is alleged. In proven fact 4 of the two thousand twelve period, the trial court concluded that the defendant prepared and filed the D 151 declaration number [Identificacion15], in the name of Inversiones Beyof Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. At the time of preparing this declaration, it was done through the [...] system, so it should not have been done by hand. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proves that she prepared the tax declarations of the defendant's companies. Even it was held as proven that this declaration was filed by [Nombre6]. As a **twenty-fifth ground**, incorrect legal reasoning is claimed. In proven fact 5 of the two thousand twelve period, the trial court concluded that the defendant prepared and filed the D 151 declaration number [Identificacion26], in the name of [Nombre5]. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. At the time of preparing this declaration, it was done through the [...] system, so it should not have been done by hand. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of [Nombre5]. Even it was held as proven that this declaration was filed by [Nombre6]. As a **twenty-sixth ground**, incorrect legal reasoning is claimed. In proven fact 6 of the two thousand twelve period, the trial court concluded that the defendant prepared and filed the amended D 151 declaration number [Identificacion27], in the name of [Nombre5]. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. At the time of preparing this declaration, it was done through the [...] system, so it should not have been done by hand. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the companies of [Nombre5]. Even it was held as proven that this declaration was filed by [Nombre6]. As a **twenty-seventh ground**, incorrect legal reasoning is claimed. In proven fact 1 of the two thousand thirteen period, the trial court concluded that the defendant prepared and filed the D 101 declaration number [Identificacion16], in the name of Inversiones Beyof Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. At the time of preparing this declaration, it was done through the [...] system, so it should not have been done by hand. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations of the defendant's companies. Even it was held as proven that this declaration was filed by [Nombre6]. As a **twenty-eighth ground**, incorrect legal reasoning is alleged. In proven fact 2 of the two thousand thirteen period, the trial court concluded that the defendant prepared and filed the D 101 declaration number [Identificacion28], in the name of [Nombre5]. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. At the time of preparing this declaration, it was done through the [...] system, so it should not have been done by hand. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report “[Nombre1] case”), [Nombre6] proves that she prepared the tax declarations of [Nombre5]. Even it was held as proven that this declaration was filed by [Nombre6]. As a **twenty-ninth ground**, incorrect legal reasoning is invoked. In proven fact 3 of the two thousand thirteen period, the trial court concluded that the defendant prepared and filed the D 151 declaration number [Identificacion17], in the name of Inversiones Beyof Sociedad Anónima. However, the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed said declaration. At the time of preparing this declaration, it was done through the [...] system, so it should not have been done by hand. In an interview with the Directorate of Intelligence of the Tax Administration (annexes of the investigation report “[Nombre1] case”), [Nombre6] proves that she prepared the tax declarations of the defendant's companies. Even it was held as proven that this declaration was filed by [Nombre6]. As a **thirtieth ground**, incorrect legal reasoning is claimed. In proven fact 4 of the two thousand thirteen period, the trial court concluded that the defendant prepared and filed the D 151 declaration number [Identificacion18], in the name of Inversiones Beyof Sociedad Anónima.

But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that declaration. At the time this declaration was made, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for the defendant's companies. In fact, it was considered proven that this declaration was filed by [Nombre6]. As the **thirty-first ground**, incorrect legal reasoning is faulted. In proven fact 5 for the two thousand thirteen period, the court concluded that the defendant prepared and filed declaration D 151 number [Identificacion29], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that declaration. At the time this declaration was made, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for [Nombre5]. In fact, it was considered proven that this declaration was filed by [Nombre6]. As the **thirty-second ground**, incorrect legal reasoning is claimed. In proven fact 6 for the two thousand thirteen period, the court concluded that the defendant prepared and filed the amended declaration (declaración rectificativa) D 151 number [Identificacion30], in the name of [Nombre5]. But the testimonial, documentary, and expert evidence does not prove that the defendant prepared and filed that declaration. At the time this declaration was made, it was done through the [...] system, so it should not have been done by hand. In an interview with the Dirección de Inteligencia de la Administración Tributaria (annexes to the investigation report of the “[Nombre1] case”), [Nombre6] proved that she prepared the tax declarations for [Nombre5]. In fact, it was considered proven that this declaration was filed by [Nombre6].

**V.- Due to their thematic unity, the grounds referred to in the preceding recital will be addressed jointly, and they are hereby dismissed.** As can be seen in the formulation of the objections, the appellants decided to challenge, one by one, the different events for which the accused [Nombre1] was convicted. To provide them with an adequate response, however, this Chamber must take a different path. The accused was not charged with committing isolated and unconnected criminal acts; rather, it is stated that she was linked to, and actively participated in, a criminal network that carried out a plurality of actions over several years, with the participation not only of herself but also of third parties. The criminal activity—it is said—had a certain level of complexity and required cooperation. That being so, if one seeks to establish the truth of what happened, the first thing that must be done is to obtain a general overview, starting, naturally, from the elements of evidence. Only after understanding, in a global manner, what was done, can one return to the particular, to determine what role the defendant played—if any—in that factual framework. One must start from the particular data to arrive at that general framework; from the analysis of the concrete data to the all-encompassing vision, and then return to the particular. That was the path taken by the trial court (judgment uploaded to the virtual desktop, pp. 127 to 183), and reference will be made to it, although not necessarily in the same order of exposition, but making it clear that the comprehensive analysis of all the elements is already found in the decision on the merits. It is opportune to indicate that the discovery of what the trial court has called the *"complex plan cloaked in legality"* (judgment, p. 127) begins with the news received by Mrs. [Nombre5] that she was registered as a taxpayer (obligada tributaria) with the Ministerio de Hacienda. The revelation occurred when her son tried to insure her as a "non-contributor," at which time the Caja Costarricense de Seguro Social, performing a cross-check of data, determined that she appeared as an income taxpayer, by virtue of supposed professional services provided over the years to some companies. Mrs. [Nombre5] appeared at trial to ratify what she has repeated time and again, not only during the proceedings but before them, within the administrative investigation conducted by the Ministerio de Hacienda; that is, that *"she never provided these services to the companies, nor could she even provide them since she was not and is not a professional"* (p. 130). There is no doubt, and it has not even been the subject of controversy, that Mrs. [Nombre5] was not the author of the self-assessment declarations (declaraciones autoliquidaciones) that appeared in her name at the Ministerio de Hacienda; in fact, the pertinent handwriting analysis (pruebas grafoscópicas) were performed, confirming the foregoing. In the face of that irrefutable reality, derived both from the statement of the affected party herself and from the expert evidence, one must ask whether it could have been a mistake by some third party. A basic analysis is enough to understand that this possibility must be dismissed *in limine*, since the declarations in question are documents in which the personal data of the person appearing as the declarant are recorded. This means that any third party who had made the assessment would have had to consult or ascertain the declarant's personal information and record it in the document, knowing that they were doing so. Whoever seeks out and records a third party's information in a declaration is necessarily performing a conscious behavior, not an unthinking or accidental action; such declarations cannot be completed without knowing what one is doing. This leads us to the person who filed the false declarations: the accounting assistant [Nombre6]. According to the report made in the administrative venue by the Dirección de Inteligencia of the Dirección General de la Tributación, *"It was also determined, from the analysis carried out on the Portal de Tributación Directa, they were filed by user [Nombre6], identity document number CED20"* (judgment, p. 141) and it was further specified: *"Regarding the supposed accountants, the investigation highlighted the following data: [Nombre6] and Mr. [Nombre15] were located, in order for them to clarify the situation, which they did on August 8, 2014. [Nombre15] indicated that he was an accountant and registered with the respective professional association. He denied having a relationship with the defendant [Nombre1] and indicated that he did not know [Nombre5]. The Sección de Inteligencia Tributaria was able to establish from the interviews that the original accountant for the companies in question was Mr. [Nombre16], who had died on June 4, 2008, and that Mrs. [Nombre6] who was his accounting assistant, after his death continued with the client portfolio that he had, in the interview she indicated having 'inherited' that list of clients and that she was supervised by her husband [Nombre15]. It was also possible to establish that Mrs. [Nombre6] is not a public accountant, but rather worked as an accounting assistant. She acknowledged knowing Mrs. [Nombre1] [Nombre1] and the related companies and family members, with whom she maintained a working relationship. She indicated that she did not know [Nombre5], but that nonetheless she has filed declarations for her through the EDDI system and filled out tax forms by hand"* (pp. 141 and 142). In fact, the appellants do not seem to have any problem accepting the participation of Mrs. Vargas Jiménez in the act, to the point that they make her the cornerstone of their argument, thereby attempting to discharge the responsibility of [Nombre1]. Having established that said filing and, in some cases, the manual preparation of the forms is attributable to [Nombre6], one must ask the reason for such action. Evidently, by recording false information in the declarations and doing so over the years, she exposed herself to criminal punishment, so common sense and experience indicate that she must have had some motivation to do so. As stated earlier, she acknowledged that the defendant [Nombre1] was her client; in fact, citing the investigation, the court indicated: *"the companies send them the documentation and they prepare the declarations, upon preparing them they deliver them to the companies, it was said that they sent them to Mrs. [Nombre1], they were delivered to her physically, when it changed to digital, they prepared (sic) and uploaded them in the system, therefore, she continued, she, the person to whom professional services were paid was her husband"* (p. 153). Additionally, the falsehoods in the declarations of Mrs. [Nombre5] lead to three companies that the accused represents: Edificio Adrofer Sociedad Anónima, Consultoría ORS y Asociados Sociedad Anónima, and Inversiones Beyof Sociedad Anónima (pp. 133 and 134). Indeed, each time it was falsely indicated that Mrs. [Nombre5] provided professional services, it was in relation to one of those three companies for which the defendant held power of attorney. The *a quo* court noted in this regard: *"At the outset, it was possible to verify that indeed, at least three companies reported having Mrs. [Nombre5] as a provider for professional services, notably among these ORS, Beyof and the other Adrofer. The 'cross-check' was performed, since these reported making payment to her for professional services and on the other hand, it was possible to establish, through the study of the Tax Administration's database, that there were declarations from Mrs. [Nombre5]: 'In which she declared having provided services to these three companies, in her name she declared that she had three clients' and on the other hand, the data was obtained that these three clients for their part were reporting these payments, regarding this particular the witness said: 'The cross-check was consistent, she indicates having those clients and the clients indicate having her as a provider.'"* (p. 151). There was an exact match: the amounts that Mrs. [Nombre5] indicated in one declaration having received for professional services were equivalent to those that each company said it had paid her. But as it has been established that Mrs. [Nombre5] did not make the declarations filed in her name, there was no benefit for her. The gain was for the companies that, by reporting the payment of those services, could deduct them when they paid tax on their income; a lower net profit had the effect of reducing the amount of their taxes. But the coincidence did not exist solely in the content of the declarations. The court pointed out that *"Regarding the formal duties of filing declarations, the following coincidences were detected: They have the same filing date. They were filed at the same bank branch. That from the moment electronic filing was required, both the declarations of the companies ORS, ADROFER Y BEYOF, as well as the declarations of [Nombre5], were made under the user code belonging to Mrs. [Nombre6]. Finally, it highlights, and it is of interest for this judgment, the fact that the declarations of Mrs. [Nombre5], both informative and self-assessments, were filed by [Nombre15] and by [Nombre6]"* (p. 143). And later it added: *"the respective forms were filed simultaneously: 'They were filed at the same bank branch, on the same day, both those of the company and those of Mrs. [Nombre5], even at the same teller window and when they became digital later, they were filed by the same person, it was the same person who filed them.' The people who appeared on the forms as the 'contacts' were also analyzed, determining that the person who filed the declarations was Mrs. [Nombre6], it being the case that this person was not fictitious, but real"* (p. 152). See, then, the surprising coincidence that would have had to occur if the declarations had actually been filed by their legitimate holders; this would imply the coincidence that the person who filed the company declarations coincided in place and time with Mrs. [Nombre5] in every case. When filed digitally, it was done through the "user" of the person who admitted doing the accounting work for the accused or that of her husband [Nombre15]. All of this, without forgetting that the person who appears in the declarations as the "contact person" is that accounting assistant who, however, maintained that she had not known the aggrieved party [Nombre5] (p. 146). It has already been shown that the defendant [Nombre1] represented the three companies benefited by the existence of Mrs. [Nombre5]'s false declarations, which corresponded exactly with those of the companies in question. But, in addition, there is evidence that, over the years, she prepared and signed many of the false declarations corresponding to those companies. These are D-101 number [Identificacion3] and D-101 number [Identificacion4], in the year two thousand nine; D-101 number [Identificacion6], D-101 number [Identificacion7], for the two thousand ten period; D-101 number [Identificacion9], for the year two thousand eleven (pp. 185 to 192); she also prepared those identified as D-101 number CED9, D-101 number CED11, and D-101 number CED12, but for reasons that will be explained in recital XII, they are not to be considered at this time. The handwriting analysis (prueba grafoscópica) performed on the referred declarations allowed establishing, scientifically, that the defendant prepared and/or signed those declarations directly. But as stated earlier, the stratagem was effective insofar as the falsehood in the expenses of the companies' declarations matched perfectly with the fictitious declarations of Mrs. [Nombre5], which implies that whoever prepared the former must have done so with full knowledge of what was recorded in the latter; otherwise, the deception of the tax system would crumble. Whoever, like the accused, knew that she was recording false data in the income tax declarations, had to know the concomitant falsehood in the declarations of Mrs. [Nombre5], so that there would be no fissures in the illegal mechanism. But, in addition, this demonstrates that she knew the details of the fraudulent procedure from which, ultimately, her represented companies were the great beneficiaries. When the illicit conduct began to come to light, new pieces of circumstantial evidence (indicios) emerged. One of them is that, also with astonishing coincidence, actions aimed at erasing the traces of the crime were carried out. Amended declarations (declaraciones rectificativas) were prepared by the person who, it is reiterated, had indicated having no relationship with Mrs. Otárola: [Nombre6]. The *a quo* court states in this regard: *"In the report, it becomes evident that in the case of [Nombre5], her income tax declarations were amended, leaving the declarations at zero and the informative declarations were annulled where they indicated that Inversiones Beyof had paid professional services to Mrs. [Nombre5], leaving in the informative database for one colón, where it was recorded that Mrs. [Nombre6], paid [Nombre5] the sum of one colón for professional services, in this regard the report states: 'making it evident that the process was carried out by Mrs. [Nombre6] [Nombre6], the accountant of Mrs. [Nombre1] and who said she did not know Mrs. [Nombre5], therefore, if she does not know Mrs. [Nombre5], how is it that she has the access to know the declarations that had been filed in the name of [Nombre5], since to make an amendment, she must have in her possession the information of the declaration to be amended, be it the taxpayer's personal data, the declaration number, or the amounts. This modification to erase the trace that Mrs. [Nombre5] had no relationship with the companies of Mrs. [Nombre1], she manages to do it for three years which was what the system allowed her, but not for the years two thousand eleven' (Cf. report of the Dirección de Inteligencia Tributaria, page 58. Added to the electronic file). With the foregoing, the question arises of how they were able to make the amendments and annulments of the declarations, because the only way to make these modifications and annulments is through the original declarations, however, the accountants did not have access to said information"* (pp. 143 and 144). This is confirmed through the declaration of witness [Nombre17], an investigator from the Dirección de Inteligencia Tributaria, from which the court highlighted the following: *"The witness also referred to the amended declarations (declaraciones rectificativas), which he was able to verify and document even in the report as we saw, regarding them he indicated that they occurred in the year 2014, specifically on the tenth day of July, noting that it was Mrs. [Nombre6] who: 'logs in with a password and modifies all of Mrs. [Nombre5]'s declarations, the system allowed her to go back three periods, up to income tax and the D-151 declarations, all modified on the same day, July 2014, on August 20, there was another modification in the informative declarations of Mrs. [Nombre5], the system allows for clarifications/amendments, it was made for the amount of one colón, imputed to [Nombre6], as if this Mrs. [Nombre5] had paid her the amount of one colón, I don't remember the reason,' regarding which he considered that the reason for this proceeding, taking into account particularly from the perspective of the Dirección de Inteligencia, was that with this 'it wanted to erase the tax trace of those companies.'"* (pp. 146 and 147). And the court also highlighted an important detail narrated by Mr. [Nombre17], which reveals the irregularity they sought to hide; the *a quo* court states: *"Regarding the scope of the amended declarations, the witness indicated that in any type of declaration, when the taxpayer: 'Commits an accounting error, or in the transcription an erroneous figure was recorded, fewer or more income or expenses were declared.' He clarified with respect to this that: 'It is not normal to amend for several periods and several companies and to want to eliminate a trace, once amended, there were no longer imputations between the companies, she [Nombre6] made the modifications, later they made another amendment, that declaration ended up with a cut of one colón, the same lady paid her one colón, for a professional service, they try to leave zero for [Nombre5], they could not delete, what they did was amend the amount. Imputed for us, as a taxpayer I request a service of any kind or purchase of any kind, I acquire, I pay commissions, rents to person x, I paid that service of such amount, the imputation comes to be that this person comes to say, yes it is true, they paid me that amount, or something like that, the information cross-check we call a shadow occurs'"* (pp. 148 and 149). Karla Salas Corrales, Director of the Dirección de Inteligencia, spoke in a similar vein, according to what the trial court recorded: *"She also highlights that when the decision was made to conduct the audits, the information held from the self-assessment declarations of Mrs. [Nombre5] and the companies was as of the fourth of July, but on the tenth of July the amended declarations were filed in the name of these three companies and [Nombre5], regarding what could be verified from these amended declarations, the witness accounts that: 'When the audit begins, two companies were selected for audit, the declarations were available, on July 10 those amendments are filed and the name of [Nombre5] is eliminated and the declarations of [Nombre5] were also corrected, they were corrected, they left them at zero, she no longer had income or expenses and the companies' declarations have their informative declarations corrected. The Dirección de Fiscalización, when it manages to start, must start from the last declaration and by then it was no longer there, the work is carried out on the last declaration, no more reports of Mrs. [Nombre5]. The records are not deleted, we therefore have both declarations, those filed in the corresponding period and then July.' Besides this situation, their attention was also drawn by the fact that the same pattern continued regarding the filing of the documents, in the sense that they were filed simultaneously: 'same common denominator, these amended declarations were filed on the same day and by the same person.'"* (p. 155). It seems obvious that when amendments are due to errors made, they are sporadic. It is practically impossible that one would have been so clumsy as to have made mistakes in all the declarations made over several years in the name of Mrs. [Nombre5], and it is highly suspicious that the need for amendment arose when the illicit scheme was being revealed. Therefore, we can conclude, following the cited specialists, that the amendment of multiple declarations, besides signifying a practically improbable coincidence, is a clear indicator of an attempt to erase traces of the irregular conduct. But to this is added one more element, and that is that the person who identified herself as the defendant's accountant called Mrs. [Nombre5], with murky intentions, as the latter pointed out at trial. This happened after the case against the defendant was reopened. What this supposed accountant intended was for her to get in touch with the accused [Nombre1], which Mrs. [Nombre5] says she did not do at first, although she did later (pp. 170 and 171).

What can be taken from this is the confirmation of the knowledge of [Nombre6], in the first place, and of the defendant, secondly, regarding the procedure that had been carried out; the latter, given the problem she was facing, wanted to communicate with the victim. That interest in communicating was satisfied when the defendant managed to speak by telephone with Mrs. [Nombre5], a call whose recording even received media coverage. As will be seen later, this appellate court considers the recording of said call to be illegal. Therefore, it is not valid to rely on it as evidence. However, the memory retained by Mrs. [Nombre5] was sufficient to definitively confirm the involvement of [Nombre1] in the charged crimes. As was to be expected from someone who had been discovered committing criminal acts, the defendant asked the aggrieved party to recant, to be untruthful before a journalist, so that the entire scheme in which she had participated would not be revealed. The court reproduced the witness's words in these terms, and made the respective comment: *"I received the reporter from a television channel and a week or days later, a journalist from La Nación, while talking to this journalist, they didn't understand how a seamstress knew Mrs. [Nombre1], then the call that was made public came in, at that moment a reporter from La Extra and one from La Nación were there, I answered, my phone was old, you had to answer on speakerphone, my son had given me a bad phone, I put one phone next to the other to record the lady's voice, the rest is public, the continuing process is already known... During the call there were two journalists, named [Nombre4], one with the last name [Nombre18], they heard the call, they were from La Nación and La Extra. The call asked me please, -Mrs. [Nombre1] (she identified herself)- to recant with the journalist, that she would help me with a pension and a house, it was a long call, many things, that I had to recant, this was affecting me, that she would take care of helping me with a pension and insurance, I am paraphrasing, I do not remember the literal words. I recorded that call, the reporter also recorded it, that call was made public, that was not my intention, it was not the intention to record it. My intention was, try to put yourself in my place, a person with no education, no money, no position, my word for the most part was worthless, I had to rely on another person to reopen my case, already archived, my intention was that the day I go to trial and I, with her own voice accepting, not my voice accusing her of such an unpleasant crime, in that process, it is her own voice that accuses her. The socioeconomic and political level, she committed a crime and someone has to make her see it, it is the proof that I was telling the truth. When that call came in I didn't know it was from her. I decide to record it, I cannot say at what moment, it was not planned, I answered it on speakerphone, I put the other phone to record when answering on speakerphone. I am clear that she wanted me to stop the reporter so that the matter would not be made public. I felt upon receiving that call furious, the only word that comes to mind." And she explains that she felt furious because for her, Mrs. [Nombre1] was a lady, a lady in every sense, whom she saw as a model, brave, career-driven, performing valuable work in the world and that "image of honorability crumbled for her"* (pp. 172 and 173). All of the above leads to a conclusion —as the synthesis that must be reached— which is that the defendant, consciously, formed part of an organization that carried out multiple crimes, over several years, with the aim of benefiting three family companies of which she was a legal representative, performing material acts intended to consummate the crimes, and being clear that, through an intermediary, she finalized others. There was, at least, the participation of the accounting assistant [Nombre6], in the development of the operational parts, and with the connivance of her husband who, in his capacity as an accountant, gave a certain formality to the recording of accounting operations; but what is clear, patent, and manifest is that all the criminal actions ended up benefiting, fundamentally, Edificio Adrofer Sociedad Anónima, Consultoría ORS y Asociados Sociedad Anónima, and Inversiones Beyof Sociedad Anónima. This allows us to address the claims that are rejected in this section, since as can be seen, the appellants seek to exclude the defendant's liability based on certain common arguments, which are not acceptable. In the first place, they argue that the court attributes to [Nombre1] having prepared and/or filed the returns. This is not accurate; the court stated in each case that the filing was done directly, or through an intermediary, which is indeed true. The participation of the accounting assistant [Nombre6], which the appellants not only do not deny, but reaffirm as the core of their claims, was an essential part of the criminal enterprise carried out, as already noted. But as was shown in previous lines, the criminal operation acquired meaning based on someone who benefited from it, which was not, at least primarily, [Nombre6]. Thus, when in the second claim, the appellants state that in proven facts 1 and 2 of the two thousand nine period, the court concluded that the accused prepared and filed declaration D 151 number [Identificacion1], in the name of Edificio Adrofer Sociedad Anónima, the first thing that must be clarified is that what the a quo attributed to her was having prepared it, but not necessarily having filed it; the latter was done —says the judgment—, personally or through an intermediary. Precisely, this is where the acknowledgment by [Nombre6] of having participated in the processing of the tax returns of the company in question is relevant, a detail that the challengers peacefully accept. Everything said in previous lines is also relevant, that her participation could not be the product of an error, but part of a duly orchestrated and operationalized criminal plan. It is from this participation that it is confirmed that having included the expense of three million five hundred thousand colones in the return was part of the setup that, time and again, the involved persons carried out. Precisely, the participation of [Nombre6], joined with the fact that, finally, the return served to reduce the taxable amount of the referred company, represented by [Nombre1], shows that the falsehood was one more of the actions whose general knowledge was made evident by the accused through her conversations with [Nombre5]. It is here where the importance of having sought, in the first place, to reconstruct the general panorama of the criminal action and of the defendant's role within it is evidenced, in this court's judgment. The fragmented analysis proposed by the appellants in this ground as in the other twenty-nine analyzed here, is evidently ineffective in reconstructing what really happened. It must be pointed out that, regarding the mentioned declaration, the court incurs an error in stating that it was prepared by the defendant. In reality, the evidence indicates that the comparison elements provided (documents with signatures and handwriting traits of the defendant), are of a different model from those that appear in said document (report 2015-1402-AED, in Investigation File part 14, images 26, 27, and 30). The accusation did not have that inaccuracy, since it stated that *"the accused [Nombre1] and [Nombre6], prepared the Annual Return Summary of Clients, Suppliers, and Specific Expenses form D-151 number [Identificacion1] in the name of the company Edificio ADROFER Sociedad Anónima"* (accusation, images 3 and 4), whereby the Public Prosecutor's Office left open the possibility that the actual preparation had been carried out by [Nombre6], as the appellants suggest. However, the inaccuracy committed has no consequences, since the use of a false document itself, which is attributed to the defendant, is related in the second accredited fact of the year two thousand nine, in which it is correctly stated that the defendant acted personally or through an intermediary, which is true, according to the analysis carried out throughout this considering clause. The appellants state that the referred return does not appear in the documentary evidence. That is not true. In the returns file, at folio 250, one can see the manila envelope containing the return for the two thousand nine period, number [Identificacion1]. The document records, in the space for "contribuyente o representante legal", the name “[Nombre19]” ([Nombre20]) “” ([Nombre21]) and her identification number, as well as a signature, all apparently in ballpoint pen ink. It is pointed out that the supplier detail is not provided, but rather in an annex. Certainly; because that is the format presented by the Dirección de Tributación of the Ministerio de Hacienda for the return. A document called "Declaración Anual Resumen de Clientes, proveedores y gastos específicos" is seen, to which another identified as "Hoja de detalle" is added. However, their relationship is undeniable, not only because they correspond to the same year and the same declaring company, but also because they show matching information. Thus, the return refers to two professional services for a total of three million six hundred thirty-three thousand three hundred thirty-three colones. The detail sheet, for its part, specifies the existence of two beneficiaries: [Nombre15], for one hundred thirty-three thousand three hundred thirty-three colones; and [Nombre5], for three million five hundred thousand colones. In other words: the annual summary return of clients, suppliers, and expenses of Edificio Adrofer Sociedad Anónima for the year two thousand nine perfectly matches the detail sheet in the name of the same company and the same year, which simply specifies who those service providers are and how much was paid to each one. In the third reproach, the challengers claim that in proven facts 3 and 4 of the two thousand nine period, the court concluded that the accused prepared and filed declaration D 151 number [Identificacion2], in the name of Consultoría ORS y Asociados Sociedad Anónima. In this case, that is not true, in the first place, because here the a quo did indeed use the formula from the accusation, which indicates that the preparation of the document was the product of the collaboration obtained by the defendant from the accused [Nombre6]. Thus, the fact that the Tax Administration established, as the appellants correctly state, that Mrs. Vargas prepared and filed the tax returns of the companies represented by [Nombre1], is something that links the latter, following the explanation that has been given in this considering clause. Thus, although it is true that report 2015-1402-AED, in its results 64 and 70 (Investigation file part 14, images 31, 32, and 35), indicates that the signature on the document is of a different model from that of the accused and the individualizing characteristics of her handwriting are not present in the return, this does not lead to disproving her participation in the illicit act. On the other hand, it must again be reiterated that the lack of indication of the suppliers in the D-151 return is a particularity of the document itself, which must be complemented by the detail sheet on which such data is indicated. In the returns file, at folio 296, there is a manila envelope containing inside, among others, the Declaración anual resumen de clientes, proveedores y gastos específicos of Consultoría ORS Sociedad Anónima which records two professional services for a total of three million six hundred thirty-three thousand three hundred thirty-three colones; furthermore, it is duly signed and records as issuer [Nombre1] “[Nombre20]” (sic). The attached detail sheet specifies that such professional services were provided by [Nombre15], for one hundred thirty-three thousand three hundred thirty-three colones and by [Nombre5], for three million five hundred thousand colones. As can be seen, the sum of both items fully coincides with the total of the return. The fourth objection formulates identical arguments regarding proven facts 5 and 6 of the two thousand nine period, with respect to declaration D 151 number [Identificacion19], which warrants reiterating the response given in the previous point. In this case, there is no need to show the challengers the existence of the document, since its existence is not denied here. The same must be said regarding the fifth objection, related to proven fact 7 of the two thousand nine period and declaration D 101 number [Identificacion3], in the name of Edificio Adrofer Sociedad Anónima; regarding the sixth ground, which speaks of proven fact 8 of the two thousand nine period, on declaration D 101 number [Identificacion4], in the name of Consultoría ORS y Asociados Sociedad Anónima; in relation to the seventh claim, concerning proven fact 9 of the two thousand nine period, on declarations D 101 number [Identificacion20] in the name of [Nombre5], D 101 number [Identificacion3] in the name of Edificio Adrofer Sociedad Anónima, and D 101 number [Identificacion4] in the name of Consultoría ORS y Asociados Sociedad Anónima; and regarding the eighth reproach, referring to proven facts 1 and 2 of the two thousand ten period, on declaration D 151 number [Identificacion5], in the name of Edificio Adrofer Sociedad Anónima. Given identical arguments, it is appropriate to reiterate the response already provided regarding them. In this last claim, referring to the year two thousand ten, it must additionally be taken into account that the argument is repeated that the return does not appear in the documentary evidence, but rather a detail of third-party declarations, without the signature of the accused. Here, the clarification made by the Dirección de Inteligencia Tributaria of the Ministerio de Hacienda must be taken into account: *"For the year 2010 [the return] was filed electronically, by means of Declara version 4.0.2, according to information provided by the DTIC (as per its acronyms Dirección de Tecnologías de Información y Comunicación) which has an email address: [...], corresponding to the contact name [Nombre15], telephones 2285-3731. [by virtue of which] An SIIAT printout of said return is attached (certified) number [Identificacion5], filed on November 27, 2010"* (returns file, certification of f. 98). It is not appropriate to demand that a physical return be presented that never existed, because the one made was done by computer means. Therefore, a certification of the return was provided (returns file, certification of fs. 220 to 222). Certainly, the provider detail is seen on the second folio of the content of the certification, the exact correspondence between the two being visible, since the first speaks of two operations for four million colones and one million colones; while in the detail it is shown that the one million corresponds to [Nombre5] and the four million to Inversiones Regiofe Sociedad Anónima. As the appellants make clear, in this case the return was filed by [Nombre6] through the user account of her husband [Nombre15], which does not change anything of what has been considered up to now. The basis of the ninth objection is similar to that of the eighth, only that it refers to proven facts 3 and 4 of the two thousand ten period, regarding declaration D 151 number CED6, in the name of Consultoría ORS Sociedad Anónima. It is worth reiterating, then, the inaccuracy of the appeal, in pointing out that the preparation and filing of the document was attributed to the accused, when the facts refer to the co-participation in the preparation by the accused and [Nombre6] and the filing of the document by the latter. Again, it is the intervention of this person, through the "user account" of her husband, which confirms, rather than disproves, the involvement of [Nombre1] in the crime, due to the connection that existed between the two, as has been analyzed since the beginning of this considering clause. Regarding the issue of the provider detail, in the sense that they are in an annex, it must again be indicated that in the year two thousand ten, this return was filed electronically, by means of Declara version 4.0.2, according to information provided by the Dirección de Tecnologías de Información y comunicación (returns file, certification of fs. 98 vto. and 99), for which a certification of the digital record was provided. In this it is clearly established, on its first folio, that the company in question carried out two payment operations for services, one for four million seven hundred fifty thousand colones and another for four million. Both perfectly fit with the following sheet of the certification, which indicates that in that year, to that company and regarding that return, services were provided by [Nombre5], for four million and Inversiones Beyof Sociedad Anónima, for four million seven hundred fifty thousand colones. Once again, the argument that attributes to the trial court having affirmed that the preparation and filing of the returns corresponded to the accused is reiterated, in the tenth reproach, referring to proven facts 5 and 6 of the two thousand ten period, on declaration D 151 number [Identificacion21], in the name of [Nombre5]. It is also reiterated therein that the filing of the documents was the exclusive responsibility of [Nombre6], through the "user account" of her husband. It is worth answering, then, regarding that, that what is stated that the court said does not coincide with the letter of what is indicated in the facts, as can be easily verified, and that the participation of [Nombre6] does not exclude, but rather confirms, the involvement of the accused, as has been amply and repeatedly indicated. The eleventh ground, referring to proven fact 7 of the two thousand ten period, related to the preparation of declaration D 101 number [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima, must receive slightly different treatment. This is because it was even signed by the defendant, as was established by expert opinion in report DCF 2015-01402-AED of the Sección de Análisis de Escritura y Documentos Dudosos of the Departamento de Ciencias Forenses, in its result twenty-one (Investigation File, part 14, images 10 and 11). This, without prejudice to reiterating that the participation of [Nombre6] was carried out in collusion with the defendant. Something similar happens with the twelfth ground, on proven fact 8 of the two thousand ten period, referring to declaration D 101 number [Identificacion7], in the name of Consultores ORS y Asociados Sociedad Anónima, since there is also expert evidence there establishing that the visible signature on the document is that of the accused, as indicated in report DCF 2015-01402-AED of the Sección de Análisis de Escritura y Documentos Dudosos of the Departamento de Ciencias Forenses, in its result 27 (images 13 and 14), although certainly, as the appellants indicate, the manuscripts and numbers were not related to her handwriting traits (image 17). In the thirteenth ground, referring to proven fact 9 of the two thousand ten period, it is said that the court concluded that the accused filed declarations D 101 number [Identificacion8], in the name of Inversiones Beyof Sociedad Anónima; [Identificacion7], in the name of Consultoría ORS y Asociados Sociedad Anónima; [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima and 101225706772, in the name of [Nombre5]. However, that is not true, since what the court indicated is that she did it personally or through an intermediary. In any case, it is worth noting in advance that, in considering clause XII of this judgment, particular treatment will be given to declaration [Identificacion8], for the reasons that will be stated there. Equally, the court is attributed, in the fourteenth ground, related to proven fact 1 of the two thousand eleven period, with having concluded that the accused prepared declaration D 101 number [Identificacion9], in the name of Inversiones Beyof Sociedad Anónima, when that is not true, since the judging body pointed to the existence of a plan designed by [Nombre1] and [Nombre6] to defraud the tax administration and attributed the preparation of the document to them, it could be either of the two, as the plan was common. Certainly, the return was made through the [...] system, by [Nombre6], which implicates the person here tried by virtue of the plan amply explained. Identical considerations to those set forth regarding the previous ground are applicable to the fifteenth ground, referring to proven fact 2 of the two thousand eleven period, on declaration D 101 number [Identificacion22], in the name of [Nombre5]; to the sixteenth ground, related to proven fact 3 of the two thousand eleven period, concerning declarations D 101 number [Identificacion9], in the name of Inversiones Beyof Sociedad Anónima; [Identificacion22], in the name of [Nombre5]; [Identificacion10], in the name of Edifico Adrofer Sociedad Anónima and [Identificacion11], in the name of Consultoría ORS y Asociados Sociedad Anónima. It is also worth noting in advance that in considering clause XII, for the reasons that will be explained there, particular treatment will be given to declarations [Identificacion10] and [Identificacion11]. In the seventeenth ground, related to proven fact 4 of the two thousand eleven period, it is said that the court concluded that the accused prepared declaration D 151 number [Identificacion12], in the name of Inversiones Beyof Sociedad Anónima. Certainly, it is so indicated in the demonstrated fact, when in reality it was not accredited that she did it by her own hand, as is implied. However, the error was corrected in the reasoning, in which it was made clear that, as in all the development of the criminal activity, the accused acted in collusion with [Nombre6] (judgment, p. 192). This collusion was accredited, once again, from the fact referred to by the appellants that the return was made by [Nombre6] through the [...] system. It is said that the return does not appear in the documentary evidence, but rather a detail of third-party declarations, without the signature of the accused, which is due, precisely, to the fact that it was filed in digital form. Regarding the eighteenth ground, related to proven fact 5 of the two thousand eleven period, concerning declaration D 151 number [Identificacion23], in the name of [Nombre5], the statement that the court attributed the preparation of the document to the defendant must again be qualified as inaccurate, when it referred to an action concerted with that person to whom the accused attribute all the responsibility for the action.

The same response must be given to the **nineteenth ground**, concerning proven fact 6 of the two thousand eleven period, related to the amended return (declaración rectificativa) D 151 number [Identificacion24], in the name of [Nombre5]; to the **twenty-first ground**, regarding proven fact 1 of the two thousand twelve period, concerning the D 101 return number [Identificacion13], in the name of Inversiones Beyof Sociedad Anónima; to the **twenty-second ground**, concerning proven fact 2 of the two thousand twelve period, linked to the D 101 return number [Identificacion14], in the name of Inversiones Beyof Sociedad Anónima; to the **twenty-third ground**, regarding proven fact 3 of the two thousand twelve period, related to the amended return D 101 number [Identificacion25], in the name of [Nombre5]; to the **twenty-fourth ground**, concerning proven fact 4 of the two thousand twelve period, regarding the D 151 return number [Identificacion15], in the name of Inversiones Beyof Sociedad Anónima; to the **twenty-fifth ground**, which questions proven fact 5 of the two thousand twelve period, linked to the D 151 return number [Identificacion26], in the name of [Nombre5]; to the **twenty-sixth ground**, related to proven fact 6 of the two thousand twelve period, concerning the amended return D 151 number [Identificacion27], in the name of [Nombre5]; to the **twenty-seventh ground**, concerning proven fact 1 of the two thousand thirteen period and the D 101 return number [Identificacion16], in the name of Inversiones Beyof Sociedad Anónima; to the **twenty-eighth ground**, concerning proven fact 2 of the two thousand thirteen period, regarding the D 101 return number [Identificacion28], in the name of [Nombre5]; to the **twenty-ninth ground**, concerning proven fact 3 of the two thousand thirteen period and the D 151 return number [Identificacion17], in the name of Inversiones Beyof Sociedad Anónima; to the **thirtieth ground**, regarding proven fact 4 of the two thousand thirteen period, concerning the D 151 return number [Identificacion18], in the name of Inversiones Beyof Sociedad Anónima; and to the **thirty-first ground**, with respect to proven fact 5 of the two thousand thirteen period, pertaining to the D 151 return number [Identificacion29], in the name of [Nombre5]. Finally, although in the **thirty-second ground**, regarding proven fact 6 of the two thousand thirteen period, concerning the amended return D 151 number [Identificacion30], in the name of [Nombre5], the error was also made in the judgment of attributing the preparation to the accused, without having a basis for doing so, the truth is that the reasoning made it clear that it was a joint action with [Nombre6] (judgment, p. 197). But, in addition, it was made clear, in both parts of the ruling, that the latter made the filing. For all the foregoing, the rejection of the referenced grounds is required.

**VI.-** As a **twentieth ground**, contradictory reasoning is alleged. In proven fact 7 of the two thousand eleven period, the trial court concluded that the accused prepared the amended returns D 151 numbers [Identificacion31], [Identificacion32], [Identificacion33], and [Identificacion34], in the name of Inversiones Beyof Sociedad Anónima. However, it acquitted her for the crime of use of a false document, because within said returns there is no element that is not true, because the expenses reported in the name of [Nombre5] are eliminated. The appellants consider it nonsensical that their client was convicted for the amended tax returns (juridically nonexistent) and acquitted for the amended returns that annulled the first ones. Article 130 of the Código de Normas y Procedimientos Tributarios contemplates the amended return, which can cover any item, without limitation. The appellants refer to Article 20 of resolution DGT-R-026-2011 of September 30, 2011, from the Dirección General de Tributación. According to the testimonial evidence, when the taxpayer makes a rectification, the initial return loses all legal effects, as it is replaced by the new one. The accused is charged with two uses of a false document from the two thousand eleven period, concerning nonexistent returns. An impossible crime is charged "because the object of the charged crime no longer exists." Article 92 of the Código de Normas y Procedimientos Tributarios contemplates the amended return as a legal excuse that absolves. **No ha lugar.** It is worth clarifying, here as well, the imprecision of the appellants when they indicate that the trial court attributes to the accused, in proven fact 7 of the two thousand eleven period, the preparation of the amended returns D 151 numbers [Identificacion31], [Identificacion32], [Identificacion33], and [Identificacion34], in the name of Inversiones Beyof Sociedad Anónima. The wording of the demonstrated fact attributes the preparation to both the accused and her collaborator [Nombre6]. However, the particularity of this claim is that this does not constitute the core of the complaint, because the accused was not punished for that preparation. Insofar as they were amended returns, which corrected previous falsehoods, an acquittal was issued given that they no longer contained false information. Therefore, the challengers rather question the conviction for the rectified returns, because, juridically, they no longer exist. The first pillar of the appellants' argumentation is that Article 130 of the Código de Normas y Procedimientos Tributarios contemplates the amended return. This is certainly so. The referenced numeral states: "*Declaraciones rectificativas* / The sworn declarations or statements made by taxpayers are presumed to be a faithful reflection of the truth and render the declarant responsible for the taxes resulting from them, as well as for the accuracy of the other data contained in such declarations. / Likewise, taxpayers may rectify their tax returns, taking into account the following aspects: / **a)** When taxpayers rectify their tax returns, they must file in the places enabled for this purpose, without prejudice to the provisions of subparagraph e) of this article, a new return in the means defined by the Tax Administration, and must pay a greater tax when applicable, together with its accessories, such as interest fixed for late payment. / **b)** Any return that the taxpayer files after the initial one will be considered a rectification of the initial one or of the last amended return, as the case may be. / **c)** The rectification of the tax return may cover any item that affects the taxable base of the tax or the forms of extinction of the corresponding tax obligation. / **d)** The rectification of the returns referred to in the preceding paragraphs does not prevent the subsequent exercise of the powers of the Tax Administration to audit or verify. / **e)** Filing amended returns will not be admissible after notification of the initiation of a control procedure aimed at generating a definitive assessment. / However, the taxpayer may, starting from that moment and until the completion of the procedure, submit a rectification petition subject to approval by the acting bodies of the Tax Administration. / The consequent approval or denial will be incorporated directly into the regularization proposal formulated to the audited taxpayer in definitive assessment procedures and in prior assessment procedures; the approval or denial will be incorporated into the administrative act of ex officio assessment. / In control processes aimed at generating a prior assessment, the taxpayer may make a single rectification within the three business days following the notification of the act of commencement of the proceeding. / Rectifications filed after the three business days from the commencement of the proceeding will have the character of a petition, and therefore their approval or denial will be incorporated into the administrative act of ex officio assessment" (the bold belongs to the original text). It was decided to cite the article in full, to show that it in no way excludes the possibility of punishing the falsehood committed in the rectified return. Article 20 of resolution DGT-R-026-2011 of September 30, 2011, from the Dirección General de Tributación is also cited, which states: "*Rectificación de declaraciones informativas* / Given the importance for the Tax Administration of having accurate and correct data for the efficient management of taxes, the informative return that is prepared and filed through the program [...], may be corrected by the taxpayer by filing a new return, in order to correct errors made in the **body of the return**, whose effect implies an increase or decrease in the number of reported records or corrections in the amounts or codes. / In these cases, any return that the taxpayer files after the initial one will be considered a rectification of the initial one or of the last rectified return, as the case may be, completely replacing the previous one. / On the other hand, corrections to these returns, in which the taxpayer states having made informational errors **in the heading of the informative return**, be these, in the period (box 2), identification number (box 4), or name or corporate name (box 6), must formulate the correction in writing, indicating at least the following: / a) i. Name of the taxpayer / ii. Number of the return to be corrected - stated on the acknowledgment of receipt of filing of the return on the Tax Administration's website -. / iii. The informational error to be corrected / iv. Place for notifications / v. Signature of the taxpayer or legal representative / This writing must be filed in the Compliance Control Area of the Tax Administration to which the respective obligor is assigned, and in the case of Large Taxpayers before the assigned manager. / When corresponding to amended informative returns prepared and filed online through the electronic filing web portal for returns - forms D-151 and D-152 as indicated in Article 12 of this resolution -, the previous one must be completely replaced, obligatorily indicating the electronic return number being corrected, a number that will be stated on the acknowledgment of receipt of filing of the return on the Tax Administration's website" (bold from the original). Again, it must be said that nothing indicated in the article allows agreement with the appellants when they deduce the existence of a ground for excluding any of the elements of the crime. Recourse is then made to Article 92 of the same code, from which the appellants derive the qualification of the amended return as a legal excuse that absolves. The numeral states: "*Fraude a la Hacienda Pública* / Whoever, by action or omission, defrauds the Public Treasury with the purpose of obtaining, for themselves or for a third party, a patrimonial benefit, evading the payment of taxes, amounts withheld or that should have been withheld, or payments on account of allowances in kind or unduly obtaining refunds or enjoying tax benefits in the same manner, provided that the amount of the defrauded quota, the unremitted amount of withholdings or payments on account, or the refunds or tax benefits unduly obtained or enjoyed exceeds five hundred base salaries, shall be punished with a prison sentence of five to ten years. / For the purposes of the provisions of the preceding paragraph, it must be understood that: / **a)** The amount of five hundred base salaries shall be considered an objective condition of punishability. / **b)** The amount shall not include interest, fines, or punitive surcharges. / **c)** To determine the aforementioned amount, if it concerns periodic taxes, withholdings, payments on account, or refunds, or those requiring periodic declaration, the amount defrauded in each tax period or declaration period shall be considered, and if these are less than twelve months, the amount defrauded shall refer to the calendar year. In other cases, the amount shall be understood as referring to each of the different concepts for which a taxable event may be liquidated. / The fact that the taxpayer repairs their non-compliance, without a requirement or action from the Tax Administration to obtain the repair, shall be considered a legal excuse that absolves. / For the purposes of the preceding paragraph, an action by the Administration shall be understood as any action carried out with notification to the taxpayer, aimed at verifying compliance with tax obligations. / The Procuraduría General de la República shall be constituted as a civil plaintiff in the exercise of the civil action for damages, in accordance with the provisions of the Código Procesal Penal; for this, it must have the active technical participation within the criminal process of the Dirección General de Tributación, which shall act through the Dirección General or those to whom it delegates the function. / For the purposes of complying with the provisions of this article, all acts of the process must be notified to the Dirección General de Tributación" (the bold is from the original). It suffices to read the title of the legal provision to realize that it refers to a crime totally unrelated to that for which the defendant was convicted numerous times; here it speaks of fraud against the public treasury. Without further precision, it is indicated that the testimonial evidence states that, when the taxpayer makes a rectification, the initial return loses all legal effects, as it is replaced by the new one and becomes nonexistent. Furthermore, it speaks of an impossible crime. It is probable that the appellants are referring to the testimony of attorney [Nombre7], a doctor in tax law, who indicates having reviewed the matter of the accused's companies in the administrative venue and is processing a contentious process in her favor. It is presumed that it is he to whom the challengers refer, since he is the person who cited numeral 130 of the Código de Normas y Procedimientos Tributarios in his testimony, and stated: "Law 7900 [which reformed the referenced code] establishes a system by which any rectification is possible before the appeal for reconsideration, as of 2012, before the determinative procedure rectification is possible and it is a total substitution for the new one, the first disappears from the legal world and is replaced by the rectification. It was developed taking as a point of reference, they were the amended returns, upon losing real existence, these were not used in the assessment procedure" (judgment, p. 83). The trial court contested the relevance of the statement, pointing out that it was only applicable to inaccurate self-assessment returns, a qualifier that those prepared in this case did not deserve. In the judgment of this court of appeals, the question is different. It is possible that the rectification has, for tax law, the effects that the witness [Nombre7] indicated; there is no reason to doubt this, even considering that the professional is the lawyer for the companies through which the punished crimes were committed. But the effects and implications relating to tax law are not what is of interest here. The matter in question is one of criminal law: does the rectification of a self-assessment return —or of any other nature— have the virtue of eliminating or nullifying the falsehood reflected in the original document or the use that was made of it? The answer is negative. No legal norm exists that attributes that efficacy to the subsequent return, and it would be wrong to seek it in a law that was not designed to regulate criminal conduct corresponding to falsehood of documents, as is the Código de Normas y Procedimientos Tributarios. Therefore, the claim has no place.

**VII.-** As a **thirty-third ground**, erroneous non-application of Articles 22 and 75 of the Código Penal is alleged, and it is added that, if the proven facts are upheld, one should be in the presence of an ideal concurrence and not a material concurrence. The judgment identifies the object of the charged conduct as a supposed unlawful patrimonial benefit and damage to the public treasury. It is an action with a single purpose, which is to obtain an unlawful economic benefit, through deception of the public treasury. There is a single purpose, which is to defraud the treasury, so the difference in fiscal periods is irrelevant; the same conduct remained unchanged over time, without interruptions, from the year two thousand nine to two thousand thirteen. It cites the ruling when it states: "However, what has been indicated (sic) up to here reveals that, as material actions, it is not possible to distinguish between the use of a false document and the deception aimed at obtaining a patrimonial benefit, in this case there is a single action from the natural or physical point of view…" (judgment, p. 132). In the judgment of the appellants, this makes the incorrect application of the rules on concurrence understandable. If the trial court considered that it was a single action, it should have applied ideal concurrence. They cite in favor of their thesis Voto 721-2001, from the Sala Tercera of the Corte Suprema de Justicia. In light of that precedent, they argue that, in the case at hand, more than one crime per fiscal period could not be considered, insofar as the detriment to the treasury and the unlawful benefit would be consummated at the moment of the final income tax return for each period. Thus, as a main thesis, they request a declaration that the thirty-two punished crimes maintained a unity of action over time, affecting fiscal assets and concurring ideally. In the subsidiary, they request punishment for one use of a false document for each fiscal period "affected in ideal concurrence"; with a material concurrence among the five ideal concurrences. They argue that it is not possible to separate the conducts from the legally protected interest affected, in such a way that "if the purpose of using the false document was precisely to affect fiscal assets, such conduct could only be achieved once a year," since the tax is paid annually. **Without merit.** Regarding the issue of unity of action and concurrence of crimes, the Sala Tercera of the Corte Suprema de Justicia stated, in a precedent that has been replicated time and again, and which continues to constitute the jurisprudential line of that body on the matter, the following: "From Articles 21, 22, 23, 75, 76, and 77 of the Código Penal, it is inferred that the fundamental criterion for resolving the problem of this 'concurrence of crimes' lies in the definition of what is 'a single action or omission' or 'a single conduct' (cfr. Articles 21 and 23, hence the number of 'results' has nothing to do with the number of conducts and crimes). In this sense, it has been affirmed that: «The common problem in all the cited cases is determining when there is one or several actions. At the outset, the identification between action and bodily movement and the identification between action and result must be excluded. A single action, in the legal sense, can contain several bodily movements (for example, rape by intimidation, robbery with fracture) or give rise to several results (detonating a bomb causing the death of several people). Therefore, other factors contribute to establishing the concept of unity of action.

The first is the final factor, that is, the will that governs and gives meaning to a plurality of isolated physical acts (in murder, the will to kill unifies and gives meaning to a series of acts, such as buying and loading the pistol, stalking the victim, aiming, or shooting; or, in theft, the will to appropriate the thing unifies and gives meaning to the distinct acts of searching the pockets of a coat). The second factor is the normative one, that is, the structure of the criminal offense (tipo delictivo) in each particular case. Thus, even if the final factor governing a causal process is the same (killing someone), some of the particular acts carried out may, in isolation, have relevance for distinct criminal offenses (tipo delictivo) (as, for example, the illicit possession of firearms for the crime of illicit possession of firearms). And, conversely, isolated acts, each governed by a distinct final factor, may have criminal relevance only when they occur jointly (the falsification of private documents is only criminal if carried out with the intent to harm or harming a third party) or have a different criminal relevance (for example, robbery with homicide). When a single action, determined with the criteria indicated here, fulfills a single criminal offense (tipo delictivo), we have the normal case. When a single action or several actions fulfill several criminal offenses (tipo delictivo), concurrence problems arise” (MUÑOZ CONDE, Francisco: Teoría general del delito, Valencia, Tirant lo blanch (sic), 1991, p. 194). Our doctrine indicates that the unity of action is a legal concept, that just as it is erroneous to try to define the unity of action without considering the norm, so too it would be mistaken to try to define the unity of action without considering the fact, without giving it the subordinate place it deserves as the content of the norm: "...it is not the natural unity of action that determines when there is an action in the legal sense; rather, it can happen that an action in the natural sense legally constitutes a plurality of actions or that a plurality of actions in the natural sense legally constitutes a single action. The separation between unity of action and plurality of actions is only possible through an interpretation of the meaning of the criminal offense (tipo penal) fulfilled" ([Nombre11]: El Concurso..., pp. 19 to 20). The adoption of the final factor (a unitary plan that gives meaning to a plurality of voluntary movements as a single conduct) and the normative factor (which converts the conduct into a unit of wrongfulness for the purposes of the prohibition) as criteria to elucidate when there is one and when there are several conducts (whether acts or omissions) is widely accepted by current doctrine (thus, ZAFFARONI, Op. cit., pp. 619 to 620; VELASQUEZ, Op. cit., pp. 584 to 588; [Nombre22] , Santiago: Derecho Penal Parte General, Barcelona, Promociones y Publicaciones Universitarias S.A., 1990, pp. 720 to 724; [Nombre23], Enrique: Principios..., p. 280) and, to the extent that it rationally grounds the application of substantive law based on the axiom that the essence of the crime is the harm to a protected legal interest (bien jurídico tutelado), is adopted by the undersigned (Sala III, v. 943-98, of 16:16 hrs. on September 29, 1998). In line with what was formulated in that resolution, the criterion of the courts of our country is practically unanimous that, for the purposes of establishing the existence of a unity of action, it is as important to determine the purpose that motivated the author's conduct as the implications deriving from the structure of the criminal offense (tipo penal) involved. In the opinion of this chamber, the appellants commit an error by ignoring these considerations in their argument. In the first place, the analysis of the final factor is mistaken. The purpose, for these purposes, cannot be alien to the crime punished; in this case, the use of a false document. Once the existence of the crime is proven, it must be clear that the end of the accused was to affect public faith by using false documents. The appellants, however, refer to other purposes related to a crime of fraud against the public treasury that was not even charged and to obtaining a patrimonial benefit that is not related to the core of the reproach made against the defendant. For these purposes, the purpose of defrauding the tax authority is as irrelevant as the objective the accused intended to satisfy with the money obtained; in both cases, these are legally inconsequential purposes, due to their merely subjective nature. They are personal objectives alien to the analysis of the action from a legal point of view, the only one that can be of interest to establish how the crimes committed concur. The second error is in setting aside the normative factor. Article 372 of the Penal Code provides that "Anyone who makes use of a false or adulterated document shall be punished with one to six years of imprisonment." This legal provision describes a conduct that is consummated upon making use of the document; when this occurs, the action concludes, and cannot constitute a unity with a subsequent act. The mere purpose of the agent does not have the virtue of giving unity to a series of materially unconnected acts. The vote of the Third Chamber of the Supreme Court of Justice cited by the appellants does not concern the matter under examination, but rather refers to the indicators that allow distinguishing a continued offense (delito continuado) from a material concurrence of criminal conducts. However, a fragment of it touches on a matter of mere legal rationality, and therefore reinforces what this court holds here. The Chamber states: "What is the criterion that allows differentiating between a continued offense (delito continuado) and a material concurrence of crimes (concurso material de delitos)? This Chamber considers that it must consist in that the purpose pursued by the author, in relation to the legal interests (bienes jurídicos) being affected by his actions, is incompatible with the nature of the material concurrence. Otherwise, one would reach the absurdity that the habitual author of robberies, for example, would have the opportunity to unite with his 'purpose' (the decided habituality in robbery) acts having no other relationship among themselves, which warrant the penalty for real or material concurrence of crimes and not that of a single continued offense: it would be absurd because it would unjustly favor the one who shows the greatest factual contempt for patrimonial legal interests, given his habituality or recidivism, since the figure of the continued offense is a sui generis exception to the rules of material concurrence, so much so that the law provides that it is only applicable if patrimonial legal interests are affected. Hence, the doctrine indicates that the application of the continued offense is subject to subjective and objective criteria. In this sense, [Nombre8] points out that: 'Initially, one starts from a subjective criterion: the unity of design of the author (the bank teller who, decided to gather a certain amount of money, procures it by taking smaller sums from the cash register on different occasions). But, if we were content with that criterion to determine dependence, we would grant the author the unjust opportunity to unite with his design the most disparate acts, deserving the penalty for concurrence, and not that of a single crime, for which reason we must complete it with objective criteria [...]' [Derecho Penal Parte General, Editorial Astrea, Buenos Aires, 1988, pp. 241 to 242]" (Sala III, v. 721-01, of 9:20 hrs. on July 20, 2001). Reiterating that the central topic addressed by the Chamber in that resolution is very different from the one that occupies us here, it is nonetheless worth noting, since the appellants bring it up, to reaffirm the following: it is not prudent to make the determination of whether one incurred in one or several actions depend on the mere will of the author. The matter is of a legal nature and the content of the infringed norm (normative factor) cannot be ignored. The appellants make a citation from the ruling of the a quo, which seems to this chamber taken out of context. To understand what the trial court expressed, it is necessary to expand the transcript. It stated: "The actions concur materially, in total false data were inserted into thirty-two documents, which determines their falsity, of which the defendant [Nombre1] had full knowledge, specifically of the false content, for it corresponded to an artful machination to distort reality in order to benefit the companies and harm the Public Treasury, that is, deceptive acts motivated by the spirit of unjust profit were executed, with which the tax supervision bodies were induced into error and a harm was caused to the Public Treasury, because finally, although a tax determination or assessment has not been carried out, the truth is that less tax was declared, which arises as a logical and inescapable consequence, since the actions led to a decrease in gross income and the consequent decrease in the tax burden. This harm caused is in turn a direct consequence of the error into which the recipient of the operations was induced, that is, the institution legally responsible for the control, verification, and supervision of tax obligations, by making it believe that payments for professional services had been made to Ms. [Nombre5]. It is true that the crime of 'Fraud against the Public Treasury', provided for in article 92 of the Code of Tax Norms and Procedures, which is a Tax Defraudation, a criminal offense (tipo penal) of a special nature, was not charged, which was ruled out in the preparatory investigation conducted by the Public Prosecutor's Office, because this criminal offense (tipo penal) establishes among its objective elements that the amount of the defrauded quota must exceed five hundred base salaries. However, what has been indicated so far reveals that, as material actions, it is not possible to distinguish between the use of a false document and the deception aimed at obtaining a patrimonial benefit, in this case there is a single action from the natural or physical point of view" (judgment, pp. 131 and 132, our emphasis). At least two conclusions can be drawn from what the court said in that fragment: i) that it is clear that thirty-two distinct criminal actions occurred that constitute uses of a false document; ii) that, in its opinion, between the use of a false document (each one of them) and the deception of the tax authority with patrimonial consequences, a single action is constituted from the natural or physical point of view. It almost goes without saying, because it is widely accepted, that doctrine has evolved to detach itself from merely natural or physical considerations when establishing the unity of action. Moreover, even if one were to assume that the trial court appreciates an ideal concurrence between conducts—which, in this chamber's opinion, is not the case—it would be, at most, between each falsehood and each verified fraud against the public treasury, a position absurd in any case, considering that, as already stated, the defendant was not convicted of any fraud. The trial court was far from giving rise to the appellants' interpretation that the interest in defrauding that the defendant maintained during the five years examined constitutes a unity and therefore they concur ideally, or that the falsehoods committed each year should be considered unitarily. Nor is it the harm caused to the tax authority at the end of each income period that determines the term of each action, as is suggested; the criminal offense (tipo penal) applied to the defendant punishes the use of the document, regardless of when the harm materializes, upon the completion of the entire criminal elaboration. If in the process several documents were falsified to achieve the unlawful objective, the law provides that each conduct must be sanctioned independently. For the foregoing reasons, the reproach is denied.

**VIII.-** As a **thirty-fourth claim**, the illegitimate evidentiary inclusion of a telephone recording is alleged. The appellants argue that the inclusion of the recording made by Ms. [Nombre5] violated the rights to privacy, freedom, secrecy of communications, and legality regarding their client, since the provisions of the Law on Registration, Seizure and Examination of Private Documents and Intervention of Communications number 7425 were not complied with. Ms. [Nombre5] did not ask the accused for authorization to record the conversation, which invalidates the evidence. The Public Prosecutor's Office introduced the evidence, alleging that the defendant had coerced Ms. [Nombre5], but it was demonstrated that no crime was committed through said recording. There is a contradiction in the court, for stating that the recording occurred due to the "presumed commission of a crime," when the accused was acquitted of the crime of coercion. Article 29 of Law 7425 only permits recording in the face of the commission of a crime, not its presumed commission. The exception in the norm refers to crimes that are committed in the course of the communication and that are regulated by Law 7425, that is, that permit intervention of communications. In the **first ground** of her appeal, the defendant [Nombre1] also claims lack of reasoning of the conviction judgment, in relation to the recording of the telephone call. She relies on articles 142 and 363 subsection b) of the Code of Criminal Procedure; 39 of the Political Constitution; 8 of the American Convention on Human Rights and jurisprudence of the Inter-American Court of Human Rights. She states that, during the trial, the defense objected to the recording of the call made on July third, two thousand fourteen, which in their opinion was not authorized by the Law on Registration, Seizure and Examination of Private Documents and Intervention of Communications (number 7425). On the contrary, the recording of a telephone call is prohibited by article 198 of the Penal Code. A private conversation cannot be recorded covertly, as [Nombre5] did. Since the recording of the call was illegal, it could not be used as evidence. Article 24 of the Political Constitution establishes the principle of inviolability of private communications, which has as its only exception what is provided in article 29 of Law 7425. That exception occurs when a crime is being committed. The appellant considers that what determines the legality of the recording is not the a posteriori analysis of its content, but whether before it there was legitimacy to record, due to the commission of a crime. Thus, she considers that the judgment incurs in a lack of reasoning when resolving on the legality of the recording made by [Nombre5]. To justify its decision, the court invokes the principle of freedom of evidence, when this presupposes that the evidence is legal, which does not occur with a recording that contravenes article 198 of the Penal Code and is not within the exception of article 29 of the Law on Registration, Seizure and Examination of Private Documents and Intervention of Communications. Article 28 of the Political Constitution is also invoked, an indeterminate norm that does not justify the recording of a telephone conversation and that has no relation to the authorization of conversations without consent. The constitutional article related to oral communications is 29, which establishes their inviolability as a principle, except for a legal exception, such as that contemplated in article 29 of Law 7425. The judgment says that Ms. [Nombre5] had previously received insulting calls. But when she decided to record, she knew she was speaking with the accused and not with people who called to insult, and she did not justify the recording by virtue of the insulting calls. The judgment says that the accused asked Mrs. [Nombre5] that she had to retract what she had told the journalist [Nombre24]. However, that was not the reason why Ms. [Nombre5] decided to record the conversation; before the recording, she had not been told that she had to retract, so the justification was not prior to the recording; additionally, such a request does not imply the commission of a crime. It is argued that there was a complaint filed before the prosecutor's office and that the case had been reopened, but that did not authorize, in accordance with article 29 of the Law on Registration, Seizure and Examination of Private Documents and Intervention of Communications, the recording of the conversation. The court maintains that, because of what was said in the conversation, the accused was charged with the crime of coercion. This incurs in the error of making the legality of the recording depend on the decision of the Public Prosecutor's Office to charge. Furthermore, what determines the legality of the recording is that before it there was legitimacy to record, not the result of an a posteriori analysis. Likewise, it is overlooked that, for that crime, the defendant was acquitted. Faced with an acquittal based on doubt, making an interpretation favorable to the accused, the coercion could not be considered to justify the recording. From the statement of [Nombre5], it cannot be deduced that, before the call, she had received any type of coercion. Based on the first call that the accused held with Mrs. [Nombre5], the recording of the second call could not be justified. It must be taken into account that the accused denied, during the trial, having performed a willful act, and the court deduced that intent from the recording. As the a quo itself recognized, the recording of the communication played an essential role in the issuance of the conviction. Therefore, she requests that the ground be granted and the judgment be annulled in its entirety, including what refers to the civil action and costs; that, for procedural economy, the recording of July third, two thousand fourteen be annulled and the acquittal and the dismissal of the civil action for damages be ordered; likewise, that the State be ordered to pay costs; subsidiarily, that a retrial be ordered. **Due to their thematic unity, the grounds referred to in this considering clause will be heard jointly, and the same are granted, with the consequences that will be stated.** As the appellants rightly point out, article 24 of the Political Constitution of the Republic of Costa Rica states: “The right to privacy, to freedom, and to the secrecy of communications is guaranteed. Private documents and written, oral, or any other type of communications of the inhabitants of the Republic are inviolable. However, the law, whose approval and reform shall require the votes of two-thirds of the Deputies of the Legislative Assembly, shall determine in which cases the Courts of Justice may order the seizure, registration, or examination of private documents, when it is absolutely indispensable to clarify matters submitted to their cognizance. / Equally, the law shall determine in which cases the Courts of Justice may order the intervention of any type of communication and shall indicate the crimes in whose investigation the use of this exceptional power may be authorized and for how long. Likewise, it shall indicate the responsibilities and sanctions incurred by officials who illegally apply this exception. Judicial resolutions shielded by this norm must be reasoned and may be executed immediately. Their application and control shall be a non-delegable responsibility of the judicial authority. / The law shall establish the cases in which competent officials of the Ministry of Finance and the Comptroller General of the Republic may review accounting books and their annexes for tax purposes and to supervise the correct use of public funds. / A special law, approved by two-thirds of the total Deputies, shall determine which other organs of the Public Administration may review the documents that said law indicates in relation to the fulfillment of their regulatory and oversight competencies to achieve public ends. Likewise, it shall indicate in which cases said review proceeds. / Correspondence that is stolen and information obtained as a result of the illegal intervention of any communication shall not produce legal effects.” For its part, article 29 of the Law on Registration, Seizure and Examination of Private Documents and Intervention of Communications, number 7425 of August ninth, nineteen hundred ninety-four, states: “There shall be no illegitimate intrusion when the holder of the right grants their express consent. If there are several holders, the express consent of all must be obtained. This consent shall be revocable at any time. / When the person who participates in an oral, written, or other type of communication, through which a crime defined by law is committed, records or keeps it, this may be presented by the offended person, before the judicial or police authorities, for the corresponding investigation. / If the communications indicated in the preceding paragraph have served the jurisdictional authorities to initiate a criminal proceeding, the recordings of such communications or the texts that transcribe them may be presented as evidence before the judge, in the corresponding trial.” From the content of both legal provisions, it must be concluded, for the purposes that interest here, that the recording of a conversation is only legitimate when a crime is being committed through it, in which case the offended person may present it before the authorities. It should be clarified that it can be any crime and not necessarily one of those for which the intervention of communications is permitted in Law 7425, as the defense counsel appellants suggest (see in this sense, from Sala III, v. 48-01, of 11:00 hrs. on January 12, 2001). The fact is that, if one is not in the scenario of the existence of a crime, the recording of the conversation has no legal protection and, consequently, could not be used in a criminal proceeding, by virtue of the limitation imposed by articles 181 and 182 of the Code of Criminal Procedure on the use of illegal evidence. Indeed, one could even incur in the conduct contemplated in article 198 of the Penal Code, which states: “Whoever records without consent the words of another or others, not intended for the public, or who, through technical procedures, listens to private manifestations not directed at him, shall be punished with one to three years of imprisonment, except as provided in the Law on registration, seizure and examination of private documents and intervention of communications. The same penalty shall be imposed on whoever installs devices, instruments, or their parts, for the purpose of intercepting or impeding oral or written communications, whether or not they achieve their purpose.” In the case under examination, the recording of the conversation held by the accused with Ms. [Nombre5] on July third, two thousand fourteen, starting at fifteen hours forty-five minutes, which was recorded by the latter without the consent of the former, is openly illegal, since a crime was not being committed through it, as the just-transcribed norm requires. In this chamber's opinion, the arguments used by the trial court to justify its validity are not acceptable. It is said that the inclusion of the recording finds protection in the freedom of evidence. However, the procedural legislation indicates in this regard: “Elements of evidence shall only have value if they have been obtained by a licit means and incorporated into the procedure in accordance with the provisions of this Code” (article 181 of the procedural code); likewise that: “Facts and circumstances of interest for the correct solution of the case may be proven by any permissible means of evidence, except for an express prohibition of the law” (article 182 ibidem). Thus, freedom of evidence finds an insurmountable limit in the legality of obtaining and incorporating the means of evidence. In this particular case, as indicated, the legality of obtaining the recording depends on the commission of a crime through the communication, a requirement absent here. The court also argues that Mrs. [Nombre5] had previously been called to insult her, without explaining why that would allow bypassing the requirement imposed by law, that a crime be in progress through the specific call that is recorded. It is also said that at the time of the call, a complaint had been filed before the prosecutor's office, which even led to charging the presumed commission of a crime.

However, a simple reading of Article 29 of the Law on the Registration, Seizure and Examination of Private Documents and Intervention of Communications makes it evident that the validity requirement for the registration is not the filing of a complaint or the presumed commission of a crime, but its effective commission during the communicative exchange; the former is dismissed due to its notorious incompatibility with the letter of the law, and the latter, due to the dangerous indeterminacy that speaking of a crime in terms of presumption would entail: presumed by whom? By the one recording the communication? By the prosecutor? Assessed at what moment? Before the call or ex post? In some way, the defendant, in her appeal, also introduces some degree of subjectivity into the analysis of the article, by affirming that the determination of the existence of the crime must be established by the receiver before receiving it. That also does not follow from the letter of the legal provision. The legitimacy of the recording does not depend on the good judgment shown by the participant in the conversation when assessing the unlawfulness; even less so, on the accuracy of their speculation about the eventual content of the call they are merely receiving; nor on their good intention. Theoretically, nothing excludes a bad-faith interlocutor from recording a conversation in which the other party commits a crime; under such conditions, the initial intention does not inhibit the validity of the registration. What matters, purely and simply, according to the legal text, is that a crime is committed through the communication. The truth of the matter is that here the crime did not exist, since in the very judgment being appealed, the accused was acquitted of the coercion that was being attributed to her as committed through the call. Thus, if the evidence is illegitimate, it could not be used in trial. Where one must not agree with the appellants is in the essential character attributed to the recording as part of the evidentiary element; in this, one even disagrees with the opinion of the trial court itself. The truth is that the fundamental statements made by the defendant in the conversation that was recorded were set forth by Ms. [Nombre5] in her testimony at trial. Furthermore, the rest of the evidentiary material analyzed by the a quo was added to this. The way in which the evidence implicated the accused [Nombre1], without needing to resort to the recording, was already set forth by this chamber in Considerando V, to which we refer to avoid unnecessary repetition. Dispensing with that piece of evidence does not change the conclusion regarding the accused's liability, neither criminal nor civil. Consequently, what must be ordered is, solely, the ineffectiveness of the registration made by [Nombre5] of the conversation she held with the defendant [Nombre1] on the third of July, two thousand fourteen. In those terms, the grounds assessed herein are upheld.

IX.- As a thirty-fifth ground, a lack of reasoning for the imposition of the penalty is alleged. The court provided a merely moralistic reasoning, contrary to the principles of proportionality, rationality, humanity, and resocialization of the penalty. The a quo is contradictory when it takes into account the defendant's public service to impose the sanction, but rejects the social harm, alleging that she committed the criminal acts as a private citizen and not as a public official. The court did not consider the personal aspects of the defendant, who is seventy years old and has cooperated with the process. Furthermore, she has no pending prosecutions. In the sixth claim of the appeal filed by the defendant, a lack of reasoning for the imposed penalty is invoked, under Articles 142 and 363 subsection b) of the Code of Criminal Procedure, 71 of the Penal Code, and 39 of the Political Constitution. The judgment indicates that the parameters for setting the penalty for each crime are the same, which is why it provides a global reasoning. But then the thirty-two crimes are used to provide grounds for each one of them, instead of doing so independently, as corresponds in a material concurrence (concurso material). Each act becomes an aggravating factor for the other thirty-one, which results in a disproportionate penalty of three years for each one, ninety-six for the thirty-two, and nine, by application of the concurrence rules. It considers that the arguments made in the second, third, fourth, and fifth grounds of her appeal must be taken into account, which, in her opinion, lead to a series of acts for which a conviction was handed down and which served as the basis for imposing a penalty of three years per crime having to be annulled, which would have an impact on the amount of the sanction. Also, the harm to the public treasury is considered globally, instead of assessing each harm independently. Thus, the harm produced by each one is not only used to set its penalty, but also that of the others. Although it does not expressly say so, the judgment uses report 233-DEF-A-425-16 from the Judicial Investigation Agency, but does not analyze it, instead making a global reference. It does not even consider that it includes taxes corresponding to the years two thousand four to two thousand eight, for which a definitive dismissal (sobreseimiento definitivo) was ordered. Regarding the declarations of the company Inversiones Adrofer Sociedad Anónima in two thousand ten, she was convicted for acts 7, 9, and 10 to a penalty of three years of imprisonment for each, based on the amount of tax defrauded. But according to the report, only one hundred thousand colones were left unpaid in two thousand ten by said company. She was convicted in act 16 for a declaration from two thousand eleven, but the report does not establish an amount left unpaid. She was also convicted in act 17 for the declaration of the company Consultoría ORS y Asociados Sociedad Anónima from two thousand eleven, but the report does not indicate that taxes were left unpaid by it. Regarding the declarations of Inversiones Beyof Sociedad Anónima from two thousand ten, she is convicted in act 12, but the report says that no tax payment would have been applicable that year. Even the amounts that would have been left unpaid, three million two hundred ninety-seven thousand nine hundred ninety-nine colones and thirty céntimos, is not high, taking into account that it corresponds to the years two thousand nine to two thousand thirteen, considering the number of acts and the minimum amount for the crime of tax fraud (defraudación fiscal) under Article 92 of the Code of Tax Rules and Procedures, which is five hundred salaries, many times the amount of what could have been left unpaid in this matter. The judgment acknowledges that the act tried is not a crime of tax fraud, but it gives importance to the tax fraud, without considering the parameters established regarding the amount required for the existence of a crime of that type. The harm to the treasury is not even the subject of this process, since it corresponds to an administrative sanction. The judgment did not consider the payments made in compensation for the unpaid taxes as a positive aspect. Rather, the rectifications were assessed to justify a harsher penalty, affirming that it was an attempt at a maneuver to escape liability. But this has no basis because, even if the tax amounts are corrected, the taxes must be paid in accordance with the corrective declaration, without eliminating the documentation of the original declaration, which remains in the database. Nor is it considered that the thirty-two convictions were for uses of private documents and not public ones, which implies a lesser wrongfulness, according to the Penal Code. The illegitimacy of the recording used by [Nombre5] prevents it from being taken into account for setting the penalty. Regarding the recording, assessments related to morality are made. The court considered the defendant's request to [Nombre5] that she go to deregister before the General Directorate of Direct Taxation; however, that does not imply any crime. The consideration of the defendant's academic background and status must be related to the amounts that would have been left unpaid. The court says it takes into consideration the defendant's conditions, such as her age, that she has a spouse and children who depend on her economically, and that she has no prosecutions. However, it does not say how they are taken into account. The deprivation of liberty of a seventy-year-old person is especially serious, considering her physical limitations. The defendant has serious ailments: replacement of both hips and breast cancer. She already suffered severe consequences from the acts, such as having to resign from the Ombudsman's Office (Defensoría de los Habitantes). For this reason, it requests the grounds be declared with merit and the penalty for all crimes be annulled, ordering a remand. The thematic unity of both reproaches allows them to be resolved jointly, and they must be declared with merit. In this appellate chamber's judgment, the trial court incurs an incorrect application of substantive law at the moment of setting the sanction. This is related to the rules established in the Penal Code for punishing the material concurrence. In this regard, that legal body states: “For the material concurrence, the penalties corresponding to all the crimes committed shall be applied, which may not exceed triple the highest penalty and in no case fifty years of imprisonment. The Judge may apply the penalty corresponding to each punishable act, provided this is more favorable to the offender” (Article 76 of the Penal Code). As can be seen, when a material concurrence is verified, the punishment for each punishable act must be established independently of the others, which is extremely important due to the limit the law imposes of not exceeding triple the most severe punishment. In this case, throughout the reasoning for the penalty, it is observed that the court considered, as a determining factor, the plurality of conducts committed to punish each of the crimes. In this way, the assessment of each act was increased by the consideration of the others and, as a result, the individual punishment became inflated. This is observed when the a quo points out: “Thus, in this particular case, the convicted person here, [Nombre1], committed not one, nor just a few, but a large number of serious unlawful acts –ninety-six uses of false documents in total– and over a long period of five years –from 2009 to 2014– (not in one day, nor during a month, nor several months, or even during a year), in her unbridled ambition to increase the assets of her three companies, and therefore her own, without caring about the interests, the assets of the Treasury, of the State, and ultimately of the people; that was the motive that determined her to commit the unlawful actions” (judgment, pp. 216 and 217). Later it reiterates the argument, adding: “The harm to the protected legal interest, in this case the public faith, is extremely serious, as it was violated on ninety-six occasions, in a concrete manner since it did not remain at ninety-six attempts, but rather there were ninety-six results, such as evading the treasury that many times, understand the tax collection of the State, and for an amount of millions that, although it could not be specified exactly, an estimate was made by the judicial experts as recorded in the respective report already referred to, and indeed it involved several million colones, not hundreds, nor thousands” (p. 218). It is worth noting that the number of acts considered there was the subject of rectification by the trial court, through a clarifying resolution at eight o'clock on the twelfth of September, two thousand nineteen, in which it was indicated, as could be deduced from the rest of the ruling, that the conviction was for thirty-two crimes of use of a false document and not for ninety-six. In any case, what is clear is that the importance of each act was weighed by adding the weight of the totality, by which the provision of Article 76 of the Penal Code was not applied, thereby affecting the sanction for each of the thirty-two crimes judged. Therefore, it is imperative to uphold the grounds, annulling the penalty imposed for all the acts judged, and the matter must return to the a quo so that, with a new composition, it may rule on the matter in accordance with the law.

X.- As a thirty-sixth ground, a lack of active standing of the Office of the Attorney General (Procuraduría General de la República) is invoked, which did not have the authority to file the civil action for damages, according to the principle of legality and Article 16 of the Code of Criminal Procedure. This is not one of the crimes that permit its participation, as the charge was for use of a false document. The Attorney General's Office seeks to collect tax charges that were paid to the Administration within an administrative procedure. Furthermore, there is no real harm caused by a criminal action; the Attorney General's Office alleged material harm and social harm; the material harm is the tax charges left uncollected, which have already been paid. The criminal process is not the avenue for collecting uncollected taxes. Social harm is alleged without justification. There is no affectation to a collective interest. Not admissible. The lack of standing of the Office of the Attorney General is asserted in the civil sphere because the crimes for which the defendant [Nombre1] was convicted are not within the scenarios of Article 16 of the Code of Criminal Procedure. The error in the argument begins to be seen from the title of the legal provision, which clearly indicates that it does not refer to civil action. The article in question states: “Criminal action / Criminal action shall be public or private. When it is public, its exercise shall correspond to the Public Prosecutor's Office, without prejudice to the participation that this Code grants to the victim or to citizens. In crimes against the security of the Nation, public tranquility, the public powers, the constitutional order, the environment, the maritime-terrestrial zone, the public treasury, the duties of public office, tax-related unlawful acts (ilícitos tributarios), and those contained in the Customs Law, No. 7557, of October 20, 1995; the Organic Law of the Central Bank of Costa Rica, No. 7558, of November 3, 1995; and the Law against the Illicit Enrichment of Public Servants, No. 6872, of June 17, 1983, the Office of the Attorney General may also directly exercise that action, without subordinating itself to the actions and decisions of the Public Prosecutor's Office. In matters initiated by the action of the Attorney General's Office, the latter shall be considered a party and may exercise the same remedies that this Code grants to the Public Prosecutor's Office.” Thus, since the article refers to criminal action, it could hardly be invoked to determine the legitimacy of the Office of the Attorney General to exercise civil action. It is Article 3 of the Organic Law of the Office of the Attorney General that states: “The attributions of the Office of the Attorney General are: / a) To exercise the representation of the State in matters of any nature, that are processed or must be processed in the courts of justice […]”. Therefore, if in this case the State considered itself damaged by the accused acts, it had the possibility of exercising civil action (Article 37 of the Code of Criminal Procedure), which it had to do, as indicated, through the Attorney General's Office. Likewise, that body has the attribution “[…] d) To intervene in criminal cases, in accordance with what this law and the Code of Criminal Procedure provide to that effect […],” which, in relation to civil action for social harm, refers us to article 38 of the procedural code, which states: “Civil action for social harm / The civil action may be exercised by the Office of the Attorney General, when dealing with punishable acts that affect collective or diffuse interests.” Thus, no problem of active standing for that state body is observed. It is also affirmed that the Attorney General's Office seeks to collect charges already paid. If that were the case, the appellants not only had to have raised it as an argument but also provide the supporting evidence, since, being a matter of a civil nature, article 41 of the Code of Civil Procedure governs, which provides: “41.1 Burden of proof. The burden of proof is incumbent on: […] 2. Whom opposes a claim, regarding the impeditive, modifying, or extinguishing facts of the plaintiff's right […].” Thus, if an extinguishing fact of the obligation, such as payment, is alleged, the evidence should have been provided, which the appellants do not do. In any case, as long as the civil judgment was ordered in abstract, nothing would prevent the respective exception from being asserted in the civil venue, if it reaches those instances. The lack of justification for the social harm is also alleged, when there was no affectation to a collective interest. On that point, the rejection of the challenge is necessary due to lack of grievance (Article 439 of the Code of Criminal Procedure), since in the appealed judgment, the claim for social harm was dismissed. It is noted, however, that the matter will be subject to a ruling later, by virtue of arguments different from those the appellants put forth here (see Considerando XIV). For all the foregoing, the reproach is not admissible.

XI.- APPEAL OF THE DEFENDANT [Nombre1]. As noted in prior considerandos, the defendant also appealed the judgment rendered in this process. The first, third, and sixth grounds of her appeal have already been addressed previously, when resolving the arguments of her defense counsel, for reasons of thematic connection. The claims that have not been subject to a ruling are those set forth below. As a second reproach, a lack of legal reasoning and of reasoning for the penalty is alleged in the judgment, regarding the convictions for use of a false document related to the sworn statements D-101 and the informative statements D-151. The appellant considers Articles 142 and 363 subsection b) of the Code of Criminal Procedure; 71 and 372 of the Penal Code; 39 of the Political Constitution; 8 of the American Declaration of Human Rights; and the jurisprudence of the Inter-American Court of Human Rights to be violated. She indicates that the judgment lacks reasoning because the only reference it makes in this regard qualifies the acts attributed to the accused as use of a false public document, which it does without providing any justification. She maintains that this is important because the crime of use of a private document is only possible when there is a material falsehood (falsedad material), not one of an ideological nature. She refers that, regarding the D-101 and D-151 statements of the companies Edificio Adrofer Sociedad Anónima, Consultores ORS y Asociados Sociedad Anónima, and Inversiones Beyof Sociedad Anónima, the conviction was not for a material falsehood, but an ideological one, since it was affirmed that what was said in them was not true, particularly regarding the payments made to [Nombre5]. The claim specifically refers to the following acts and declarations: 1) D-151 number [Identificacion1], 2) D-151 number [Identificacion2], 4) D-101 number [Identificacion3], 5) D-101 number [Identificacion4], 7) D-151 number [Identificacion5], 8) D-151 number 15113003880516, 10) D-101 number [Identificacion6], 11) D-101 number [Identificacion7], 12) D-101 number [Identificacion8], 14) D-101 number [Identificacion9], 16) D-101 number [Identificacion10], 17) D-101 number CED12, 18) D-151 number CED13, 21) D-101 number CED14, 22) D-101 number CED15, 24) D-151 number CED16, 27) D-101 number CED17, 29) D-151 number CED18, and 30) D-151 number CED19. In none of these declarations is the conviction for a material falsehood, but rather an ideological one, since it is affirmed that what was said in them is not true, particularly regarding the payments made to [Nombre5]. This is relevant, since the use of a private document is not punishable when the falsehood is of an ideological nature. In a single reference, on page 123 of the judgment, it is affirmed that these were uses of a public document, without analysis or any justification. The consideration that these were uses of a public document and not a private one has no legal support, since the documents were not issued by a public official or by a notary public. The Code of Civil Procedure in force at the time of the acts, in its Article 369, defined what public documents and instruments were, a definition maintained in the new legal body on the matter, in Article 42.2. There is a consensus that, by exclusion, those documents that are not classified by law as public are deemed private documents. That idea is reflected in Article 45.3 of the new Code of Civil Procedure. Hence, the D-101 and D-151 statements must be considered private documents. The use of a false document must be understood in relation to the crimes contemplated between articles 366 and 371 of the Penal Code, which is important insofar as, regarding private documents, the punishable falsehood can only be material.

This is also of importance with respect to the following facts and declarations: 3) D-151 number [Identificacion19], 6) D-101 number [Identificacion20], 9) D-151 number [Identificacion21], 13) D-101 number [Identificacion35], 15) D-101 number [Identificacion22], 19) D-151 number [Identificacion23], 20) D-151 number [Identificacion24], 23) D-101 number [Identificacion25], 25) D-151 number [Identificacion26], 26) D-151 number [Identificacion27], 28) D-101 number [Identificacion28], 31) D-151 number [Identificacion29] and 32) D-151 number [Identificacion30]. In these cases, the conviction was justified by material falsehood, by falsifying the signature of [Nombre5]. For each of those facts, a sentence of three years of imprisonment was imposed, but the consideration of the seriousness was weighed based on the public or private nature of the document. The use of a false private document is less serious than that of a public one, adhering to the different valuation given to them by the Penal Code. This would also be related to the penalty regarding the first facts analyzed. Therefore, she requests that the ground be granted; that the conviction for facts 1, 2, 4, 5, 7, 8, 10, 11, 12, 14, 16, 17, 18, 21, 22, 24, 27, 29 and 30 be annulled; that, for procedural economy, the defendant be acquitted for those facts and, subsidiarily, that the conviction be annulled and a retrial ordered. She also requests that the sentence imposed be annulled with respect to all crimes for which the conviction must be maintained, including numbers 3, 6, 9, 13, 15, 19, 20, 23, 25, 26, 28, 31 and 32 and that, consequently, a retrial for sentencing be ordered. Without merit. Certainly, one must agree with the appellant when she indicates that the conviction against her was for the use of thirty-two false private documents, not public ones. She falsified two types of documents: the Annual declaration of clients, suppliers, and specific expenses (form D 151) and the Income tax sworn declaration (form D 101). Both are self-assessment returns, that is, designed to be completed by the declarant themselves, and therefore cannot hold the status of public documents that are today, nor could they at the time the falsehoods were incurred, those prepared by public officials, with the legal forms and within the limits of their attributions. The only citation in the judgment in which public documents are mentioned reads as follows: “Nor was it possible to establish the criminal liability of the accused in seven of the thirty-nine crimes of Use of a Public Document attributed to her in the accusation” (judgment, p. 123). The issue was not developed, as it was evidently not intended to argue in favor of the nature of the falsified documents; that was not the context of the statement. Therefore, it is reasonable to think that the reference was a simple oversight by the adjudicating body. Now then, from that private nature of the memorials, it is sought to deduce the atypicality of the conduct of preparing all those declarations in which the falsehood was not of a material nature, with the argument that, when dealing with private documents, ideological falsehood is not typical. As a corollary, it is also sought to deduce the atypicality of the use of such documents. In the judgment of this chamber, the interpretation is incorrect. Article 368 of the Penal Code indicates: “Imprisonment of six months to two years shall be imposed on whoever makes, in whole or in part, a false private document or adulterates a true one, such that damage may result” (Article 368 of the Penal Code). From that wording, it is deduced that the crime of falsification of private documents can refer to both the material and intellectual aspects of the document, as the verb “make” can comprise both. Something similar occurs with the crime of falsification of public and authentic documents in numeral 366 of the same code, a norm that states: “Shall be punished with imprisonment of one to six years, whoever makes, in whole or in part, a false document, public or authentic, or alters a true one, such that damage may result. / If the act was committed by a public official in the exercise of their functions, the penalty shall be two to eight years.” The similarity between both provisions raises the question of the need for the criminal offense of ideological falsehood in Article 367 of the Penal Code. If numeral 366 already contemplates the falsehood of the intellectual content of the document, is 367 redundant? The answer given by jurisprudence is negative. The precision made in the cited Article 367, which refers: “The penalties provided in the previous article are applicable to whoever inserts or has inserted into a public or authentic document false declarations, concerning a fact that the document must prove, such that damage may result,” is due to the particular nature of the public documents it regulates, and to the fact that these must be prepared by officials, to attest to certain events. To that extent, the typical “making” (by the official or another person), or “having inserted” (an exclusive action of a third party) can be verified in them; behaviors which, being diverse, justify separate regulation. This necessity does not arise in private documents, which are only prepared by private subjects, to produce effects among themselves or towards third parties, in certain hypotheses —without prejudice to the concurrence of the assumptions of co-authorship or complicity when others participate—. Therefore, in the case of private documents, there is no specific article that contemplates the falsehood of their ideological aspects, without this implying that it is not included in the offense. This criterion has been upheld by the Third Chamber of the Supreme Court of Justice, indicating: “As a grievance of the appeal for defects in iudicando filed by the defense of the accused [Nombre6]., the non-observance of Articles 1, 30 and 359 of the Penal Code is alleged, as it estimates that the conduct of its client does not constitute any crime, because the falsehood of the document prepared by him is reduced to its intellectual content, so that in reality it is an ideological falsehood which, as it deals with a private document, should be declared atypical.- This Chamber considers that the claim is not admissible, because if our Penal Code distinguishes between ‘material’ falsehood and ‘ideological’ falsehood in public or authentic documents, this is precisely due to the legal nature of the document, which by its drafting, forms and issuance by public officials within the limit of their attributions, provides full proof —while not argued to be false— of the material existence of the facts that the public officer affirms in them to have performed themselves, or to have occurred in their presence, in the exercise of their functions (cf. Articles 369 and 370 of the Code of Civil Procedure). For this reason, the indicated distinction lacks meaning when dealing with private documents, to which, precisely due to their informality and because they are not issued by public officials in the exercise of their functions, nor are they enforceable erga omnes, the law only recognizes probative value between the parties and in relation to third parties regarding the statements contained therein, barring proof to the contrary, provided they have been judicially recognized or declared recognized according to legislation (cf. Article 379 of the Code of Civil Procedure). This Chamber does not ignore that for Argentine doctrine (among which counts [Nombre25], cited by the appellant) ideological falsehood only constitutes a crime when dealing with public documents. However, this is because the structure of the criminal offenses contained in the Chapter on Falsification of Documents in General of its Penal Code is different from ours, which can be clearly corroborated by analyzing Articles 292 to 298 bis of its legal text. In the first of those norms, under the title of Material falsification, the one who makes, in whole or in part, a false document or adulterates a true one is sanctioned, such that damage may result, whether its nature is public or private (the only difference being the penalty provided for each assumption). Then, Article 293 of the Argentine text states that ‘Ideological falsehood’ must refer to public documents, but extending the repression, by express exception, to two types of private documents, namely, medical certificates and confirmed invoices. In view of the structure of these criminal offenses, the reasons are clear why Argentine doctrine states that the Falsification of a private document is constrained to its materiality, while ideological or historical falsehood —with the two expressed exceptions— is only possible regarding public documents, since extending the punishability of ideological falsehood to all other private documents would imply an analogical application of criminal law, prohibited by the principle of legality (cf. [Nombre26], Omar and another: Código Penal y Leyes Complementarias, comentado, anotado y concordado, Buenos Aires, Editorial Astrea, 1987, pp. 988, 989, 991 and 992; SOLER, Sebastián: Derecho Penal Argentino, T. V, Buenos Aires, Tipográfica Editora Argentina, 1970, p. 349; FONTAN (sic) BALESTRA, Carlos: Derecho penal Parte Especial, Buenos Aires, Abeledo Perrot, 1978, pp. 654, 655, 659; CREUS, Carlos: Falsificación de documentos en general, Buenos Aires, Editorial Astrea, 1986, pp. 127 and 128). This is why the doctrine they use does not allow the appellant to ground their grievance. Resuming the analysis of Costa Rican legislation and to give further reasons on the application and interpretation of the criminal offenses under discussion (since the criterion stated here modifies the previous jurisprudence of this Chamber, for example see resolution No. 114 of 8:25 on June 19, 1986), it must be noted again that Articles 357 and 358 of the Penal Code allude exclusively to public or authentic documents, the first being the genus and the second the species of the first, whose application must be resolved in each case according to the norms governing the concurrence of crimes. This is so, because unlike its counterpart in Argentine legislation, Article 357 does not expressly and exclusively allude to the ‘materiality’ of the document, but rather under the title of ‘Falsification of public and authentic documents’ states that: «Shall be punished with imprisonment of one to six years, whoever makes, in whole or in part, a false document, public or authentic, or alters a true one, such that damage may result. If the act was committed by a public official in the exercise of their functions, the penalty shall be two to eight years» (underline not in original). Article 359 of the Penal Code provides that the crime of Falsification of private documents is incurred by: «Imprisonment of six months to two years shall be imposed on whoever makes, in whole or in part, a false private document or adulterates a true one, such that damage may result» (underline not in original). If we compare the two transcribed articles, we can easily verify that they are the same except for the non-underlined parts, that is, regardless of the nature of the document and other personal or circumstantial circumstances, both criminal offenses refer to the conduct of whoever makes, in whole or in part, a document or adulterates it, where ‘make’ means, according to the common sense of the words, to produce, give form, execute, give intellectual being, cause, arrange, compose or perfect the document (cf. the first ten common meanings of the word ‘hacer’ in the Diccionario de la Lengua Española, Real Academia Española, 21st edition, Madrid, 1992, p. 763), that is, that both criminal offenses allude —in principle— to both the material and ideological aspects of the document, its only exception being the case in which ideological falsehood (Article 358) pertains to a public or authentic document, an exception that is justified —as has been repeatedly stated— by the superior probative nature of this type of documents and particularly because their preparation supposes the intervention of a public official who, eventually, could be the author of either of these two crimes sanctioned by Articles 357 and 358; or whose public faith could be materially falsified or altered by another subject (in the case of Article 357), or illegally employed by another person (in the case of Article 358). For this reason, we estimate that our legislation, by safeguarding the public faith of public or authentic documents, in attention to their nature and the qualities of the subjects who can harm it, provided for Ideological falsehood as a species of Falsification (genus), since the person who attests and ‘makes’ the materially authentic public document may not be the person who ‘has’ false statements inserted into it, concerning a fact that the document must prove. Therefore, it is unnecessary, given the generic formulation of Article 359, for the ideological falsehood of private documents to have been expressly sanctioned, as these are not issued by a public official, but simply by a private individual who by themselves attests (personal or individual faith, not public) to what they record therein, so that it is possible to consider as Falsification of a private document, provided damage may result: 1) the preparation of a document authentic in its material conditions of existence, but totally or partially false with respect to the facts that are sought to be proven as true therein, or; 2) the falsification or total or partial alteration of the materiality of a document, even if the fact sought to be proven with it is true. As a corollary of the above, it results that, the fact that the author of the ideological falsehood in the private document is not the same person who materially prepared the document, does not exclude their authorship for the purposes of Article 359, but would at most imply the participation of another subject in the same crime, whether as co-author or accomplice, which would obviously depend on the existence and specific content of their intent” (Third Chamber, v. 252-97, of 9:25 on March 14, 1997). As a consequence of the above, it must be concluded that the crime of use of a false document in Article 372 of the Penal Code, which states: “Shall be punished with one to six years of imprisonment, whoever uses a false or adulterated document,” is applicable both to situations where the material content and the intellectual content of the document are falsified, even when it is of a private nature. The appellant argues that the erroneous categorization of the documents as public affected the penalty referred to those facts in which the detected falsehood was of a material nature, since the seriousness of a falsification of a public document is greater than that of one of a private nature. Moreover, she argues that that categorization would have affected the penalty for the first falsifications mentioned, in case the conviction for them was correct, for identical reasons. But the issue of the penalty for the conduct was already resolved in recital IX, so it is unnecessary to delve into it, and therefore a ruling on that point is omitted. Consequently, the rejection of the claim is imposed.

**XII.-** As a **fourth objection,** a lack of grounding of the judgment is claimed with respect to the use of a false document, related to the D-101 declarations of the companies Edificio Adrofer Sociedad Anónima, Consultores ORS y Asociados Sociedad Anónima and Inversiones Beyof Sociedad Anónima and with respect to the sentence imposed for all the crimes. The violation of Articles 142 and 363 subsection b) of the Criminal Procedural Code, 39 of the Political Constitution, 8 of the American Convention on Human Rights and the jurisprudence of the Inter-American Court of Human Rights is asserted. She points out that it is not justified in the judgment why, if the D-101 declarations do not mention a list of clients, but only of expenses, it is assumed that [Nombre5] is included in such declarations. The issue concerns the following facts and declarations: **4)** D-101 number [Identificacion3], in which no list of clients is included, and therefore Mrs. [Nombre5] is not mentioned. In the costs, expenses, and deductions section of the declaration, the sum of three million six hundred thirty-three thousand three hundred thirty-three colones is simply stated, without any breakdown of expenses. **5)** D-101 number [Identificacion4], in which no list of clients is included, and therefore Mrs. [Nombre5] is not mentioned. In the costs, expenses, and deductions section of the declaration, the sum of three million nine hundred forty-two thousand three hundred thirty-three colones is simply stated, without any breakdown of expenses. **10)** D-101 number [Identificacion6], in which no list of clients is included, and therefore Mrs. [Nombre5] is not mentioned. In the costs, expenses, and deductions section of the declaration, the sum of one million nine thousand colones is simply stated, without any breakdown of expenses. **11)** D-101 number [Identificacion7], in which no list of clients is included, and therefore Mrs. [Nombre5] is not mentioned. In the costs, expenses, and deductions section of the declaration, the sum of four million colones is simply stated, without any breakdown of expenses. **12)** D-101 number [Identificacion8], in which no list of clients is included, and therefore Mrs. [Nombre5] is not mentioned. Expenses of nineteen million eight hundred eighty-nine thousand nine hundred thirty-three colones are reported, without any breakdown thereof and without mentioning Mrs. [Nombre5]. Even in fact twelve, the total expenses referred to in D-101 number [Identificacion8] and the total expenses corresponding to [Nombre5] are not even mentioned. Regarding the two thousand ten period (facts 7 to 13), it is not mentioned that Inversiones Beyof Sociedad Anónima had filed an informative declaration D-151 mentioning expenses corresponding to [Nombre5]. At no time, in the D-151 declarations of Inversiones Beyof Sociedad Anónima for two thousand ten, nor in the D-151 number [Identificacion21] of [Nombre5] for two thousand ten (fact 9), is any payment from Inversiones Beyof Sociedad Anónima to her mentioned. **14)** D-101 number [Identificacion9], in which no list of clients is included, and therefore Mrs. [Nombre5] is not mentioned. In the administrative expenses and sales section of the declaration, the sum of fifteen million one hundred fifty-two thousand seven hundred ninety-one colones is simply stated, without any breakdown of expenses. **16)** D-101 number [Identificacion10], in which no list of clients is included, and therefore Mrs. [Nombre5] is not mentioned. In the administrative expenses and sales section of the declaration, the sum of one million colones is simply stated, without any breakdown of expenses. In the facts for which a conviction is imposed regarding the two thousand eleven period (facts 14 to 20), it is not mentioned that Edificio Adrofer Sociedad Anónima had filed an informative declaration D-151 in which it mentioned [Nombre5]. Nor is it mentioned in relation to the informative declaration D-151 number [Identificacion23] of [Nombre5]. **17)** D-101 number [Identificacion11], in which no list of clients is included, and therefore Mrs. [Nombre5] is not mentioned. The amount of the expenses is not even specified. In the administrative expenses and sales section of the declaration, the sum of five hundred thousand colones is simply stated, without any breakdown of expenses. When listing the D-151 declarations for two thousand eleven (facts 18 to 20), no informative declaration D-151 by Consultoría ORS y Asociados Sociedad Anónima is mentioned that refers to a payment to [Nombre5]. **21)** D-101 number [Identificacion13], in which no list of clients is included, and therefore Mrs. [Nombre5] is not mentioned. Despite this, it is assumed that said declaration included expenses of seventeen million three hundred forty-five thousand three hundred eighty-five colones, which included fictitious expenses in the name of Mrs. [Nombre5]. **22)** D-101 number [Identificacion14], in which no list of clients is included, and therefore Mrs. [Nombre5] is not mentioned. Additionally, it is not specified in what way this rectifying declaration would have modified D-101 number [Identificacion13], which would be related to the possible effect it could produce, being a simple reiteration of the previous one. **27)** D-101 number [Identificacion16], in which no list of clients is included, and therefore Mrs. [Nombre5] is not mentioned. In spite of this, it is assumed that said declaration included expenses of sixteen million seven hundred sixty-seven thousand four hundred two colones, which included fictitious expenses in the name of Mrs. [Nombre5]. The tribunal justified the sentence of three years of imprisonment for each fact, invoking the quantity of the crimes of use of a false document. For this reason, she requests that the ground be partially granted, that the conviction for the facts numbered 4, 5, 10, 11, 12, 14, 16, 17, 21, 22 and 27 be annulled and, for procedural economy, the defendant be acquitted; subsidiarily, that a retrial be ordered. Furthermore, that the sentence be annulled with respect to all the crimes for which the conviction is upheld, ordering a retrial. **Partially with merit.** Form D 101 corresponds to what is known as the “Income tax sworn declaration”. Through it, the natural or legal person accounts for their taxable income and the debt they must assume with the tax authority in a given year. To arrive at this, they must consider a series of factors, contemplated in the form, such as the assets or liabilities acquired in the period, their income, costs, expenses, and deductions. Regarding expenses, the declarant has a space to record their total amount, but not the breakdown thereof, because the detail of these is not the purpose of the income tax declaration. That precise breakdown is carried out in another form, the D 151, called “Annual summary declaration of clients, suppliers, and specific expenses”, also called “Third-party declaration”, which is also prepared each year. This other document comprises a general part, in which the declarant is identified and expenses are broken down, divided by specific category; and a detail sheet in which the data of the beneficiaries of those expenses are specified. Therefore, the existence of false data included in some sworn income tax declaration cannot be detected by focusing exclusively on that declaration; rather, it must be related to the respective Annual summary declaration of clients, suppliers, and specific expenses, or Third-party declaration. Thus, it is true that in the D-101 declaration number [Identificacion3] of the company Edificio Adrofer Sociedad Anónima, for the year two thousand nine, the name of [Nombre5] is not mentioned. It is also true that, in the costs, expenses, and deductions section of the declaration, the sum of three million six hundred thirty-three thousand three hundred thirty-three colones is simply stated, without any breakdown of expenses (folder of declarations, certification inside the manila envelope on f. 17). However, getting to that point is only traveling half the path, if what is involved is establishing the existence of the falsehood.

It is also necessary, furthermore, to refer to declaration 151 of the same company number CED21, to realize that in that same year it reported total expenses for professional services of three million six hundred thirty-three thousand three hundred thirty-three colones, of which, according to the detail sheet, three million five hundred thousand colones were supposedly paid to [Nombre5]. The falsity is evident, given that, as was proven beyond any doubt, Ms. [Nombre5] never provided professional services to that company or any other, since she is not even a professional. It is also true that in the D-101 declaration number [Identificacion4] for the year two thousand nine, of Consultoría ORS y Asociados Sociedad Anónima, a client list is not included, and therefore Ms. [Nombre5] is not mentioned. Likewise, in the costs, expenses, and deductions section of the declaration, the sum of three million nine hundred forty-two thousand three hundred thirty-three colones is simply stated, without any breakdown of expenses (declarations file, certification within manila envelope on f. 18). But such information must be related to the same company's declaration number [Identificacion36], which indicates that in that year Ms. [Nombre5] was used as a provider of professional services for three million five hundred thousand colones (declarations file, within manila envelope, f. 296), which is false, due to everything that has already been analyzed throughout this judgment. Therefore, it can indeed be affirmed that the referenced income tax return contains false information. Likewise, it is true that in the D-101 declaration number [Identificacion6] of Edificio Adrofer Sociedad Anónima, for the year two thousand ten, a client list is not included, and therefore Ms. [Nombre5] is not mentioned. It is also true that in the costs, expenses, and deductions section of the declaration, the sum of one million nine thousand colones is simply stated, without any breakdown of expenses (declarations file, certification within manila envelope on f. 17). But that declaration must be related to number [Identificacion5] of the same company, which indicates that, in that same year, Mrs. [Nombre5] was paid professional services for one million colones (declarations file, fs. 220 to 223). In this way, it is proven that part of the professional services deducted when paying income tax corresponded to a non-existent expense to Ms. [Nombre5]. The D-101 declaration number [Identificacion7] for the year two thousand ten, of Consultoría ORS y Asociados Sociedad Anónima, does not include a client list, and therefore Ms. [Nombre5] is not mentioned. It is also true that, in the costs, expenses, and deductions section of the declaration, the sum of four million colones is simply stated, without any breakdown of expenses (declarations file, certification in manila envelope on f. 18). But it is also true that in that same year, that company reported the payment of four million colones for professional services in the name of [Nombre5] (declarations file, certification on fs. 271 to 273). It is true that in the D-101 declaration number [Identificacion9] for the year two thousand eleven, of the company Inversiones Beyof Sociedad Anónima, a client list is not included, and therefore Ms. [Nombre5] is not mentioned. It is also true that, in the administrative sales and expenses section of the declaration, the sum of fifteen million one hundred fifty-two thousand seven hundred ninety-one colones is simply stated, without presenting a breakdown —fifteen million five hundred forty-three thousand one hundred ninety-one colones, if the concept of depreciation, amortization, and depletion is added, to establish the absolute total of expenses— (declarations file, certification in manila envelope on f. 16). However, this information must be correlated with that recorded in the expense declaration [Identificacion12], of the same company and the same year, in which it is recorded that part of what was paid in that period were professional services for eight million colones to Ms. [Nombre5] (declarations file, certification on fs. 157 to 173). It is also true that in the D-101 declaration number [Identificacion13] for the year two thousand twelve, of the company Inversiones Beyof Sociedad Anónima, a client list is not included nor is [Nombre5] mentioned, despite which it is understood that said declaration included expenses for seventeen million three hundred forty-five thousand three hundred eighty-five colones, contemplating fictitious expenses in the name of Mrs. [Nombre5] (declarations file, certification on fs. 63 to 81). However, it cannot be overlooked that the expense declaration [Identificacion15] for that year of that company clearly indicates that professional services were paid to Ms. [Nombre5] (declarations file, certification on fs. 174 to 187), who never provided them. It is equally true that the D-101 declaration number [Identificacion14] for the year two thousand twelve of the company Inversiones Beyof Sociedad Anónima does not include a client list, and therefore Ms. [Nombre5] is not mentioned, as this does not correspond to this type of declaration (declarations file, certification on fs. 63 to 81). But as already indicated in the previous case —this being a rectification of number [Identificacion13]—, the expense declaration [Identificacion15] for that year, of that company, indicates that professional services were paid to Ms. [Nombre5] (declarations file, certification on fs. 174 to CED22), which is not true. It is also questioned how this rectifying declaration would have modified the D-101 number [Identificacion13]. The answer is found in the filing date observed in the documents: one was filed on November twentieth, two thousand twelve, and the other the following day, as seen at the end of each one, so two uses of a false document occurred on different days. It is also true that the income tax return D-101 number [Identificacion16] does not include a client list, and therefore Ms. [Nombre5] is not mentioned, and it included expenses for sixteen million seven hundred sixty-seven thousand four hundred ninety-two colones (correcting the small material error made by the appellant) (declarations file, certification on fs. 69 to 81). However, it cannot be overlooked that said company, in that year, indicated expenses for six million colones in the name of Mrs. [Nombre5], on two occasions, in declarations [Identificacion17] and [Identificacion18] (declarations file, certification on fs. 188 to 204). The appellant must be granted reason regarding the D-101 declaration number [Identificacion8] for the year two thousand ten, of the company Inversiones Beyof Sociedad Anónima, which finds no link with [Nombre5] through said company's third-party declaration for the year two thousand ten number [Identificacion37], since this latter declaration does not mention such person (declarations file, certification on fs. 138 to 140). It is not clear from where the court derived that there was a falsity in the income tax return, and therefore on that point the sentence must be annulled and a remand ordered. The same occurs with the D-101 declaration number [Identificacion10] for the year two thousand eleven, of the company Edificio Adrofer Sociedad Anónima. In the third-party declarations of said company, for that year, numbered CED23, CED24, and CED25, the payment of professional services to Mrs. [Nombre5] is not recorded (declarations file, certification on fs. 223 to 233). The claim is also admissible regarding the D-101 declaration number [Identificacion11] for the year two thousand eleven, of the company Consultoría ORS y Asociados Sociedad Anónima, which finds no support in the company's third-party declaration for the year two thousand eleven, number CED26 (declarations file, certification on fs. 274 to 279). Consequently, it is necessary to annul the conviction for these last three declarations, ordering a remand for a new proceeding in accordance with the law. The issue of the consequences of what is ordered here on the penalty, which the appellant brings up, must be obviated by reason of what is provided on the matter in Considerando IX of this resolution. As for the rest, the rejection of the claim is imposed.

**XIII.-** As a **fifth ground**, a lack of correlation between accusation and sentence is claimed, with a violation of articles 142 and 365 of the Código Procesal Penal and 39 of the Constitución Política. It argues that fact number 12, referring to declaration number [Identificacion8], includes fictitious payments to [Nombre5], but it starts from accused fact number 9, for the year two thousand ten, in which this is not affirmed. The reference to expenses is with respect to declaration [Identificacion7], in the name of Consultoría ORS y Asociados Sociedad Anónima, and [Identificacion6], in the name of Edificio Adrofer Sociedad Anónima. On the other hand, fact 16, about the D-101 declaration number [Identificacion10], departs from fact 3 of the accusation, referring to the year two thousand eleven, in which said declaration is mentioned. The accusation made no mention of amounts or that it reported fictitious expenses in favor of [Nombre5]. With respect to fact 17, D-101 declaration [Identificacion11], it mentions fictitious payments to [Nombre5], departing from accused fact 3, which simply refers to the fact that the declaration was filed, without attributing that it contained fictitious payments in favor of [Nombre5]. The sentence adds that through this declaration, fictitious payments to [Nombre5] were included. The annulment of the conviction for the indicated facts must lead to the annulment of the three-year penalty set in relation to all the facts for which the conviction was handed down, since, to justify the sanction, the court repeatedly mentioned that it was due to the conviction for thirty-two uses of a false document. Therefore, it requests that the ground be declared with merit, the conviction for facts 12, 16, and 17 be annulled, and the defendant be acquitted, for procedural economy; subsidiarily, that a remand be ordered. Furthermore, that the penalty be annulled with respect to all crimes for which the conviction is upheld. **Not granted.** After a brief introduction about the defendant's relationship with the companies whose tax declarations were falsified, the accusation narrates the following: *"5. By virtue of the foregoing, the accused [Nombre1], as representative and member of the Board of Directors of the companies described above, devised a criminal plan to benefit financially through her companies by paying lower taxes, which she achieved by including false data in declarations before the Dirección General de Tributación of the Ministerio de Hacienda. To do this, she also usurped the identity of the victim [Nombre5], for which she had the collaboration and active participation of the co-accused [Nombre6], who served during the period investigated as the trusted accountant of Mrs. [Nombre1]. a. In this way, in the period between the year 2004 and the year 2013, the accused [Nombre1] and [Nombre6] included false data in the official forms of the Dirección General de Tributación of the Ministerio de Hacienda, of the Annual Declaration of Clients, Suppliers, and Specific Expenses (Form D151) and of the Sworn Declaration of Income Tax (Form D101) of the companies Inversiones BEYOF S.A., Edificio ADROFER S.A., and Consultoría ORS y Asociados S.A. In said documents, the accused falsely indicated that the victim [Nombre5] provided professional services to the indicated companies, by virtue of which fees were paid to her that were classified as company expenses and therefore reduced the taxable base of the taxes they had to pay. b. In the same way, the accused [Nombre1] and [Nombre6], in the period between the year 2004 and 2013, included false data in the official forms of the Dirección General de Tributación of the Ministerio de Hacienda, of the Annual Declaration of Clients, Suppliers, and Specific Expenses (Form D151) and of the Sworn Declaration of Income Tax (Form D101) of the victim [Nombre5], falsely indicating that said victim provided professional services to the indicated companies, by virtue of which fees were paid to her"* (accusation uploaded to the virtual desktop on October 18, 2016, pp. 2 and 3). Subsequently, the accusation specified the data for each of the declarations in which the referred-to conduct was materialized. Regarding those related to the present claim, the accusatory document indicated: *"9.-It was thus that on December 14, 2010, the accused [Nombre1], with the intention of benefiting through the lower payment of tax burdens, personally or through an intermediary presented at a Scotiabank branch simultaneously the Sworn Income Tax Declarations D-101 numbers [Identificacion8] in the name of Inversiones BEYOF Sociedad Anónima […]”* (accusation, p. 14); and *"3.-It was thus that, the accused [Nombre1] and [Nombre6], acting by common agreement according to the plan devised to defraud the tax administration with the purpose of reducing their tax responsibilities and benefiting from the lower payment of tax burdens, simultaneously presented declarations [Identificacion9] in the name of the company Inversiones BEYOF Sociedad Anónima, number [Identificacion22] in the name of the victim [Nombre5], number [Identificacion10] in the name of Edificio ADROFER Sociedad Anónima, and [Identificacion11] in the name of Consultoría ORS y Asociados Sociedad Anónima on December 9, 2011, at the same Scotiabank branch, Scotia Private Client Group Transito #204”* (accusation, pp. 15 and 16). With the exception of the changes made in the introductory part, by virtue of the fact that the defendant was convicted only for conduct after the year two thousand nine, what was transcribed was practically reiterated in the demonstrated facts of the judgment (sentence, pp. 104, 105, 113, and 114), so a violation of the correlation between accusation and sentence is not appreciated if the accused facts and demonstrated facts are compared. However, the appellant detects certain differences between the accusation and what is recorded in the substantive analysis section. What she should not overlook is that this is a product of the natural enrichment derived from the reception of evidence during the trial. Thus, in what the appellant identifies as "fact number 12" —which is not a demonstrated fact, but one that corresponds to the reasoning—, when performing the intellectual analysis, it states: *"**12) D-101 number [Identificacion8],** with the intention of benefiting through the lower payment of tax burdens, [Nombre1] signed said declaration which was in the name of Inversiones Beyof S.A., in which false information was included referring to sales and administrative expenses, which included the expenses reported in the name of [Nombre5], a declaration that was filed with the Tax Administration on December 14, 2010, and for greater abundance, it is clear that said declaration was signed by the sentenced Taitelbaum, since in Expert Report No. DCF: 2015-01402-AED issued by the Sección de Análisis de Escritura y Documentos Dudosos del Departamento de Ciencias Forenses, in Result 12 her signature is confirmed […]”* (sentence, p. 189, bold from the original). The appellant's complaint is that in fact 9 of the year two thousand ten, in the accusation, it was not specified that this declaration was related to fictitious payments to [Nombre5], which is effectively true. However, it overlooks that this fact 9 of the accusation cannot be read in isolation from the general part of the same, transcribed above, which clearly indicates that the maneuvers carried out by the defendant and the accounting assistant [Nombre6] consisted, precisely, of attributing to the companies represented by [Nombre1] the payment of non-existent services to Mrs. [Nombre5]. Point 12, of which the appellant complains, is nothing more than another way of wording the same thing that is already included in the accusatory document, arguably with greater precision. The fundamental point is that with this wording, nothing is introduced that cannot be extracted from a complete reading of the prosecutorial request. The appellant's error lies in comparing that point 12 with the exclusive reading of accused fact number 9, thereby arriving at a biased interpretation. Something similar occurs with the so-called "fact 16", which is seen in the intellectual reasoning of the judgment. In it, the a quo affirms: *"**16) D-101 number [Identificacion38],** in which false information was included referring to the sales and administrative expenses of the company Edificio Adrofer S.A., for an amount of one million colones, which included the fictitious expenses reported in the name of [Nombre5], and with the intention of benefiting through the lower payment of tax burdens, said declaration was filed with the Tax Administration on December 9, 2011, and for greater abundance, it is clear that said declaration was signed by the sentenced Taitelbaum, since in Expert Report No. DCF: 2015-01402-AED issued by the Sección de Análisis de Escritura y Documentos Dudosos del Departamento de Ciencias Forenses, in Result 21 her signature is confirmed […]”* (pp. 191 and 192). The complaint is about the inclusion of amounts and the name of Mrs. Otárola, which is not seen in fact 3 of the year two thousand eleven of the accusation. But the specification of the amount is a product of the evidence presented at trial and, most importantly, the essential description of the conduct has not varied, insofar as one avoids the error of reading that fact 3 separated from the introductory part of the accusation. Finally, the complaint about "fact 17" derives from the same type of error. In the substantive assessment, the court indicated: *"**17) D-101 number [Identificacion39],** in which false information was included referring to the sales and administrative expenses of the company Consultoría ORS y Asociados S.A., which included the fictitious expenses reported in the name of [Nombre5], and with the intention of benefiting through the lower payment of tax burdens, said declaration was filed with the Tax Administration on December 9, 2011, and for greater abundance, it is clear that said declaration was signed by the sentenced Taitelbaum, since in Expert Report No. DCF: 2015-01402-AED issued by the Sección de Análisis de Escritura y Documentos Dudosos del Departamento de Ciencias Forenses, in Result 27 her signature is confirmed"* (p. 192, bold from the original). Once again, it must be indicated that the reference to the inclusion of expenses in favor of Ms. [Nombre5] is not a matter foreign to the accusation, insofar as one does not incur the error of reading fact 3 of the year two thousand eleven in isolation, understanding that, as a unit it is, the accusation cannot be understood if its general part is excluded. Even though the errors pointed out in this ground are not admissible, it is worth noting that, for different reasons, indicated in the preceding considerando, the conviction for declarations number [Identificacion10] of Edificio Adrofer Sociedad Anónima and [Identificacion11] of Consultoría ORS y Asociados Sociedad Anónima were annulled, which will be taken into account in the operative part of the judgment. For the stated reasons, the rejection of the ground heard here is appropriate.

**XIV.- APPEAL OF THE PROCURADURÍA GENERAL DE LA REPÚBLICA.** Attorney Miguel H. Cortés Chaves, Procurador de la Ética, also appeals the sentence issued in this case. As a **sole ground**, he alleges lack of reasoning and contradictory reasoning in the rejection of the civil claim for social damage. He affirms that it was proven that the defendant falsely used documents, being a person who held an important public office, which was sullied by the acts committed. The head of the Defensoría de los Habitantes herself asked a private individual to lie to a journalist so as not to tarnish her name, because her position was very important, recognizing that the institution's image was damaged. A legal entity such as the Defensoría de los Habitantes can receive moral damage, above all for conduct like that of its head, which harms the intangible values that constitute part of the institution's patrimonial value. The interest harmed in the present case is public, due to the evasion carried out by a public official who held the highest office in the Defensoría. The fact that a public official was prosecuted for a crime and convicted, even if for actions carried out in the personal sphere, generates social damage. The head of that institution is required to have moral solvency, in accordance with article 4 of the Ley de la Defensoría de los Habitantes. The Defensoría is the body responsible for defending the rights and interests of the inhabitants. It must ensure that the functioning of the public sector adheres to morality, justice, the Constitución Política, the laws, the conventions, treaties, and pacts signed by the Government, and the general principles of law. The court's reasoning was contradictory when it considered that the acts were carried out in her private sphere, but later indicated that said office calls for maintaining behavior as an honest, decent, moral citizen, as a public figure in the private sphere. Social damage is a category of non-material damage, subject to the same rules as moral damage. The defendant [Nombre6] recognized that these facts harmed the defendant [Nombre1] for being a public figure.

People who heard the news expressed their discontent on social media. They maintain that public officials must respect ethical values and cite an opinion of the Office of the Attorney General of the Republic (Procuraduría General de la República). Article 38 of the Code of Criminal Procedure allows the Office of the Attorney General to exercise civil action when collective and diffuse interests are affected. The court could have derived the existence of social harm, as intangible harm, without having direct evidence and by making a derivation based on human presumptions. Therefore, it requests that the appeal be declared admissible, the decision regarding the rejection of social harm be annulled, and the matter be resolved in accordance with the law. <span style=\"font-family:Arial; font-weight:bold\">With merit. </span><span style=\"font-family:Arial\">The sentence under review rejected the category of social harm in the civil action, arguing the lack of a causal link between the acts carried out and the harm invoked (judgment, p. 262). However, if one delves deeper into the court's reasoning, that causality issue it mentions pertains to the separation of the public and private spheres in which the defendant moved. The court stated it thus: </span><span style=\"font-family:Arial; font-style:italic\">"The proven acts were carried out by the civil defendant in her private sphere, even under the character of representative held in three corporations (sociedades anónimas) of which she was a part and an agent, not in the exercise of her function as Ombudsperson, a public position which, although she held at the time of the acts, the truth is that it calls for maintaining good conduct as a citizen, to be honest, decent, moral, as a public figure in her private sphere, and in that she did fail gravely as was set out in the section on sentencing; but, not for this reason can it be said that in that private, personal, even family sphere (since the three corporations also belong to her relatives) she must act with a duty of probity, since she is no longer within any public institution, she is not directing any public official, she is not making decisions that impact the institution where she works (Office of the Ombudsperson), but rather she becomes a citizen like everyone else; which is why the assessments and consequently the conclusion maintained by the expert in their report, as well as what was stated in the debate, are erroneous. / In addition to the above, it has been made abundantly clear that </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">what was violated was PUBLIC FAITH as the protected legal interest </span><span style=\"font-family:Arial; font-style:italic\">(see considerando on legal classification)</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">, not the duty of probity </span><span style=\"font-family:Arial; font-style:italic\">such that the civil plaintiff's thesis that the alleged social harm was produced, by affecting the image and trust that the people had in said representation, in said public institution, can be accepted" </span><span style=\"font-family:Arial\">(pp. 262 and 263, emphasis from the original). As can be seen, the underlying argument is that the criminal activity of the ombudsperson, carried out within her private life, cannot cause social harm; that only when she commits a crime in the exercise of her functions and violating her duty of probity, is there a possibility of causing harm of that nature. In other words, the opinion of the judging body is not simply that, in light of the proven facts, the ombudsperson's conduct did not cause harm to society, but rather that, due to the nature of the acts, that harm is not possible. This Chamber does not share that criterion. From when it submitted the civil action brief, the Office of the Attorney General of the Republic noted that </span><span style=\"font-family:Arial; font-style:italic\">"It is undeniable that the acts sued here constitute acts of corruption which, in addition to the direct harm they may have caused to the public treasury, have caused social harm, due to the decrease in credibility in public officials, which is claimed here through the filing of this Civil Compensation Action in accordance with the provisions of Article 38 of the same legal body" </span><span style=\"font-family:Arial\">(civil action uploaded to the virtual desktop on November 30, 2016, p. 30). Therefore, one must ask: can the commission of thirty-two crimes of use of a forgery —or twenty-nine, if the annulments ordered here are taken into account— by the Ombudsperson, within the framework of coordinated and structured criminal activity over several years, undermine the credibility of that institution? The answer is affirmative. Firstly, because the very Law of the Office of the Ombudsperson of the Republic considers the moral quality of the person who is to hold its leadership essential. Article 4 of that law states that </span><span style=\"font-family:Arial; font-style:italic\">"Any Costa Rican person who is in the exercise of their civil and political rights, who is over thirty years old, </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">with recognized moral solvency</span><span style=\"font-family:Arial; font-style:italic\"> and professional prestige, may be appointed Ombudsperson of the Republic […]". </span><span style=\"font-family:Arial\">Note that this is an "entry requirement," a prior condition to aspire to the position of Ombudsperson; the individual must have shown evidence of possessing that moral solvency, even before becoming part of the institution. One who seeks to hold the position cannot claim that their prior behavior, not having been carried out in the exercise of their functions, is irrelevant; it is a requirement inherent to the position. It could not be otherwise, considering the function of that body. Article 2 of its law describes its general attribution as follows: </span><span style=\"font-family:Arial; font-style:italic\">"The Office of the Ombudsperson of the Republic is the body responsible for protecting the rights and interests of the inhabitants. / This body shall ensure that the functioning of the public sector conforms to morality, justice, the Political Constitution, the laws, the agreements, treaties, pacts signed by the Government, and the general principles of Law. Furthermore, it shall promote and disseminate the rights of the inhabitants."</span><span style=\"font-family:Arial\"> How could a hierarch with serious questions in that area ensure morality in the functioning of the public sector? This is further reinforced by what is indicated in numeral 6 of the referenced law, which states: </span><span style=\"font-family:Arial; font-style:italic\">"The Ombudsperson of the Republic shall cease in their functions for any of the following causes: / […] d) Having been convicted, in a final judgment, for an intentional crime". </span><span style=\"font-family:Arial\">The condition of being a criminal, with intent, is absolutely incompatible with that of ombudsperson, regardless of whether the crime was committed, or not, as part of the exercise of the position. This is not merely a legal requirement, however well-conceived. In reality, the honorability of the ombudsperson is fundamental for the fulfillment of the duties of the Office of the Ombudsperson, since the powers attributed to it by law are merely investigative and reporting in nature (articles 12 to 14 of the cited regulation); the Ombudsperson only exercises a moral magistracy. Lacking the required moral weight, which is built in the face of the citizenry, institutional strength weakens and the fulfillment of its function is hindered. If citizens come to consider that the Ombudsperson has inappropriate moral behavior in their business dealings and engages in systematic criminal acts, in collusion with third parties, the effectiveness of the institution in our society can be severely affected. For all the above, this appellate chamber cannot share the basic assumption that the trial court assumed to reject the social harm. The intentional criminal behavior of the ombudsperson, verified in their private sphere, can indeed generate harm to the institution and, consequently, affect society. It must be clear that the court is not prejudging the merits of the claim in question, which would involve the analysis of the evidence in the specific case, a matter of the exclusive competence of the trial court; it is simply stating that the fundamental premise from which the lower court (a quo) started is mistaken, which justifies the annulment ordered.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:justify; line-height:150%\"><span style=\"width:36pt; display:inline-block\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\">XV.- </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Dissenting Vote of Judge González González</span><span style=\"font-family:Arial\">. </span><span style=\"font-family:Arial; font-weight:bold\">The first ground of challenge by attorney Fabio Oconitrillo Tenorio and attorney Gloriana Jiménez Rey, in their capacity as defense attorneys for the defendant [Name1]</span><span style=\"font-family:Arial; font-weight:bold; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; font-weight:bold\">, and the third ground of challenge of the appeal against the judgment filed by the accused [Name1]</span><span style=\"font-family:Arial; font-weight:bold; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; font-weight:bold\">, under the legal sponsorship of Dr. Javier LLobet Rodríguez, are granted. Consequently, [Name1]</span><span style=\"font-family:Arial; font-weight:bold; -aw-import:spaces\">&#xa0;&#xa0; </span><span style=\"font-family:Arial; font-weight:bold\">is acquitted of thirty-two crimes of use of a forgery attributed to her to the detriment of public faith. As a result of this decision, the lifting of the precautionary measures ordered against [Name1] is ordered. </span><span style=\"font-family:Arial; font-weight:bold\">On the merits: </span><span style=\"font-family:Arial\">With respect for the majority vote subscribed by Judges Mena Artavia and Araya Vega, I concur in issuing a dissenting vote, in summary, because I consider that in the case at hand (sub judice) the tax regulations (Code of Tax Rules and Procedures) were applicable, due to their speciality, and not the general ones (Penal Code), in relation to the issue of the documentary falsehoods the defendant is accused of committing. Thus, the unavoidable correlation was Articles 66, 67, 70, 81, 89 and 92 of the Code of Tax Rules and Procedures (hereinafter [Name27]), Law N˚ 4755, with numerals 23, 368 and 372 of the Penal Code, to conclude that we are facing an apparent concurrence of rules when, to defraud the public treasury (an unlawful tax act that can be classified as an administrative infraction or a tax crime, depending on the amount of the defrauded quota), the mendacity falls on the content of the self-assessment declaration of events generating a tax obligation (falsehood of content in a private document), which is then presented to the Tax Administration by the taxpayer (use of a false private document). Thus, it is appropriate to cite that Article 65 of the C.N.P.T. establishes that unlawful acts are one and that, depending on whether they are classified as administrative infractions or tax crimes, they will be heard by the Tax Administration or the Judicial Branch. However, always under the understanding that the taxpayer cannot be sanctioned for the same unlawful tax act on more than one occasion, whether with the same basis and for the same acts (double ruling against a single charge), as a guarantee of legal certainty provided by the principle of double jeopardy (non bis in ídem). Article 66 of the C.N.P.T. provides as follows: “</span><span style=\"font-family:Arial; font-style:italic\">Verification of unlawful tax acts The verification of unlawful tax acts shall respect the principle \"non bis in idem\", in accordance with the following rules: a) In cases where the infractions may constitute tax crimes, the Administration shall transfer the matter to the competent jurisdiction, according to Article 89, and shall refrain from following the sanctioning procedure while the judicial authority does not issue a final judgment. The sanction of the judicial authority shall exclude the imposition of an administrative sanction for the same acts. // Should the existence of the crime not have been deemed proven, the Administration shall continue the sanctioning file based on the facts considered as proven by the courts. b) In cases where the Tax Administration has already established a sanction, this shall not prevent initiating and developing the judicial action. However, if this results in a conviction of the subject, the infractions that can be considered preparatory acts for the crime, whether actions or omissions included in the criminal type, shall be understood to be subsumed in the crime. Therefore, the administrative sanctions imposed must be revoked, if their nature permits it</span><span style=\"font-family:Arial\">”. This principle, although concerning a different unlawful tax act than the one being heard here (closure of premises), was developed by the Constitutional Chamber (Sala Constitución) when it held: “</span><span style=\"font-family:Arial; font-style:italic\">VII.- Non bis in idem.</span><span style=\"font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">Another important topic regarding the closure, and perhaps one of the most complex, is that of respect for this principle and its application when there is a concurrence of infractions. The</span><span style=\"font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">non bis in idem, safeguarded in Article 42 of our Political Constitution, </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">seeks to avoid double sanctioning for the same act; thus, it would be violated when, as a consequence of carrying out a single act, a duplication of sanctions is imposed on the person responsible for it</span><span style=\"font-family:Arial; font-style:italic\">. Doctrine has assigned it the following consequences: firstly, the prohibition of sanctioning criminally and administratively for the same acts; secondly, the preference of criminal proceedings over administrative ones, in the sense that the procedure initiated in the criminal venue prevents any subsequent one; and, thirdly, the duty of the Administration to respect the factual framework analyzed by the Courts. These consequences derive from the auxiliary and delegated character that administrative sanctioning powers have with respect to the Judicial Branch, since, given the differences between Administration and Jurisdiction and the constitutional subjection of the former to the latter, the priority of the Courts when hearing acts susceptible to a dual classification is entirely logical. For the violation of this principle, we must be facing the same act sanctioned doubly, understood as identity of the subject, act, and basis, requirements for whose verification there are problems because, in some cases, a single act can harm different interests, protected in different norms and constituting several crimes or infractions, thereby giving rise to several sanctions without violating any principle. Doctrine indicates that no</span><span style=\"font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">bis in idem</span><span style=\"font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">exists when two independent results have arisen from the same act correctable by different entities or susceptible to being integrated into concurrent but differentiated legal spheres or categories, allowing for different but simultaneous aspects of liability. In these cases, these are matters of a different nature, which is why we speak of an ideal concurrence. This naturally presupposes a single act that violates various legal provisions, with the basic characteristic that these are not mutually exclusive. It must be understood that no violation of</span><span style=\"font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">non bis in idem</span><span style=\"font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">occurs if the sanctions are accumulated totally or partially, precisely because there is no identity of basis. The contrary is the case of an apparent concurrence of rules which requires the prevalence of one of the provisions, determining the non-application of the others, in which case, if the sanctions are accumulated, a violation does occur” </span><span style=\"font-family:Arial\">(Resolution N˚</span><span>&#xa0;</span><span style=\"font-family:Arial\">2000-08191 of 15:03 hours, of September 13, 2000. The emphasis is supplied). As can be deduced from the cited norms and the mentioned jurisprudence, there is no qualitative criterion between administrative infractions and tax crimes, as both are classified as “</span><span style=\"font-family:Arial; font-style:italic\">unlawful tax acts</span><span style=\"font-family:Arial\">”, but rather a formal difference, under the understanding that the administrative unlawful act also encloses in itself an ethical-social devaluative judgment which, due to its lesser severity (taking into account its amount as an evaluative criterion, according to Article 81 and 92 of the C.N.P.T.), carries an administrative sanction and not a criminal one. Added to this, since there is no difference in the protected legal interest, the public treasury, the decision seems correct, as a matter of criminal policy, to regulate and protect by criminal law only essential interests and to protect by administrative law the injuries that, as a consequence of the defrauding, affect the interests of the State with lesser intensity, under the protection of the principle of minimum intervention and last resort (ultima ratio). It is in this context that the unlawful tax act called “</span><span style=\"font-family:Arial; font-style:italic\">material infractions due to omission, inaccuracy, or due to improper request for compensation or refund, or for obtaining improper refunds</span><span style=\"font-family:Arial\">”, described in Article 81 of the C.N.P.T., and the crime of fraud against the public treasury, provided for in numeral 92 thereof (ibídem), are situated. Of course, in relation to the active and omissive willful conduct aimed at defrauding the public treasury, insofar as numeral 81 also includes negligent conduct or, even, conduct under error (which are not being analyzed in the specific case). In this order, according to the cited norm, the following constitute tax infractions, and are sanctioned with a fine, among other conduct: “</span><span style=\"font-family:Arial; font-style:italic\">1. […] b) </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">Presenting inaccurate self-assessment declarations</span><span style=\"font-family:Arial; font-style:italic\">. This infraction is configured when taxpayers fail to enter, within the legally established deadlines, the corresponding tax quotas, through the presentation of inaccurate self-assessment declarations. For these purposes, inaccuracy shall be understood as: i. </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">The use of false data</span><span style=\"font-family:Arial; font-style:italic\">, incomplete or inaccurate, </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">from which a lower tax or a lower balance payable or a higher balance in favor of the taxpayer or responsible party is derived</span><span style=\"font-family:Arial; font-style:italic\">. ii. The arithmetic differences contained in the declarations presented by the taxpayers. These differences occur when, upon performing any arithmetic operation, an incorrect value results or rates different from those legally established are applied, implying, in either case, lower tax values or higher balances in favor than those that should have corresponded. iii. In the case of the declaration of withholdings at source, the omission of some or all of the withholdings that should have been made, or those made and not declared, or those declared for a lower value than corresponds. // The basis for the sanction shall be the difference between the amount settled in the ex officio determination and the amount self-assessed in the taxpayer's declaration. […] 3. Applicable sanctions. The material infractions described in sub-paragraphs a), b), c) and d) of paragraph 1 of this article shall be sanctioned with a pecuniary fine of fifty percent (50%) on the corresponding basis of the sanction. // For all the above infractions that could be classified as serious or very serious, as described below, </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">and provided that the basis of the sanction is equal to or less than the equivalent of five hundred base salaries</span><span style=\"font-family:Arial; font-style:italic\">, the sanctions established for each case shall be applied: […] b) Those infractions in which fraudulent means have been used shall be classified as very serious, meaning by such: i. Substantial anomalies in the accounting and in the books or records established by tax regulations. The following are considered substantial anomalies: the absolute breach of the obligation to keep accounting or the books or records established by tax regulations; keeping different sets of accounts which, referring to the same activity and fiscal year, do not allow the true situation of the company to be known; keeping account books or the books or records established by tax regulations incorrectly,</span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\"> through the falsehood of entries, records or amounts, or accounting in incorrect accounts in such a way that their tax consideration is altered</span><span style=\"font-family:Arial; font-style:italic\">. The application of this last circumstance shall require that the incidence of keeping the books or records incorrectly represents a percentage greater than fifty percent (50%) of the basis of the sanction. ii. </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">The use of invoices, receipts or other false or falsified documents</span><span style=\"font-family:Arial; font-style:italic\">, provided that the incidence of the false or falsified documents or supports represents a percentage greater than ten percent (10%) of the basis of the sanction. iii</span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">. The use of intermediary persons or entities when the offending subject, with the purpose of concealing their identity, has made the ownership of the goods or rights appear in the name of a third party, with or without their consent</span><span style=\"font-family:Arial; font-style:italic\">, the obtaining of the rents or capital gains or the carrying out of operations with tax significance from which the tax obligation is derived, whose non-compliance constitutes the infraction being sanctioned. // When the infraction is classified as very serious, a sanction of one hundred fifty percent (150%) shall be imposed on the totality of the basis of the sanction that corresponds”</span><span style=\"font-family:Arial\"> (The highlighting is our own). As can be seen, the action of “</span><span style=\"font-family:Arial; font-style:italic\">use of false data</span><span style=\"font-family:Arial\">”, necessarily entails willful conduct aimed at deceiving or defrauding the public treasury, insofar as it requires knowledge that the data are not true and that, with its use (will of the agent), “</span><span style=\"font-family:Arial; font-style:italic\">a lower tax or a lower balance payable or a higher balance in favor of the taxpayer or responsible party</span><span style=\"font-family:Arial\">” will be produced. Even more, those infractions in which “</span><span style=\"font-family:Arial; font-style:italic\">The use of invoices, receipts or other false or falsified documents</span><span style=\"font-family:Arial\">” or “</span><span style=\"font-family:Arial; font-style:italic\">The use of intermediary persons or entities</span><span style=\"font-family:Arial\">” are determined are classified as very serious, when they are used to conceal from the Tax Administration their condition as taxpayer of the tax obligation, making appear (which is no other way of inducing the public treasury into error) “</span><span style=\"font-family:Arial; font-style:italic\">…in the name of a third party, with or without their consent</span><span style=\"font-family:Arial\">”, the ownership over: </span><span style=\"font-family:Arial; font-style:italic\">i)</span><span style=\"font-family:Arial\"> goods or rights, </span><span style=\"font-family:Arial; font-style:italic\">ii)</span><span style=\"font-family:Arial\"> the obtaining of rents or capital gains and, </span><span style=\"font-family:Arial; font-style:italic\">iii)</span><span style=\"font-family:Arial\"> the carrying out of operations with tax significance. As a corollary, what was stated by the lower court (a quo), that the rule of Article 81 of the C.N.P.T. only refers to accounting or material errors that occur in the self-assessments classified as inaccurate, is incorrect, as it contravenes the literalness and grammar of the rule and, as will be set out below, its teleological interpretation. In this sense, it cannot be overlooked that the cited rule was modified by Article 1° of Law N° 9069 of September 10, 2012, \"</span><span style=\"font-family:Arial; font-style:italic\">Law for the Strengthening of Tax Management</span><span style=\"font-family:Arial\">\", therefore, </span><span style=\"font-family:Arial; font-style:italic\">at first sight (prima facie)</span><span style=\"font-family:Arial\">, in adherence to the principle of non-retroactivity of the law and the application of penal law over time (Article 11 of the Penal Code), this reform would only be applicable to the conduct carried out through the self-assessments for income tax that were presented in the fiscal periods of 2012 and 2013; while its previous wording applied to the events carried out through the self-assessments of the periods 2009, 2010 and 2011. Nonetheless, the normative description of Article 81 of the C.N.P.T. in force for these latter fiscal periods was not very different, and, in one or the other, the wrong from deceptive conduct carried out to the detriment of the public treasury was always maintained. Note that, according to the reform this numeral underwent by Article 2˚ of Law N˚ 7900 of August 3, 1999, the presentation of inaccurate declarations for “</span><span style=\"font-family:Arial; font-style:italic\">the use of false data […] from which a lower tax or a lower balance payable or a higher balance in favor of the taxpayer or responsible party is derived</span><span style=\"font-family:Arial\">” was always sanctioned. It likewise established that this was a type of deception of the Tax Administration, but that it would only be sanctioned (administratively), if the amount that was established at that time was exceeded. The aforementioned article describes it as follows: “</span><span style=\"font-family:Arial; font-style:italic\">In the cases described in this article where the Tax Administration </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">determines that it has been induced into error</span><span style=\"font-family:Arial; font-style:italic\">, through simulation of data, deformation or concealment of true information or any other suitable form of deceit, for an amount </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">less than two hundred base salaries</span><span style=\"font-family:Arial; font-style:italic\">, the sanction shall be seventy-five percent (75%)</span><span style=\"font-family:Arial\">” (The emphasis is supplied).

As a corollary, it cannot be denied that with either wording of Article 81 of the C.N.P.T., according to the legal reforms it underwent within the period in which the taxable event (hecho generador tributario) occurred (before and after the year 2012), the same purpose of the tax rule has always been maintained, which is to differentiate the administrative wrong from the criminal wrong based on the economic amount derived from the defraudation. This is so because Article 92 of the C.N.P.T., which was in force from August 3, 1999 (Law N˚ 7900) until September 10, 2012 (Law N˚ 9069), provided: "*Inducing error in the Tax Administration. // When the amount of the defrauded sum exceeds two hundred base salaries, whoever induces error in the Tax Administration, through data simulation, deformation or concealment of truthful information or any other form of deception suitable to induce it into error, with the purpose of obtaining, for oneself or for a third party, a patrimonial benefit, an exemption or a refund to the detriment of the Public Treasury, shall be punished with five to ten years of imprisonment. // For the purposes of the provisions of the preceding paragraph, it should be understood that: a) The defrauded amount shall not include interest, fines, or punitive surcharges. b) To determine the mentioned amount, if it involves taxes whose period is annual, the quota defrauded in that period shall be considered; for taxes whose periods are less than twelve months, the amounts defrauded during the period between January 1 and December 31 of the same year shall be added. // For other taxes, the amount shall be understood as referring to each of the concepts for which a taxable event (hecho generador) is susceptible to determination. // It shall be considered an absolutory legal excuse if the subject repairs their non-compliance, without any requirement or action by the Tax Administration to obtain the repair. For the purposes of the preceding paragraph, an action by the Administration shall be understood as any action carried out with the notification to the taxpayer (sujeto pasivo), aimed at verifying compliance with the tax obligations related to the tax and period in question*" (Highlighting is ours). As can be seen, just as Article 81 of the C.N.P.T. did, it punished whoever induced error in the Tax Administration, among these, by data simulation or any other form of deception (within which the inclusion of false data in self-assessment tax returns cannot be excluded), with the purpose or aim of obtaining a patrimonial benefit—whether for oneself or for a third party. Likewise, in line with Article 81 C.N.P.T., Article 92 (in force for the fiscal periods accused of being defrauded, years 2009, 2010, and 2011) provided that the tax wrong would only be considered a crime, and not an administrative infraction, when it exceeded the economic *quantum* established for such purposes—two hundred base salaries at that time. This criminal wrong did not vary with the reform to the cited Article 92, carried out by Article 1 of Law N° 9069 of September 10, 2012, "*Ley de Fortalecimiento de la Gestión Tributaria*", which provides: "*Fraud against the Public Treasury. // Whoever, by action or omission, defrauds the Public Treasury with the purpose of obtaining, for oneself or for a third party, a patrimonial benefit, evading the payment of taxes, amounts withheld or that should have been withheld, or payments on account of in-kind compensation or unduly obtaining refunds or enjoying tax benefits in the same manner, provided that the amount of the defrauded quota, the amount not paid in from withholdings or payments on account, or the refunds or tax benefits unduly obtained or enjoyed exceeds five hundred base salaries, shall be punished with a prison term of five to ten years. // For the purposes of the provisions of the preceding paragraph, it should be understood that: a) The amount of five hundred base salaries shall be considered an objective condition of punishability. b) The amount shall not include interest, fines, or punitive surcharges. c) To determine the mentioned amount, if it involves periodic taxes, withholdings, payments on account, or refunds, or those requiring periodic declaration, the amount defrauded in each tax or declaration period shall be considered, and if these are less than twelve months, the amount defrauded shall refer to the calendar year. In other cases, the amount shall be understood as referring to each of the different concepts for which a taxable event (hecho imponible) is susceptible to settlement. // It shall be considered an absolutory legal excuse if the subject repairs their non-compliance, without any requirement or action by the Tax Administration to obtain the repair. // For the purposes of the preceding paragraph, an action by the Administration shall be understood as any action carried out with the notification to the taxpayer (sujeto pasivo), aimed at verifying compliance with the tax obligations*" (The emphasis is supplied). In this case, upon reviewing the etymological content of the term "*defraudar*" it is specified as: "*1. tr. To deprive someone, with abuse of their trust or with infidelity to one's own obligations, of what is rightfully theirs. 2. tr. To frustrate, dissipate the trust or hope placed in someone or something. 3. tr. To elude or evade the payment of taxes or contributions*" (REAL ACADEMIA ESPAÑOLA: *Diccionario de la lengua española*, 23rd ed., [version 23.3 online]. https://dle.rae.es. Retrieved on November 17, 2020. Similarly, for the cited Dictionary, "*burlar*" is defined as "*2. tr. engañar (to induce someone to believe as true what is not)*". Through these different definitions, it can be concluded that the content of the illicit action in Article 92 of the Código de Normas y Procedimientos Tributarios is similar to that of the repealed numeral 92 of that same legal body and, in turn, to part of the administrative illicit conduct described in Article 81 of the C.N.P.T., since in all of them the conduct of inducing error in the Tax Administration with the purpose of obtaining, for oneself or for a third party, a patrimonial benefit, to the detriment of the public treasury, prevails. Thus, as the Constitutional Chamber has held, a criterion shared by the author of this dissenting vote: *“…ordinal 81 and 92 of the Código de Normas y Procedimientos Tributarios, respond to a different legal nature and faults, one of an administrative type and the other of a criminal nature. Particularly, it should be noted that, despite the fact that both articles contain, within some part of their factual description, that the tax administration has been induced into error “through data simulation, deformation or concealment of truthful information or any other suitable form of deception,” the truth is that, on the other hand, there is an essential difference between them in terms of their regulation […], which lies precisely in the determination of the economic quantum that is derived from the error or defraudation, which, in turn, is calculated with respect to the base salaries referred to in the preceding recital and on which, it was clarified, this Chamber will not issue any criterion”* (cf. Resolution N˚ 2015-10498 of 09:43 hours, of July 15, 2015). In other words, the two rules coincide in that both sanction the illicit conduct of inducing error in the administration, yet the application of one or the other responds to the legal nature of whether it is administrative or criminal, based on the amount defrauded. It is clear, for the constitutional court and for the author of this dissenting vote, in this factual scenario, that the competence of the administrative or criminal venue does not obey qualitative criteria, but rather a formal one or one of criminal policy, as set forth *supra* and, therefore, the economic *quantum* is of utmost importance, being considered by the legislator as “*an objective condition of punishability*” (an aspect that will be dealt with *infra*). Added to this, according to Article 120 C.N.P.T., in our environment the principle of self-assessment (autoliquidación) of the tax obligation governs, which consists of the taxpayer voluntarily liquidating what must be paid for taxes, once the taxable event (hecho generador) is configured and verified. So that this self-determination must be carried out *“…in accordance with the sworn declarations presented by taxpayers and responsible parties within the time and conditions established by the Tax Administration […] A sworn declaration must be understood as the determination of the tax obligation made by taxpayers and responsible parties, under oath, in the means alluded to in the preceding paragraphs, with the effects and responsibilities determined by this Code*” (Article 122 *ibídem*). Furthermore, these *“…are presumed to be a faithful reflection of the truth and hold the declarant responsible for the taxes resulting from them, as well as for the accuracy of the other data contained in such declarations […] *” (Article 130 *ibíd*.). Under this guidance, it is verified that tax rules do not make an express reference as to whether such self-assessment documents are public or private. However, resorting to the literal wording of the cited articles, and the definition of documents provided in the Código Procesal Civil, those can be classified as private. In this order, the law uses an exclusion method to qualify documents, understanding that *private documents* are those that “*…do not have the status of public*”, and that *public documents* are “*…all those drafted or issued by public officials, according to the required forms and within the limit of their powers, and those classified with that character by law. Those granted abroad with that character by virtue of treaties, international conventions, or international law shall also have that nature. In the absence of a written rule, such documents must meet the requirements of the legal system where they were granted. // The document granted by the parties before a notary public attests not only to the existence of the agreement or provision for which it was granted, but also to the previous facts or legal acts related therein, in simply enunciative terms, provided that the enunciation is directly linked to the principal agreement or provision. // Reproductions of documents shall have the evidentiary efficacy of these, if the authorizing official certifies the reason for being faithful copies of the originals. The same efficacy shall apply to simple copies, whose authenticity has not been timely challenged*” (Article 45 subsections 2 and 3 of the Código Procesal Civil, Law N˚ 9342 of February 3, 2016). In this sense, a tax self-assessment is not issued by a public official within the framework of their duties; on the contrary, no matter how much it is completed on a form provided by the State (physical or electronic), it is the taxpayer themselves or the other responsible parties who issue its materiality and content. Nor does the law, as set forth *supra*, classify it as such. Without ceasing to mention that, obviously, they are not documents granted by virtue of international instruments or drawn up before a notary public. Therefore, the use of false data in a tax self-assessment will affect the content of a private document and, as such, said conduct is described in both Article 81 and Article 92 of the C.N.P.T. as means used to succeed in inducing error in the Tax Administration in pursuit of obtaining a benefit to the detriment of the public treasury. This becomes relevant, according to the factual picture that was charged and taken as proven, and to the claims of the technical and material defense, regarding the existence of an apparent concurrence of norms (concurso aparente de normas) between the tax illicit acts and the illicit act of use of a false document described in Article 372 of the Criminal Code, for which [Nombre1] was convicted. The trial court took as proven, among other more specific events, that: "*5. By virtue of the foregoing, the accused [Nombre1], as representative and member of the Board of Directors of the companies described above [Sociedad Anónima Edificio ADROFER, Consultoría ORS y Asociados Sociedad Anónima e Inversiones BEYOF Sociedad Anónima], devised a criminal plan to benefit patrimonially through her companies by means of lower payment of taxes, which she achieved by including false data in declarations before the Dirección General de Tributación del Ministerio de Hacienda. To do so, she also usurped the identity of the victim [Nombre5], for which she had the collaboration and active participation of the person known in life as [Nombre6], who served during the period under investigation as an accounting assistant, a trusted person of Mrs. [Nombre1]. In this way, in the fiscal periods between the year 2009 and the year 2013, the accused [Nombre1], included false data in the official forms of the Dirección General de Tributación del Ministerio de Hacienda, for the Annual Declaration of Clients, Suppliers and Specific Expenses (Form D 151) and the Sworn Declaration of Income Tax (Form D 101) of the companies Inversiones BEYOF S.A., Edificio ADROFER S.A. and Consultoría ORS y Asociados S.A. In said documents, the accused falsely stated that the victim [Nombre5] provided professional services to the indicated companies, by virtue of which fees were paid that were classified as company expenses and therefore reduced the taxable base of the taxes they had to pay. Similarly, the accused [Nombre1], in the successive fiscal periods from the year 2009 to the year 2013, included false data in the official forms of the Dirección General de Tributación del Ministerio de Hacienda, for the Annual Declaration of Clients, Suppliers and Specific Expenses (Form D151) and the Sworn Declaration of Income Tax (Form D101) of the victim [Nombre5], falsely stating that said victim provided professional services to the indicated companies, by virtue of which fees were paid*” (cf. judgment file, pages 105 and 106). As can be inferred, the use of false data about the payments for professional services made by the companies represented by the defendant (which include the insertion of such fact in the self-assessments of their own income tax, as well as the use of individuals for the purpose of concealing her identity as the taxpayer (sujeto pasivo) obligated for the tax), was executed by the defendant [Nombre1] as a means to achieve the proposed end, which was to succeed in inducing error in the Tax Administration and to procure a patrimonial benefit by reducing the tax burden and the payment of the income tax. This is how the lower court understood it, when resolving: *“The actions concur materially, in total false data were inserted in thirty-two documents, which determines their falsity, of which the defendant [Nombre1] had full knowledge, specifically of the false content, as they corresponded to an artful machination to distort reality in order to benefit the companies and harm the Public Treasury, that is, deceptive acts motivated by the desire for unjust profit were executed, with which the tax supervision bodies were induced into error and produced harm to the Public Treasury, because finally, although a tax determination or assessment has not been made, the truth is that less tax was declared, which arises as a logical and inescapable consequence, since the actions led to a decrease in gross income and the consequent decrease in the tax burden. This generated affectation is, in turn, a direct consequence of the error into which the recipient of the operations was induced, being the institution that by law is responsible for the control, verification and inspection of tax obligations, by making it believe that payments for professional services had been verified to Mrs. [Nombre5]*” (cf. folio 131. The highlighting is supplied). There is no doubt for this jurisdictional body that the defendant, in authentic forms, as they were those supplied by the Tax Administration (whether physical or electronic), by herself or through an intermediary, used false content in self-assessment declarations. Just as it classified these as “*deceptive acts*” as they resulted from an “*artful machination to distort reality*”, that “*induced the tax supervision bodies into error*”, which finally “*produced harm to the Public Treasury*” and succeeded in benefiting the companies of the accused. This, precisely, is the typical conduct described in Article 92 of the Código de Normas y Procedimientos Tributarios (before and after the reform carried out by Article 1 of Law N° 9069 of September 10, 2012, "*Ley de Fortalecimiento de la Gestión Tributaria*"), and in turn, as has been noted in this dissenting vote, that described in Article 81 of the same legal body. Therefore, the determination of the economic *quantum* defrauded was essential, in order to establish whether one was facing a tax infraction or a tax crime. The judging body itself recognized this when stating: *“Certainly, the crime of "Fraud against the Public Treasury" provided for in Article 92 of the Código de Normas y Procedimientos Tributarios was not charged, which is a Tax Defraudation, a criminal type of a special nature, which was ruled out in the preparatory investigation by the Public Ministry, because this criminal type establishes within the objective elements, that the amount of the defrauded quota must exceed five hundred base salaries. However, what has been indicated so far makes it evident that, as material actions, it is not possible to distinguish between the use of a false document and the deception aimed at obtaining a patrimonial benefit, in this case there is a single action from a natural or physical point of view. Added to the above is not only the need for the ruling to be correctly based for a better understanding of the behaviors carried out by the accused, particularly in a case such as the one at hand, where the use of the false document is precisely the means used by the agent to perpetrate the deception and the consequent induction of error in the tax authority*” (cf. judgment document, pages 131 to 132. The emphasis is ours). From the previous extract, the conclusions reached by the lower court can be seen: **i)** That we are facing a tax illicit act for defraudation, which does not qualify as a crime because it does not exceed five hundred base salaries and this is an objective element of the criminal type; **ii)** The use of false documents (the mendacity in the content of the self-assessments) is the means used by the agent to perpetrate the deception and induction of error in the Tax Administration and; **iii)** There is a single action, since it is impossible to distinguish between the documentary falsity and the deception carried out to procure the patrimonial benefit. Regarding the first of the affirmations, the lower court errs in considering that the amount of the fraud is an objective element of the criminal type. On the contrary, from a reading of Article 92 of the C.N.P.T. (before the reform carried out in the year 2012), it could be understood that the expression: “*When the amount of the defrauded sum exceeds two hundred base salaries, whoever induces error in the Tax Administration […] shall be punished with five to ten years of imprisonment*” referred to an objective condition of punishability, and not an objective element of the criminal type. This became clearer, when after the reform of that numeral through Law N° 9069, of September 10, 2012, which increased the amount from two hundred to five hundred base salaries, the legislator carried out an authentic interpretation, stating that: *“…For the purposes of the provisions of the preceding paragraph, it should be understood that: a) The amount of five hundred base salaries shall be considered an objective condition of punishability. […] *”.

In this way, beyond whether or not one agrees that the defrauded economic quantum corresponds to an objective condition of punishability or is an objective element of the criminal offense (the result), the truth is that Costa Rican law opted for the former, and according to this thesis, any conduct defrauding the Public Treasury (hacienda pública) must be considered typical, unlawful, and culpable, even if it does not exceed the mentioned amount of five hundred base salaries. This is because, although the criminal relevance of a behavior depends on the wrongfulness of the conduct performed, there may be criminal policy considerations that affect the advisability of punishing such conduct, as in this case, when the fraudulent result against the Public Treasury does not exceed a specific amount. Thus, it is understood that: "Penalty or punishability is, therefore, a way of collecting and elaborating a series of elements or prerequisites that the legislator, for utilitarian reasons, diverse in each case and alien to the proper aims of Criminal Law, may require to justify or exclude the imposition of a penalty and which only have in common that they belong neither to the definition of the offense (tipicidad), nor to unlawfulness (antijuricidad), nor to culpability (culpabilidad), and their contingent nature, that is, they are only required in some specific crimes. [...] Objective conditions of punishability are circumstances that, without belonging to the wrongfulness or culpability, condition in a specific crime the imposition of a penalty. Since they also do not belong to the definition of the offense, it is not necessary for the author's intent to refer to them, it being irrelevant whether or not they are known to him" (Muñoz Conde and García Arán. Derecho Penal. Parte General. 8th Edition. 2010. pages 399 to 401). In summary, the thesis of the lower court (a quo), that in the case at bar (sub judice) the definition of the offense of fraud against the Public Treasury, described in Article 92 of the C.N.P.T., was not configured, nor was the criminal wrongfulness, based on the absence of a defraudation greater than five hundred base salaries, violated the principle of legality and the authentic interpretation that the legislator gave to the economic quantum as an objective condition of punishability. This is transcendental, since this was the criterion used (the atypicality of the conduct of fraud against the Public Treasury) to dismiss the defense's thesis, which maintained that the lack of proof of damage to the public treasury greater than five hundred base salaries made the defendant's conduct—of using false data in the self-assessment tax returns—only prosecutable as an administrative tax illicit act (Article 81 of the C.N.P.T.) and that the instrumental falsehoods were subsumed within the wrongfulness of the result by specialty. This under the implicit criterion in the ruling that the atypicality of the fraud against the Public Treasury left the instrumental falsehoods used as a means subsisting, which it proceeded to sanction for harming a different legal interest (public faith). First, as stated above (supra), such a decision failed to recognize that the amount is an objective condition of punishability that did not affect the criminal wrongfulness, nor the culpability of the author, and; second, although such a criterion is not entirely incorrect, since, in principle, instrumental falsehoods concerning public and authentic documents, or those treated as such (Articles 366, 365, and 370 of the Penal Code), could be in such a condition, because Article 92 of the C.N.P.T. would not exclude them as provided in Article 21 of the Penal Code [In the same sense, "Derecho Penal. Parte Especial" (Zárate et al., 2018, p. 527)]; in the specific case, the type of documents the defendant was accused of using was another, since the self-assessment tax returns are private documents, so the mendacity employed in these—in appearance—could at most constitute a crime of use of a false document of a private nature, sanctioned by Articles 368 and 372 of the Penal Code, whose wrongfulness of action is much less than that contained when public, authentic, or equivalent documents are falsified or used. The non-application of the mentioned substantive rules led the lower court (a quo) to discard the use of Article 23 of the Penal Code (apparent concurrence of rules), despite having correctly considered the documentary falsehood (concerning the use of false data in the content of the self-assessment income tax returns) as the means used to perpetrate the deception and induction of error to the Tax Administration. It even recognized that it was dealing with a single action. Of course, it must be noted that this was not a single action in a natural or physical sense as erroneously mentioned in the ruling, but in legal unity, between each of the falsehoods as a means to achieve the defraudation of the public treasury and the induction of error to the Tax Administration, which was consummated in each of the tax periods (2009, 2010, 2011, 2012, and 2013) with the damage to the Public Treasury caused by the defendant. This is because not only was the final factor—seeking the property benefit to the detriment of the public treasury—proven, but also the normative factor, since the documentary falsehoods were acts and actions aimed at deceiving the tax auditing body; they occurred in a means-to-end relationship, since they succeeded in causing a result, which meant the damage caused to the public treasury, and the phenomenological aspects (space and time) showed proximity, inasmuch as, as the court held, one of the circumstances that allowed the defendant's participation in all the events to be proven was that the self-assessment tax returns with false content (both for her companies and those of [Name28]), in each of the fiscal periods, were filed with little time difference, at the authorized service windows of the receiving body or through the electronic systems that the Tax Administration provided for that purpose. So, the use of the document containing the false information (self-assessment tax return) was consubstantial with the fraudulent action in each of the tax periods, since this was the means provided by the State for the taxpayer or responsible persons to indicate the triggering event of the tax obligation and provide the necessary information for determining the tax they had to fulfill. Without omitting that it is in these self-assessment tax returns where the legislator estimated that one could present: "The use of false, incomplete, or inaccurate data, from which a lesser tax or a lesser balance payable or a greater balance in favor of the taxpayer or responsible person is derived" (Article 81.1.b.i of the C.N.P.T.). This allows concluding, in turn, that there are units of action in each of the tax periods, between the use of the self-assessment tax returns that contained mendacious information (use of false private document) and the act of defraudation itself against the Public Treasury. Coupled with the fact that, in this type of illicit act (Article 92 of the C.N.P.T.), such falsehoods turn out to be typical accompanying acts (or co-punished acts), whose punishment does not take place autonomously, unless the mentioned crime (whose gravity is notoriously greater in relation to the penalty to be imposed, 5 to 10 years of imprisonment, compared to the other, 1 to 6 years) is not configured. This is because, as has been noted in this dissenting vote, there are many ways in which the conducts of fraud against the Public Treasury can develop, however, mendacity in the self-assessment tax returns is one of those typically described for doing so, as sanctioned in Article 81, mentioned so many times. So, since Article 368 of the Penal Code provides that the falsification of a private document requires, as an essential element for its configuration, that "harm may result" (pueda resultar perjuicio), and understanding that the falsehood of content (ideological falsehood) in a private document is indeed sanctioned in said rule (cf. Resolution No. 2020-1196 of this Sentencing Appeals Court, at 3:30 p.m. on July 22, 2020 -González González, [Address1] and [Address2]), this must redirect to the fact that the potential for harm from the use of false data in the self-assessment tax returns (which turn out to be the false documents the defendant is attributed with having used) is contained within the harm caused to the public treasury. That is, in this specific factual scenario, where the author merely fails to tell the truth in the narration of the facts that act as prerequisites for determining the tax triggering event and the tax burden to be paid (ideological falsehood in a private document), the wrongfulness of the conduct would be fully encompassed by Article 92 of the C.N.P.T. (criminal offense of greater complexity due to the protected legal interests) and the rule of absorption provided in Article 23 of the Penal Code would operate. Otherwise, not resolving the concurrence of both crimes with a concurrence of laws would imply a duplication or typological overlap when contemplating the harm, and ultimately, a double sanction. This is because the injury to the legal interest protected in the crime of defraudation against the Public Treasury not only encompasses property, as maintained in the majority ruling, but, being multi-offensive, it also indirectly covers the integrity of the economic order in a strict sense, which becomes necessary for correct economic planning of the nation and to achieve the economic and social policy goals that a social and democratic Rule of Law State is obligated to fulfill [In this sense: [Name4], El delito Fiscal. 1982, p. 210 to 211]. Likewise, the Constitutional Chamber (Sala Constitucional) affirms regarding tax crimes that in these: "In general terms [it seeks] the protection of financial activity as a collection system and of fiscal policy for the application of resources according to the best criteria of justice and equity. In specific terms, it seeks to protect the functions of 'auditing and collection' of the tax administration for collection purposes. What is protected are the auditing and verification functions, with the purpose of protecting the tax system as a fundamental source of resources for the development of state financial activity and, at the same time, to ensure the correct functioning of said system" (Resolution No. 2000-08191 at 3:03 p.m. on September 13, 2000). In the same sense, it has been stated: "Regarding crimes, Article 92 of the CNPT, when regulating the crime of tax defraudation or 'induction of error,' establishes as one of its central elements the 'harm to the Public Treasury,' from which it is easy to infer that the protected legal interest is the supra-individual property represented by the Public Treasury. The subordination of the crime to a minimum defrauded amount (200 base salaries) also implicitly carries that what is protected is said property. Now, also in this crime, due to the typical need for a trick whose victim is the Tax Administration, we can visualize the protection of a duty of truthfulness towards it and, therefore, of the tax function" ([Name7], El delito de Defraudación Tributaria. In: Ensayos sobre Derechos Penal Económico y De Empresa. Editorial Jurídica Continental. 2013. p. 562. The emphasis is supplied). In summary, the legal interest protected in both Article 81 and Article 92 of the Code of Tax Rules and Procedures (Código de Normas y Procedimientos Tributarios), besides property, is also the protection of the truthfulness of the information supplied to the Tax Administration, so that it can exercise the duty of auditing and collecting taxes (Public Treasury). According to this, and to the principle of offensiveness, the wrongfulness of the falsehood committed in the self-assessment tax return is understood to be encompassed within the crime of defraudation against the Public Treasury (criterion of consumption), so that the application of this criminal offense displaces that of the falsehood of private documents (and its corresponding use). In the specific case, this is relevant based on the fact that the trial court, although it could not specify the amount, did have proven the existence of harm to the Public Treasury, which was "several million colones" (cf. judgment file, page 218) that did not exceed the economic quantum of five hundred base salaries. In this way, facts that constitute the criminal wrongfulness of the crime of Article 92 of the Code of Tax Rules and Procedures were proven, and it was corroborated that the defendant [Name1] was culpable for them. However, a sanction could not be applied to her, since it was proven that the amount of the defraudation did not exceed five hundred base salaries (objective condition of punishability). In this sense, it is accepted that in the apparent concurrence of rules, the displaced criminal law does not disappear completely, and can have effects in certain cases, including when the primary crime is not punished, as could occur when a personal cause for exclusion of punishability arises. However, "this principle has an exception in the case of the co-punished prior act" (cf. [Name11] González, Francisco. Derecho Penal, Parte General, San José, Costa Rica, Volume I, Editorial Jurídica Continental, 2008, p. 582). Note that, in the case of the absolute legal excuse for rectifying the tax non-compliance, which is another condition of punishability, if the thesis were applied that the falsehoods in the self-assessment tax return still subsist after the crime of fraud against the Public Treasury cannot be sanctioned (thesis of the majority vote), the taxpayer should be prosecuted for having lied (falsehood of content) to the Tax Administration, when in reality, from a teleological interpretation, what the State is interested in, based on criminal policy criteria, is the regularization of the taxpayer and the recovery of the public treasury, and not the application of criminal sanctions, considering that Criminal Law is the last resort (ultima ratio). Parallel to this, it must be emphasized that the criterion of consumption used is also a version of the principle of specialty and, therefore, of the principle of legality considered jointly with the principle of proportionality. Hence, it is not valid to apply the general criminal law (use of a false document described in Article 372 of the Penal Code), when Article 89 of the C.N.P.T. establishes that "...If there are special provisions in the tax laws, these prevail over the general ones." That is, the crime of fraud against the Public Treasury prevailed over the crime of use of a false private document, and if the first could not be assigned a penalty because an objective condition of punishability was present, that did not mean that the use of false data in the self-assessment tax returns regained their autonomy, as the principal conduct, or the one in which it was consumed, was still typical, unlawful, and culpable (a crime) but not subject to penalty due to criminal policy reasons. Especially in these cases, where the special rule establishes that, if the mentioned amount is not exceeded, the appropriate course was to continue with the administrative sanctioning procedure for the subsisting tax illicit act (administrative infraction), and not to resort to the general law, one insists, because there is an express provision on that aspect. Without omitting, further, that such a procedure would also not leave the protected legal interest (the truthfulness of the information supplied to the Tax Administration) without protection, since, first, it must be kept in mind that the non-application of a criminal sanction, through the transformation of criminal illicit acts into administrative illicit acts, does not entail, per se, a lesser intimidating or afflictive effectiveness of the sanctioning system and, second, it would always be possible to recover the defrauded property and impose a legal consequence for the illicit act. Corollary, as is evident from the grounds for challenge by the technical and material defense, upon realizing that this ground for exclusion of punishability was evident from the start (ab initio) (the amount of the sum defrauded from the Public Treasury), the appropriate course would have been to analyze it beforehand to avoid reaching the formal declaration of culpability of the defendant, which now imposes on this judge the dictation in this venue of the acquittal of [Name1], since, one insists, her conduct is not subject to penalty. Otherwise, sanctioning the conducts of use of a false private document (for using false data in the self-assessment tax returns) autonomously and separately from the fraud against the Public Treasury would infringe the prohibition of double jeopardy (non bis in ídem) (Article 42 of the Political Constitution, Article 14.7 of the International Covenant on Civil and Political Rights, Article 8.4 of the American Convention on Human Rights, and 66 of the C.N.P.T.), inasmuch as said falsehoods could be sanctioned both criminally and administratively, as the majority vote suggests, which, although with respect, contradicts the principle of legality and the theory of the concurrence of crimes. This does not prevent, as provided in this dissenting vote, the Tax Administration from "...[continuing] the sanctioning file based on the facts considered by the courts as proven" (Article 66 of the C.N.P.T.), since in this case, the acquittal judgment has the same effects as one of dismissal, thus fulfilling the requirement that allows the resumption of the administrative sanctioning procedure (Articles 81 and 90 ibid.).

**On staggered deliberation.** In accordance with the provisions of Articles 361 and 465 of the Code of Criminal Procedure, this appeals chamber must deliberate to decide on the various aspects raised, reaching a decision, at least, by majority. Thus, implicitly, our procedural legislation recognizes what is known as staggered deliberation, in the sense that if a judge dissents on a specific issue, they must continue to participate in the other matters submitted for their consideration, so that the court does not disintegrate. In this deliberation model, the dissenting judge's responsibility is safeguarded by their minority vote, and thereby, their judicial independence against the majority thesis is also guaranteed. It is also verified that, given the need for the full court to resolve the other aspects submitted to the plenary of the judicial body, the dissenting judge participates in their determination, to give material content to the principles of access to justice and effective judicial protection (Article 41 of the Political Constitution). A different deliberation procedure, that is, when the dissenting judge withdraws from the deliberation as soon as they cast their vote, would cause the rest of the issues to be heard only by two judges (in clear disintegration) and, as a risk, would bring the possibility that on some topic there is a contradiction that prevents reaching a majority of votes and cause the ineffectiveness of said process, with the consequent violation of the cited principles. This type of deliberation has been recognized by this Sentencing Appeals Court, formerly known as the Criminal Cassation Court, in Resolutions No. 2009-0399 at 09:45 a.m. on April 17, 2009, No. 2010-0193 at 11:15 a.m. on February 24, 2010, and No. 2010-0444 at 3:40 p.m. on April 13, 2010. Thus, based on Articles 10 of the Civil Code and 5 of the Organic Law of the Judicial Branch (which allow interpreting rules based on legislative and jurisprudential history), this will be the method that this appeals chamber applies in this matter. Consequently, the minority vote being issued now safeguards my criteria with respect to the rest of the votes I cast unanimously with the rest of the court, when the remaining grounds for challenge are heard, since I can no longer maintain the criteria issued here in those, without disintegrating the collegiate panel of judges and ignoring that this issue was already decided by majority. This clarification is valid, to avoid mistaken interpretations that might consider it contradictory that I dissent on this issue, yet continue voting with the rest of the court on other topics that, evidently, would have another result if the minority vote were applied (e.g., the application of Article 130 of the C.N.P.T. regarding the rectification of self-assessment tax returns as an absolute legal excuse from punishment for the crime of fraud against the Public Treasury, which has no place if it is considered that the proven criminal wrongfulness is the use of a false document, as a general criminal figure, since definitively, in that context, it would have no relevance whatsoever that the accused regularizes their situation before the Tax Administration, beyond the recognition of repentance in their actions).

**XVI.- Note from Judge Araya Vega.** In the thirtieth claim of the defenders and the first ground of their challenge by the defendant [Name1], objection is made to the probative assessment by the trial court (a-quo) of the recording of a telephone call made by the aggrieved party to the accused. It was collegially determined that the recording was illegal and had to be excluded, inasmuch as what was relevant was the determination of the recipient of the information and their consent (cf. in the same sense, CSJ, S3, v. 2009-717). Now, in the specific case, although the captured communication was illegal—therefore it must be excluded from the body of evidence—the truth of the matter is that, based on the theory of risk, the conversation held between the defendant and the victim can indeed be subject to evaluative control, but through the victim's account and not the recording. No violation of the fundamental right to privacy is generated by this, inasmuch as the acknowledgments made by the defendant to the victim are ponderable based on her testimony (provided, of course, that the account was credible based on the rational parameters for assessing testimony such as subjective credibility, verisimilitude, external corroborability, and persistence of incrimination). That is, although the recording was illegal and causes its exclusion as evidence, its assessment is viable through the aggrieved person's account, since the defendant [Name1] assumed the risk by communicating with the victim and confessing the illicit act and proposing ways of correction, so that what happened would not publicly transcend due to her high position as the acting Ombudsperson (Defensora de los Habitantes). Hence, what concerns the victim's account regarding the content of said communication is valid and constitutionally admissible.- **THEREFORE:** The appeals filed by the defenders of [Name1]; by her, in her personal capacity; and by the Attorney General's Office (Procuraduría General de la República) are partially granted. The thirty-fourth and thirty-fifth grounds of the appeal filed by the defendant's defense are upheld; the first, the sixth, and, partially, the fourth ground promoted by her personally are upheld; likewise, the sole ground of the appeal by the body that acted as the State's attorney is upheld.

Consequently: **i)** the recording made by [Nombre5] of the conversation held with the accused [Nombre1] on July third, two thousand fourteen, is declared ineffective; **ii)** the sentence imposed for all the convicted acts is annulled; **iii)** the conviction is annulled in relation to declarations D-101 numbers [Identificacion8] of the year two thousand ten, from the company Inversiones Beyof Sociedad Anónima; [Identificacion10] of the year two thousand eleven, from the company Edificio Adrofer Sociedad Anónima and [Identificacion11] of the year two thousand eleven, from the company Consultoría ORS y Asociados Sociedad Anónima; **iv)** the acquittal for social harm (daño social) is annulled. The case is remanded to the trial court so that, with a new panel, it may rule in accordance with the law on the annulled issues. Judge González González issues a dissenting opinion (salva el voto) and grants the first ground of the appeal filed by the defense of the accused and the third ground of the challenge filed by her personally. Judge Araya Vega adds a note. **NOTIFÍQUESE.-** Giovanni Mena Artavia Rafael Mayid González González Alfredo Araya Vega Jueces de Apelación de Sentencia Penal Imputada: [Nombre1] Ofendido: La fe pública y otra Delito: Peculado y otros DDURANC

Resolución: 2020-1858 TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL. Segundo Circuito Judicial de San José. Goicoechea, al ser las nueve horas veinte minutos, del diecisiete de noviembre de dos mil veinte.- RECURSOS DE APELACIÓN interpuestos en la presente causa seguida contra [Nombre1] , mayor, costarricense, cédula de identidad número CED1, nacida en San José, el 4 de enero de 1949, hija de [Nombre2] y [Nombre3] , casada, pensionada, vecina de San José, Escazú, San Rafael; por el delito de USO DE DOCUMENTOS FALSOS Y OTROS, en perjuicio de LA FE PÚBLICA Y OTRO. Intervienen en la decisión los jueces Giovanni Mena Artavia, Rafael Mayid González González y Alfredo Araya Vega. Se apersonaron en esta sede el licenciado Fabio Oconitrillo Tenorio y la licenciada Gloriana Jiménez Rey, en condición de apoderados especiales judiciales de la imputada; la encartada [Nombre1] en documento autenticado por el doctor Javier Llobet Rodríguez; el licenciado Miguel Horacio Cortes Chaves, en representación de la Procuraduría General de la República y el licenciado [Nombre4] Rodríguez Ovares, en representación del Ministerio Público, Fiscalía Adjunta de Probidad, Transparencia y Anticorrupción.

RESULTANDO:

I.- Que mediante sentencia número 601-2019, de las ocho horas treinta minutos del veintinueve de agosto de dos mil veinte, el Tribunal Penal del Segundo Circuito Judicial de San José, resolvió: "POR TANTO: De conformidad con lo expuesto, artículos 39 y 41 de la Constitución Política, 8 de la Convención Americana sobre Derechos Humanos; 14 del Pacto Internacional de Derechos Civiles y Políticos; 26 de la Declaración Americana de Derechos y Deberes del Hombre; 10 y 11 de la Declaración Universal de Derechos Humanos; artículos 1, 22, 30, 31, 45, 50, 51, 71, 73, 74, 76, 103, 193 y 372 del Código Penal; artículos 1, 6, 9, 10, 12, 13, 30 inciso a, 37, 38, 40, 111 a 116, 119, 141 a 145, 175 a 178, 180 a 184, 239, 240, 244, 265 a 270, 303, 324, 340, 360 al 368 del Código Procesal Penal; 122 al 124 de las Reglas vigentes sobre Responsabilidad Civil del Código Penal de 1941; 1045 del Código Civil; 16 y 42 del Arancel de Honorarios por Servicios Profesionales de Abogacía y Notariado Decreto Ejecutivo número 36562-JP; 1 y 29 de la Ley de Registro, Secuestro y Examen de Documentos Privados número 7425; este Tribunal colegiado, por unanimidad, resuelve: 1) Se declara a [Nombre1] conocida como [Nombre1] autora única y responsable de TREINTA Y DOS DELITOS DE USO DE DOCUMENTO FALSO, cometidos en concurso material de delitos, en perjuicio de LA FE PÚBLICA y en tal carácter se le imponen TRES AÑOS DE PRISIÓN por cada delito para un total de NOVENTA Y SEIS AÑOS DE PRISIÓN; sanción que con arreglo a las reglas del concurso material de delitos se readecúa finalmente a NUEVE AÑOS DE PRISIÓN; pena que deberá descontar en el Centro Penal correspondiente conforme a los Reglamentos Penitenciarios vigentes. Por el monto de la pena impuesta no es posible reconocer ningún beneficio a la acusada. Una vez firme la presente sentencia deberá la imputada presentarse a este despacho para ponerse a la orden de Adaptación Social e iniciar con el cumplimiento de la pena. 2) En virtud de lo anterior, lo cual implica que ha variado la situación procesal de la acusada de indiciada a condenada, por ende ya no se tiene un alto grado de probabilidad sino la certeza absoluta de su participación en los hechos atribuídos, amén de que por la alta pena impuesta surge una presunción razonable de que la misma podría intentar evadir la acción de la justicia, entiéndase un peligro procesal de fuga, se le imponen las siguientes MEDIDAS CAUTELARES a la endilgada [Nombre1] : a-) impedimento de salida del país, por lo cual debe entregar su pasaporte en este despacho de forma inmediata, en el transcurso de las próximas veinticuatro horas; y b-) firmar una vez al mes en este Tribunal todos los días treinta de mes, o en su defecto el día hábil inmediato posterior, ello a partir del próximo mes de setiembre del dos mil diecinueve. Estas medidas se establecen hasta que adquiera firmeza esta sentencia. 3) También por unanimidad, este Tribunal absuelve a [Nombre1] conocida como [Nombre1] de siete delitos de USO DE DOCUMENTO FALSO y de dos delitos de COACCIÓN que se le atribuyeron como cometidos en daño de LA FE PÚBLICA, DE LA LIBERTAD DE DETERMINACIÓN y de [Nombre5] respectivamente. 4) En cuanto a la excepción de falta de legitimación interpuesta por la Defensa de las partes demandadas civiles contra la Procuraduría General de la República, estese a lo resuelto al inicio del debate. 5) Se declara PARCIALMENTE CON LUGAR la acción civil resarcitoria incoada por El Estado representado por la Procuraduría General de la República en contra de los demandados civiles EDIFICIO ADROFER S.A., INVERSIONES BEYOF S.A., CONSULTORIA ORS y ASOCIADOS S.A., y [Nombre1] conocida como [Nombre1], a quienes se les condena a pagar solidariamente el DAÑO MATERIAL causado, el cual se fija en abstracto. Sin lugar la partida liquidada por concepto de DAÑO SOCIAL. 6) Se condena parcialmente en costas por la acción civil y en forma solidaria, a las partes demandadas civiles, las cuales también se fijan en abstracto. 7) Se declara extinta la acción penal seguida en contra de la co-procesada [Nombre6] en virtud de su fallecimiento; consecuentemente, se dicta sentencia de sobreseimiento definitivo por los hechos acusados en su contra. Son los gastos de la acción penal a cargo del Estado. A la firmeza de la sentencia se ordena la destrucción de la evidencia decomisada. Una vez firme esta sentencia hágase la respectiva comunicación al Registro Judicial de Delincuentes, al Instituto de Criminología y al Juzgado de Ejecución de la Pena para lo de su cargo. Se difiere la lectura de la sentencia integral para las dieciséis horas del próximo jueves cinco de setiembre del año dos mil diecinueve.NOTIFÍQUESE MEDIANTE LECTURA.-".

II.- Que contra el anterior pronunciamiento, el licenciado Fabio Oconitrillo Tenorio y la licenciada Gloriana Jiménez Rey, en condición de apoderados especiales judiciales de la imputada; la encartada [Nombre1] en documento autenticado por el doctor Javier Llobet Rodríguez y el licenciado Miguel Horacio Cortes Chaves, en representación de la Procuraduría General de la República, interpusieron recurso de apelación.

III.- Que verificada la deliberación respectiva de conformidad con lo dispuesto por el artículo 465 del Código Procesal Penal, el Tribunal se planteó las cuestiones formuladas en el recurso de apelación.

IV.- Que en los procedimientos se han observado las prescripciones legales pertinentes.

Redacta el juez de Apelación de Sentencia Penal Mena Artavia; y,

CONSIDERANDO:

I.- El nueve de junio del dos mil veinte, a las trece horas treinta minutos, se realizó audiencia oral dentro del presente asunto, contando con la presencia de los abogados Javier Llobet Rodríguez y Fabio Oconitrillo Tenorio como defensores; [Nombre4] Rodríguez Ovares como fiscal y Miguel Cortés Chaves como representante de la Procuraduría General de la República. Integramos el tribunal en aquel momento los mismos jueces que suscribimos este fallo. En la diligencia no se evacuó prueba alguna y las partes se limitaron a sintetizar algunos de los alegatos planteados por escrito.

II.- RECURSO DE LA DEFENSA DE [Nombre1] , CONOCIDA COMO [Nombre1] . En este apartado, que comprende los considerandos del II al X, se dará respuesta, fundamentalmente, a los treinta y seis motivos que conforman el recurso de apelación formulado por la defensa de la encartada [Nombre1] . Simultáneamente, en tanto convenga al orden de los temas tratados, se conocerán también los reclamos formulados por la encartada en el recurso que presentó por separado. Cuando ello ocurra, se hará la mención expresa, para evitar confusiones. El licenciado Fabio Oconitrillo Tenorio y la licenciada Gloriana Jiménez Rey, defensores de la imputada [Nombre1] , conocida como [Nombre1] , interponen recurso de apelación contra la sentencia número 601-2019 del Tribunal Penal del Segundo Circuito Judicial de San José, de las ocho horas treinta minutos del veintinueve de agosto del dos mil diecinueve. Sostienen que en el fallo se ha dado una violación de las reglas de la sana crítica racional respecto a la valoración de la prueba, ya que la condenatoria que se recurre, por treinta y dos delitos de uso de documento falso, no derivó de una adecuada e integral valoración de la totalidad de las probanzas, especialmente del dictamen pericial 2015-1402-AED y del informe final del caso de la Dirección de Inteligencia de la Administración Tributaria. Se quejan de la ausencia de un análisis jurídico, en la sentencia bajo examen, suplido por la mera transcripción de la imputación del Ministerio Público y de la prueba. En su primer motivo de impugnación, reclaman falta de fundamentación jurídica y ausencia de análisis legal de la tesis de la defensa, en relación con el concurso aparente de normas. Afirman que el tribunal no analizó la interpretación de la defensa, de que se dio en este caso un concurso aparente de normas entre el delito de uso de documento falso y la infracción administrativa contemplada en el artículo 81 del Código de Normas y Procedimientos Tributarios. A su juicio, este es un caso de naturaleza administrativa-tributaria y no penal. El órgano juzgador solo expresó que, dentro de los supuestos de la norma tributaria, no se encontraba el caso bajo examen. Después de citar el inciso b), apartado i), del artículo 81 del Código de Normas y Procedimientos Tributarios, los impugnantes afirman que la legislación de esa materia incluye, como infracción administrativa, el empleo de datos falsos en las declaraciones, de los que deriven menores impuestos, por lo que la conducta aquí castigada encuadra dentro de ese supuesto; lo anterior —aclaran—, sin aceptar que fuera su cliente quien, personalmente, insertó, confeccionó o usó algún dato falso. Así, suponiendo que los gastos deducibles de la base imponible correspondían a servicios no otorgados, el comportamiento señalado se ajusta al citado numeral. De ahí que consideren que se está ante un concurso aparente de normas. En apoyo de su tesis, citan resoluciones del Tribunal Contencioso Administrativo, del Tribunal Fiscal Administrativo y un voto de la Sala Tercera, del que no indican el número, de las nueve horas veinte minutos del dieciocho de diciembre del dos mil quince. Consideran los impugnantes que ha de prevalecer la especialidad, ya que se está ante la inclusión de un hecho falso en una declaración-autoliquidación, que pretende dañar un patrimonio supraindividual (la hacienda pública), más no la fe pública o cualquier otro patrimonio, como sucede en el uso de documento falso; es una falsedad específica, que no afecta la fe pública, sino el erario público. En síntesis, reiteran que el tribunal no entró a analizar el concurso. En el tercer reproche del recurso de apelación que interpone la encartada en forma personal (impugnación a la que se dedicará un apartado independiente más adelante), se alega falta de fundamentación de la condena, en relación con la aplicación del artículo 81 inciso b) del Código de Normas y Procedimientos Tributarios. Alega quebrantados los artículos 142 y 363 inciso b) del Código Procesal Penal, 39 de la Constitución Política, 71 del Código Penal, 8 de la Convención Americana sobre Derechos Humanos y la jurisprudencia de la Corte Interamericana de Derechos Humanos. Afirma que la defensa, en conclusiones, alegó que debió aplicarse al asunto bajo examen el artículo 81 inciso b) del Código de Normas y Procedimientos Tributarios, que se refiere a liquidaciones inexactas, excluyendo la aplicación del uso de documento falso. Ello estaba referido a los siguientes hechos y declaraciones: 1) D-151 número [Identificacion1], 2) D-151 número [Identificacion2], 4) D-101 número [Identificacion3], 5) D-101 número [Identificacion4], 7) D-151 número [Identificacion5], 8) D-151 número 15113003880516, 10) D-101 número [Identificacion6], 11) D-101 número [Identificacion7], 12) D-101 número [Identificacion8], 14) D-101 número [Identificacion9], 16) D-101 número [Identificacion10], 17) D-101 número [Identificacion11], 18) D-151 número [Identificacion12], 21) D-101 número [Identificacion13], 22) D-101 número [Identificacion14], 24) D-151 número [Identificacion15], 27) D-101 número [Identificacion16], 29) D-151 número [Identificacion17] y 30) D-151 número [Identificacion18]. Señala la impugnante que lo que se indica en la sentencia respecto a lo declarado por [Nombre7] , no tiene relación alguna con lo alegado por la defensa. El tribunal se refiere al abuso de derecho, lo cual carece de ligamen con lo reclamado por los defensores. Igualmente falta relación con lo alegado por la defensa en toda la argumentación sobre el sistema tributario en Costa Rica. Refiere el tribunal que las acciones de la imputada no pueden considerase simples infracciones tributarias, porque en tal caso la norma penal que se le aplica perdería todo objetivo y sería inútil todo esfuerzo administrativo por recaudar impuestos, argumento que la impugnante considera falaz, por desconocer que las infracciones tributarias también son hechos ilícitos sancionables. Igualmente se dice que las declaraciones autoliquidativas no obedecieron a errores contables o materiales, sino que fueron engañosas, distinción que, a juicio de la apelante, no deriva del artículo 81 inciso b) del Código de Normas y Procedimientos Tributarios. La argumentación del tribunal deja de considerar la expresión contemplada en ese inciso sobre el empleo de datos falsos. El artículo referido sanciona las infracciones tributarias relacionadas con el pago inadecuado de impuestos; en este caso, los documentos que según el tribunal son falsos, son declaraciones tributarias, en las que la ley sanciona el empleo de datos falsos. La anulación de la condena debe llevar a la de la pena de tres años por cada hecho, ya que el tribunal la fundamentó, reiteradamente, en que se cometieron treinta y dos usos de documento falso. Por ello pide se declare con lugar el motivo, se anule la condenatoria por los hechos 1, 2,4, 5, 7, 8, 10, 11, 12, 14, 16, 17, 18, 21, 22, 24, 27, 29 y 30; que, por economía procesal, se absuelva a la encartada por tales hechos y, subsidiariamente, se anule la condena y se disponga el reenvío; además, que se anule la pena por todos los delitos por los que se mantenga la condenatoria, incluyendo los numerados 3, 6, 9, 13, 15, 19, 20, 23, 25, 26, 28, 31 y 32 y que, en consecuencia, se disponga el reenvío para la fijación de pena.

III.- Por su conexidad temática, se conocerán conjuntamente los dos motivos sintetizados en el considerando anterior, declarándose ambos sin lugar. La parte introductoria del reclamo formulado por los licenciados Fabio Oconitrillo Tenorio y Gloriana Jiménez Rey, hace un par de aseveraciones generales sobre la valoración de la prueba y, especialmente, sobre el dictamen pericial 2015-1402-AED y el informe final del caso de la Dirección de Inteligencia de la Administración Tributaria. Los letrados no desarrollan sus reproches en este apartado, como sí lo hacen en motivos posteriores. Por ello, al resolver estos otros, se analizará la procedencia de tales quejas. Propiamente en cuanto al motivo aquí alegado, los letrados comienzan afirmando que el fallo carece de fundamentación jurídica y de análisis legal de la tesis de la defensa, en relación con el concurso aparente de normas; en este punto, la imputada habla también de falta de fundamentación. Lo primero que debe quedar claro, sin embargo, es que el tema fue ampliamente tratado por el tribunal de mérito en el sexto considerando del fallo, propiamente en el apartado titulado “SOBRE LA TESIS DE LA DEFENSA” (sentencia en archivo digital, pp. 198 a 207). Consecuentemente, lo que corresponde es valorar el análisis realizado por el a quo, y determinar si llegó a conclusiones correctas sobre la temática planteada. Se trata de determinar si las conductas por las que fue encontrada responsable la encartada se adecúan al tipo penal del uso de falso documento (artículo 372 del Código Penal); o si más bien, se enmarcan en la previsión del numeral 81, inciso b), del Código de Normas y Procedimientos Tributarios —o, incluso, si podrían ocurrir ambas cosas a la vez—. El primero de los referidos artículos señala: “Será reprimido con uno a seis años de prisión, el que hiciere uso de un documento falso o adulterado”; el otro, en cuanto interesa para resolver lo planteado, indica: “1. Constituyen infracciones tributarias: […] b) Presentar declaraciones autoliquidaciones inexactas. Esta infracción se configura cuando los sujetos pasivos dejen de ingresar, dentro de los plazos legalmente establecidos, las cuotas tributarias que correspondan, por medio de la presentación de declaraciones autoliquidaciones inexactas. Para estos fines, se entenderá por inexactitud: / i. El empleo de datos falsos, incompletos o inexactos, de los cuales se derive un menor impuesto o un saldo menor por pagar o un mayor saldo a favor del contribuyente o responsable […] 3. Sanciones aplicables. Las infracciones materiales descritas en los subincisos a), b), c) y d) del inciso 1 de este artículo serán sancionadas con una multa pecuniaria del cincuenta por ciento (50%) sobre la base de la sanción que corresponda […]”. Ha sostenido la defensa de la encartada que el segundo artículo constituye norma especial respecto al primero, de manera que, por relación de especialidad, debe prevalecer sobre el uso de falso documento. Como condición previa para valorar la tesis planteada por la defensa técnica y material, debe delimitarse su ámbito de posibilidad. A [Nombre1] se le condenó por confeccionar y presentar una serie de declaraciones autoliquidaciones falsas, en su condición de representante de las empresas Edificio Adrofer Sociedad Anónima, Consultoría ORS y Asociados Sociedad Anónima e Inversiones Beyof Sociedad Anónima; pero también, por elaborar otras a nombre de [Nombre5] . En cuanto a estas últimas declaraciones, la tesis defensiva carecería de sentido porque el inciso b) del artículo 81 de la Ley de Normas y Procedimientos Tributarios, claramente se entiende dentro del contexto de la realización de autoliquidaciones que el sujeto formula en el marco de sus deberes tributarios y no cuando incurre en una conducta abiertamente antijurídica, al engañar al fisco elaborando autoliquidaciones ficticias a nombre de otro. Por otro lado, la tesis “de la existencia del error” sostenida por la defensa pierde sentido cuando se realizan liquidaciones rectificativas, precisamente porque con ellas se procura subsanar un error previo. Aparentemente así lo entendió la imputada, ya que delimitó su recurso a aquellas declaraciones autoliquidaciones que no correspondían a [Nombre5] ni eran rectificativas. Se trata de las siguientes: D-151 número [Identificacion1], D-151 número CED2, D-101 número CED3, D-101 número CED4, D-151 número CED5, D-151 número CED6, D-101 número CED7, D-101 número CED8, D-101 número CED9, D-101 número CED10, D-101 número CED11, D-101 número CED12, D-151 número CED13, D-101 número CED14, D-101 número CED15, D-151 número CED16, D-101 número CED17, D-151 número CED18 y D-151 número CED19. Es respecto a tales declaraciones que se debe contestar si corresponde aplicar el inciso b), del artículo 81 de la Ley de Normas y Procedimientos Tributarios, con exclusión del numeral 372 del Código Penal. La respuesta de esta cámara es negativa, por las razones que de seguido se exponen. Nótese, en primer término, que las previsiones normativas bajo examen resguardan bienes jurídicos completamente distintos. El uso de falso documento se ubica en el título XVI del Código Penal, referido a los delitos contra la fe pública. Sobre este bien jurídico señala la doctrina: “De modo general puede decirse que los delitos comprendidos en el Título XII de nuestro Código Penal [se refiere al argentino] concretan ataques a la fe pública, por hacer aparecer como auténticos y reveladores de verdad, signos representativos o documentos que dan cuenta de lo pasado, cuando no son auténticos o mienten sobre lo representado. / Pero todos los objetos de estos delitos vienen señalados por una particular característica que les ha otorgado el Estado con su función jurídica: o se los ha impuesto como instrumentos de fe valederos erga omnes, por las formas de su representación o por la persona que interviene en su formación (como ocurre con la moneda y los instrumentos públicos), o se los ha dotado de una determinada prestancia acreditadora de su procedencia y contenido para que puedan cumplir efectivamente la función que el mismo derecho les asigna en la vida transaccional (como en los títulos de circulación y, en general, en los denominados instrumentos privados). Pero si los primeros se encarnan en lo que, con propiedad, podemos indicar como la esfera de la fe pública, los segundos participan de ella en virtud de los efectos que la ley le otorga en los negocios jurídicos de los particulares, aunque no tengan consecuencias para quienes son extraños a dichos negocios” ([Nombre8], . Derecho Penal, Parte Especial, t. 2, 6ª ed., Buenos Aires, Editorial Astrea, 1998, p. 359). Luego, dejando de lado la discusión doctrinaria de la que el mismo autor da cuenta, sobre si lo que en realidad se protege en todos esos tipos penales es la fe pública o “la confianza general en la autenticidad y veracidad de los objetos en cuanto medio indispensable para que aquéllos cumplan debidamente sus finalidades jurídicas” (op. cit., pp. 359 y 360), lo cierto es que puede concluirse, con el citado autor, que: “En trance de concretar el concepto, puede decirse que el bien jurídico fe pública es atacado o puesto en peligro cuando la objetividad introducida por la conducta del agente en el objeto es apta para suscitar en cualquiera la confianza que él merece, por reunir las formas prescriptas por la ley para que se lo acepte como representativo del acto que expresa y, por tanto, como acreditación (prueba) de él” (loc. cit. p. 362). En un sentido similar, y citando a [Nombre9] , [Nombre10] señala: “[Nombre9] se preguntaba: "¿Cuál es ese bien jurídico en las falsedades? La fe pública, se acostumbra a decir". Y explica la cuestión de la siguiente manera, que es más que importante a los efectos de introducirnos en el tema: "Fe publica, medios de prueba, intereses afectados o afectables por esos medios de prueba, son estaciones en el mismo camino: el de la protección de los intereses; pero al castigar las falsedades se adopta un sistema de preservación. La lesión de los intereses, ya protegidos por otras normas, no es necesaria; basta el peligro. La lucha contra las falsedades tiene un carácter preventivo: es una especie de desinfección social. De modo que no es necesario se produzca un perjuicio a un particular (ni siquiera en la de documentos privados, para la cual nuestro Código se contenta con el ánimo de perjudicar); más tampoco es suficiente la simple mutación de la verdad. Solo cuando el documento falso sea un peligro, cuando sea utilizado o utilizable como prueba para engendrar una perturbación en el tráfico jurídico, se habrá alcanzado la objetividad jurídica de la infracción […]"” (Donna, Edgardo Alberto. Derecho Penal, parte especial, t. IV, Buenos Aires, Rubinzal Culzoni Editores, 2004, p. 126). Lo cierto es que, ya sea que se hable de la fe pública, de la confianza en la autenticidad y veracidad de los objetos empleados en los negocios jurídicos, o de la defensa del tráfico jurídico, lo que subyace es el valor que se otorga al hecho de que las personas puedan tener seguridad cuando se valen de ciertos instrumentos jurídicos necesarios en la vida social —al menos, tal como ésta es concebida hoy en día—. Esa seguridad se ve socavada por quien falsea, adultera, deforma, desnaturaliza, tergiversa, distorsiona, o simula, en su contenido material o ideológico, aquellos instrumentos. A juicio de esta cámara comprender lo anterior reviste la mayor importancia, ya que el planteamiento recursivo de la defensa técnica y material afirma que, en el caso de las declaraciones autoliquidaciones bajo examen, por alguna razón, el legislador decidió hacer un paréntesis en la protección del bien jurídico fe pública y, simplemente, lo dejó en desamparo. Al proponer la tesis del concurso aparente, se afirma que esa renuncia a la tutela, derivada de la aplicación del principio de especialidad, se hizo en favor de un artículo que, en realidad, no fue diseñado para resguardar tal bien jurídico, sino otro completamente distinto: el erario o hacienda pública. El inciso b) del artículo 81 del Código de Normas y Procedimientos Tributarios permite castigar conductas que ni siquiera califican como “dolosas”; se puede tratar, incluso, de simples descuidos. Ciertamente, también castiga la inclusión intencional de falsedades en el documento, pero ello no es indispensable porque basta con que el declarante incurra en inexactitudes, para que se le aplique la multa prevista en el mismo artículo. Véase que la sanción dispuesta está diseñada, exclusivamente, para que el fisco recupere los montos de los que fue privado; no se aprecia en la norma en cuestión el propósito de ir más allá de la recuperación de lo debido y, eventualmente, lograr el correcto ajuste de la conducta posterior del declarante. El que las normas en cuestión resguarden bienes jurídicos distintos es un claro indicador de que no puede existir entre ellas una relación concursal aparente. Como señala la doctrina “Para efectos de establecer cuándo las varias disposiciones violadas se excluyen entre sí o no se excluyen entre sí, es decir, para efectos de delimitar el concurso aparente de leyes del concurso ideal y del concurso material (real), hay dos criterios complementarios. Por un lado, se utiliza el criterio del bien jurídico (cuando las varias leyes que concurren protegen el mismo bien jurídico se habla de concurso aparente de normas, si ambas leyes violadas protegen bienes jurídicos diferentes, se habla de concurso ideal o de concurso real de delitos) y, por otro lado, el segundo criterio utilizado es la relación técnica de los tipos entre sí. Este segundo criterio es la aplicación de los principios de especialidad, subsidiariedad y consunción, que decide si los tipos penales confirma su independencia o sí, por el contrario, uno desplaza los demás” ([Nombre11] , Francisco. Derecho penal, parte general, t. III. San José, [Nombre12], Editorial Jurídica Continental, 2010, pp. 582 y 583, subrayado nuestro). Ciertamente, el mismo autor nos advierte que el primer criterio podría tener excepciones; no obstante, en ellas puede pensarse en casos referidos al principio de consunción y no al de especialidad. Por ejemplo, en las situaciones que cita [Nombre13] al explicar el hecho acompañante, del homicidio que abarca (“consume”) el daño causado en la vestimenta de la víctima; el hurto de arma de fuego respecto a la portación ilegal de la misma al consumarlo; o el acto sexual violento y las escoriaciones ([Nombre13] , . Derecho penal, parte general. 4ª ed., Colombia, Comlibros, 2009, pp. 1008 y 1009). Esos casos, que podrían admitir contienda en cuanto a su categorización, son de los pocos ejemplos en los que la lesión de distintos bienes jurídicos se resuelve mediante las reglas del concurso aparente, y se refieren al principio de consunción. Pero cuando se trata del principio de especialidad, solo tiene sentido que el legislador se mueva dentro del mismo bien jurídico, ya sea para aumentar su rigor o para disminuirlo, en consideración de ciertas características especializantes que él valora, no para dejarlo desprotegido. Esa desprotección sería, a fin de cuentas, el resultado de que se aceptara la tesis de los recurrentes. Finalmente, si se argumentara que en el artículo 81 del Código de Normas y Procedimientos Tributarios el legislador sí decidió castigar la transgresión de la fe pública pero, por alguna razón, con menor severidad, el razonamiento nos llevaría a un problema lógico. Si se tiene claro, como lo aceptan expresamente los defensores en su recurso, que ese artículo resguarda la hacienda pública, la tesis de la defensa conduciría a tener que aceptar que el legislador dispuso una pena mayor para quien afecta solo la fe pública (cárcel, según el numeral 372 del Código Penal), que para aquél que lesiona tanto ese bien jurídico como la hacienda pública (conforme al 81 del Código de Normas y Procedimientos Tributarios). Ello termina de mostrar, a juicio de esta cámara, que no hay una relación de especialidad entre las normas bajo examen que lleve al concurso aparente de normas. Este tribunal de apelación considera que se está, simplemente, ante uno de esos casos en que el ordenamiento enfrenta la antijuricidad de una conducta en distintos niveles, según la amplitud de sus consecuencias. Así, el trabajador que injuria a su patrono o daña intencionalmente su propiedad, no solo debe enfrentar la acusación por el delito respectivo, sino que puede ser objeto de un despido legítimo, según la ley laboral (artículo 81 del Código de Trabajo); el cónyuge que atenta contra la vida de su pareja o la prostituye, no solo ha de enfrentar la justicia penal, sino que incurre en causal de divorcio (artículo 48 del Código de Familia); la comisión del delito de cohecho puede tener como consecuencia, también, la disolución de la sociedad a cuyo nombre actúa el autor (artículo 11 de la ley Responsabilidad de las Personas Jurídicas sobre Cohechos Domésticos, Soborno Transnacional y otros Delitos); quien da muerte al causante de la herencia, también asume las consecuencias civiles de la indignidad (artículo 523 del Código Civil), etcétera. Si el daño se extiende a varios ámbitos de la vida social regulada, el agente debe enfrentar la respuesta en varios niveles. Eso es lo que ocurren en este caso: una conducta cuyas repercusiones en dos ámbitos distintos son enfrentadas por el ordenamiento de dos formas que no son excluyentes; es decir, que la conducta de la imputada tiene consecuencias penales y, simultáneamente, administrativo-tributarias. Ciertamente, el artículo 66 del Código de Normas y Procedimientos Tributarios señala que, si la acción judicial "[...] resulta en una condenatoria del sujeto, las infracciones que puedan considerarse actos preparatorios del delito, sean acciones u omisiones incluidas en el tipo delictivo, se entenderán subsumidas en el delito". Sin embargo, en ese numeral se regula el principio non bis in idem entre delitos fiscales e infracciones administrativas. Ello no puede aplicar acá, porque el uso de falso documento no es un delito fiscal. Más aún, la misma Sala Constitucional ha aceptado la posibilidad de concurrencia de delitos fiscales y una sanción administrativa como el cierre de negocios previsto en algún momento en el artículo 20 de la Ley del Impuesto General sobre las Ventas, indicando "No obstante, en la hipótesis de aplicación del cierre de negocios, la norma del artículo 20 citado implícitamente disponía una sanción del concurso ideal equivalente a la suma de la sanción de cierre y la sanción penal que corresponda. Se estima razonable la tesis de que, en la medida en que esta acumulación pueda ser justificada como una integración de sanciones para la ponderación de una sanción proporcionada a la gravedad de la falta (gravedad objetiva del ilícito); o como una integración de sanción principal y accesoria, para tutelar bienes jurídicos distintos, no sería inconstitucional, salvo que exceda la proporción a la gravedad objetiva del ilícito" (voto 2000-08191, de las 15:03 hrs. del 13 de setiembre de 2000). Así, ante la afirmación de los defensores de que la legislación tributaria incluye, como infracción administrativa, el empleo de datos falsos en las declaraciones, de los que deriven menores impuestos, este tribunal manifiesta su total acuerdo; lo que no es aceptable es pretender que ahí acabe la responsabilidad que el ordenamiento impone a tal conducta. Mucho menos se puede estar de acuerdo cuando se afirma —por cierto, sin acompañar lo dicho con una argumentación— que la conducta castigada no afectó la fe pública. La acción acreditada de insertar hechos falsos en un documento y emplearlo, es calificado por el Código Penal como un delito que afecta ese bien jurídico. Más aún, el propio argumento del concurso aparente que intenta la defensa, para ser coherente, debe partir de que la conducta sí se pueda calificar como uso de falso documento, aunque se considere que se ajusta mejor a la infracción administrativa. Así, al señalar que lo realizado por la imputada [Nombre1] no lesiona la fe pública, los defensores minan su propia argumentación. A juicio de este tribunal de apelación, el a quo incurre en el error de sostener la tesis inversa a la defensa, dando a entender que la conducta de la imputada sólo se enmarca en el delito de uso de falso documento, excluyendo la infracción administrativa. Por todo lo que se ha dicho hasta ahora, ambas consecuencias (penal y administrativa) son compatibles. En todo caso, esa argumentación del tribunal de juicio no demerita la exactitud de su conclusión en lo que aquí interesa, de que la conducta penal existió y es punible. Por eso, las críticas que la imputada recurrente lanza a la sentencia, aunque en ciertos puntos son acertadas, no logran socavar la conclusión a la que llega el tribunal, ya en esos razonamientos, el órgano juzgador pretendía descartar la aplicabilidad del artículo 81 del Código de Normas y Procedimientos Tributarios, lo que, por lo dicho, no era correcto ni necesario para declarar la responsabilidad penal de la justiciable. La cita del experto en derecho tributario Adrián [Nombre7] Navas se refiere a lo que ocurre cuando se formula una declaración que rectifica lo declarado previamente. A juicio del abogado, la declaración rectificativa hace que la anterior deje de existir, e incluso, en el sistema informático queda borrada (sentencia, p. 83). El tribunal de mérito procura mostrar que la situación no se encuentra dentro de los supuestos sobre los que recayó el criterio del doctor [Nombre7]. Sin embargo, ello era innecesario, porque lo dicho por este experto solo tiene relevancia en el ámbito de su experticia: en el tema tributario. Su criterio puede ser acertado, o no, pero ese es un tema relacionado con las consecuencias administrativas de la conducta de [Nombre1] , ajeno al ámbito penal. Por ello, el tribunal no necesitaba dirigir su argumentación en ese sentido. Las elucubraciones sobre el abuso de derecho iban orientadas, también, a descartar la aplicación de la consecuencia administrativa a lo actuado; en igual sentido se dirigía toda la exposición referente al derecho tributario y al deber cívico de asumir las cargas de la actividad lucrativa que se realiza. Todo ello llevó al tribunal a sostener que la falsedad intencional verificada en las declaraciones no podía estar incluida en la regulación del artículo 81 del Código de Normas y Procedimientos Tributarios. Sin embargo, eso no resulta correcto. Como se vio en la cita realizada al inicio de este considerando, dicho numeral refiere que la inexactitud que regula y castiga contempla “El empleo de datos falsos, incompletos o inexactos, de los cuales se derive un menor impuesto o un saldo menor por pagar o un mayor saldo a favor del contribuyente o responsable”. Y si bien los términos “incompleto” e “inexacto” evocan, usualmente, situaciones de descuido; la “falsedad” resulta más relacionada con la acción consciente o intencional. En todo caso, como se deduce de lo que se ha dicho a través de todo este considerando, el criterio de esta cámara es que resultaba ocioso que el órgano de mérito se enfrascara en desvirtuar la aplicación de la legislación tributaria, cuando lo importante es que ésta no excluye la de la ley penal. La encartada recurrente sostiene que la anulación de la condena debe llevar a la de la pena de tres años por cada delito, ya que el tribunal la fundamentó, reiteradamente, en el hecho de que se cometieron treinta y dos delitos de uso de documento falso. El no acoger su impugnación en ese punto implica que la consecuencia que pretendía respecto al castigo tampoco sea procedente, sin perjuicio de lo que más adelante se dirá cuando se valore la argumentación específica planteada respecto a las penas impuestas. Por lo anterior, el rechazo de los reproches. Consideraciones sobre una calificación alternativa de los hechos. Aunque los recurrentes no la plantearon como parte de su argumentación, el tribunal valoró, en la deliberación, una tesis alternativa. La misma vendría a sostener que las conductas de la imputada en realidad constituyeron varios delitos de fraude a la hacienda pública, según lo dispuesto en el artículo 92 del Código de Normas y Procedimientos Tributarios. Se trataría de acciones típicas, antijurídicas y culpables, más no sancionables penalmente, por la ausencia de una condición objetiva de punibilidad (el monto mínimo de quinientos salarios base en la defraudación). Cada delito de fraude a la hacienda pública tendría la virtud de excluir, por consunción / especialidad —siendo el primer principio una versión del segundo— cualquier delito de uso de falso documento que se hubiere podido configurar; lo que ocurriría solo porque los documentos falsificados son de naturaleza privada y no pública. Lo que no queda excluido es la posibilidad de que la conducta subyacente (un genérico ilícito tributario, que puede ser delito o infracción administrativa) fuese castigado administrativamente. Así, de manera “oblicua”, habría que terminar dando la razón a los impugnantes, por razones distintas a las esgrimidas en sus recursos. La mayoría de esta cámara descarta esa lectura de las normas implicadas, por las razones que, de seguido, se exponen. A.- Sobre la condición objetiva de punibilidad. La clave de dicha explicación descansa en la redacción del artículo 92 del Código de Normas y Procedimientos Tributarios, que en lo que interesa declara: “El que, por acción u omisión, defraude a la Hacienda Pública con el propósito de obtener, para sí o para un tercero, un beneficio patrimonial, evadiendo el pago de tributos, cantidades retenidas o que se hayan debido retener, o ingresos a cuenta de retribuciones en especie u obteniendo indebidamente devoluciones o disfrutando beneficios fiscales de la misma forma, siempre que la cuantía de la cuota defraudada, el importe no ingresado de las retenciones o los ingresos a cuenta o de las devoluciones o los beneficios fiscales indebidamente obtenidos o disfrutados exceda de quinientos salarios base, será castigado con la pena de prisión de cinco a diez años. / Para los efectos de lo dispuesto en el párrafo anterior debe entenderse que: / a) El monto de quinientos salarios base se considerará condición objetiva de punibilidad […]”. Esa redacción es producto de la reforma realizada mediante el artículo 1° de la ley número 9069 del 10 de setiembre del 2012, "Ley de Fortalecimiento de la Gestión Tributaria". Es a partir de esa reforma que se establece que el referido monto se considerará condición objetiva de punibilidad; la redacción anterior no contenía esa precisión. Corresponde examinar, entonces, en qué consiste esa categoría jurídica a la que la norma hace mención. Se entiende por tal la “Condición de carácter objetivo que supone la producción de un hecho incierto y, según algunos, futuro, requerida por la ley en algunos delitos además de la conducta típica y que es independiente de la acción del autor” (Diccionario Panhispánico de español jurídico, recuperado de https://dpej.rae.es/lema/condici%C3%B3n-objetiva-de-punibilidad#:~:text=Pen.,de%20la%20acci%C3%B3n%20del%20autor ). Como dicha condición escapa al control del autor, no es —ni tiene sentido esperar que lo sea— abarcada por su dolo o imprudencia (según el caso). Como ejemplos se citan ciertas exigencias de reciprocidad internacional, que condicionan la punibilidad de delitos cometidos contra jefes de Estado y personas internacionalmente protegidas en algunos países; también la eventualidad de juzgamientos prevalentes, en ciertos delitos que se cometen utilizando medios o soportes de difusión mecánica (ver fuente recién citada); la comisión de un hecho antijurídico, en el caso de la embriaguez total; la muerte o lesiones graves en la riña; la suspensión de pagos y apertura de concurso, en el caso de quiebras punibles (Roxin, Claus. Derecho penal, parte general, t. I, 2ª ed., Civitas, 1997, pp. 970 y 971); o el monto del contrabando en ciertos delitos aduaneros ([Nombre14] , . Condiciones objetivas de punibilidad, en Revista Jurídica Cajamarca, recuperado desde https://www.derechoycambiosocial.com/RJC/Revista14/punibilidad.htm , apartado 3). La polémica característica que tienen dichas condiciones es que, por su carácter incierto y objetivo, no deben ser abarcadas por el elemento subjetivo del tipo, a pesar de ser determinantes para la sanción. Algunos autores sostienen que ellas respetan el principio de culpabilidad y no caen en la responsabilidad objetiva, porque simplemente restringen el campo de la culpabilidad; otros, en cambio, señalan que, si la falta de tales condiciones da lugar a la impunidad, entonces su presencia fundamenta la punición, lo que es cuestionable tratándose de un elemento que no es gobernado por la conducta dolosa del sujeto (sobre las posiciones al respecto, véanse las dos últimas obras citadas). Con independencia de la posición que se asuma al respecto, lo cierto es que lo expuesto permite entender lo que se pretendió con la reforma que otorgó a la cuantía del fraude el carácter de condición objetiva de punibilidad. Se quiso, como ocurre en otras legislaciones, sustraer el monto del fraude del dominio del dolo, haciendo infructuosa cualquier defensa que pretendiera alegar un error sobre él. Como se vio líneas atrás, la redacción del artículo 92 abarca formas muy diversas de comisión, algunas de las cuales pueden implicar resultados económicos inciertos. En tales casos, la inclusión de la condición impide que el autor alegue, con éxito, que desconocía que el monto defraudado superaba los quinientos salarios base; su conducta es dolosa aun cuando no hubiera considerado esa posibilidad, porque la condición objetiva de punibilidad va más allá del injusto y, consecuentemente, no debe estar cubierta por el conocimiento y voluntad de realización del hecho. Ya la división entre infracciones administrativas y delitos existía antes de la reforma y siguió existiendo después de ella; lo único que aporta la inclusión de ese instituto es lo que se acaba de indicar. Por ello no es aceptable, para la mayoría del tribunal, entender que el legislador quiso generar, a partir de la reforma, una especie de limbo para unas conductas que no son infracciones administrativas ni delitos punibles, sino una categoría especial de delitos sin sanción penal ni consecuencia administrativa. Conviene detenerse en esto último, ya que la interpretación alternativa que se propone, llevada hasta sus últimas consecuencias, debería conducir al efecto práctico de la impunidad de toda conducta fraudulenta dolosa, cuyo monto fuera menor a quinientos salarios base. El artículo 66 del Código de Normas y Procedimientos Tributarios dispone: “La comprobación de los hechos ilícitos tributarios deberá respetar el principio "non bis in idem", de acuerdo con las siguientes reglas: / a) En los supuestos en que las infracciones puedan constituir delitos tributarios, la Administración trasladará el asunto a la jurisdicción competente, según el artículo 89, y se abstendrá de seguir el procedimiento sancionador mientras la autoridad judicial no dicte sentencia firme. La sanción de la autoridad judicial excluirá la imposición de sanción administrativa por los mismos hechos. / De no haberse estimado la existencia del delito, la Administración continuará el expediente sancionador con base en los hechos considerados por los tribunales como probados […]” (subrayado suplido). A contrario sensu, si se estima que la conducta en cuestión es delictiva, ¿de qué forma se puede justificar la remisión del asunto a la administración para que sancione la infracción tributaria, cuando no supera los quinientos salarios base? El artículo 90 del mismo código dispone: “[…] En sentencia, el juez penal resolverá sobre la aplicación de las sanciones penales tributarias al imputado. En el supuesto de condenatoria, determinará el monto de las obligaciones tributarias principales y las accesorias, los recargos e intereses, directamente vinculados con los hechos configuradores de sanciones penales tributarias, así como las costas respectivas” (subrayado nuestro). ¿Cómo podrían cobrase los montos no pagados si no hubo condenatoria? La coherencia impondría la impunidad total de tales conductas; a nuestro juicio, la conclusión de la tesis alternativa, que sugiere la posibilidad del cobro a partir del artículo 81 del código comentado, no considera esas normas y entra en contradicción. Ello resulta particularmente paradójico, si se toma en cuenta que las conductas que se pueden adecuar a la explicación alternativa son solo infracciones intencionales. Los comportamientos regulados en el artículo 81 del Código de Normas y Procedimientos Tributarios no tienen que ser, necesariamente, dolosos; en esto sí es unánime el criterio del tribunal. Ahí están contempladas una serie de acciones que pueden catalogarse, incluso, como meramente descuidadas. La ley decidió prescindir del factor subjetivo y castigó desde el proceder malintencionado hasta el simple error. Pero solo aquellas acciones más graves, las intencionales, tienen la posibilidad de llegar a configurar delitos (porque no existe el fraude de hacienda culposo) y, consecuentemente, solo ellas pueden ser abarcadas por la teoría alternativa que aquí se critica. Éstas, por lo dicho, quedarían sin sanción administrativa, pero las acciones descuidadas sí podrían castigarse, lo que carece de sentido: se perdona lo más reprochable y se castiga lo que es socialmente menos ofensivo. Todo lo anterior lleva a reafirmar el sentido de los dispuesto por el legislador en el caso de la condición objetiva de punibilidad del artículo 92 del Código de Normas y Procedimientos Tributarios: en su virtud, no es procedente alegar error o desconocimiento en cuanto al monto defraudado, aun cuando en el caso concreto pueda haber algún grado de incertidumbre sobre él, ya que el mismo constituye una condición objetiva de punibilidad, que no debe estar cubierta por el dolo. En el caso bajo examen, esa incertidumbre ni siquiera existe, porque la autora siempre supo cuánto estaba dejando de aportar a las arcas del Estado. De ahí que no tenga sentido hablar de una condición objetiva de punibilidad en este asunto concreto. A lo anterior se añade un problema particular del caso: la calificación del monto del fraude como condición objetiva de punibilidad nació, como se ha indicado, mediante reforma legal del diez de setiembre de dos mil doce. Pero las conductas juzgadas incluyen hechos del dos mil nueve al dos mil trece. Se ha querido justificar su aplicación retroactiva señalando que el cambio fue una interpretación auténtica de la norma ya existente; sin embargo, no existe sustento alguno para tal afirmación. En realidad, se trató de una reforma integral, que cambió muchos artículos del referido código, variando totalmente la redacción del 92. Además, no se trató de una modificación más favorable al imputado, en tanto excluye la necesidad de que el elemento subjetivo implique el conocimiento y voluntad de defraudar una suma determinada; se trata, más bien, de una modificación que agravó la situación del autor potencial de ese delito. Consecuentemente, no es una reforma legal que pueda aplicarse retroactivamente. Así, la tesis ni siquiera resultaría aplicable a la mayoría de los documentos por los que se castigó a la encartada. B.- Sobre el concurso aparente de normas. Por otro lado, aun cuando se aceptara que lo que cometió la imputada fueron delitos de fraude a la hacienda pública, no puede sostenerse que entre este tipo de delito y el de uso de falso documento existe una relación de especialidad, en virtud de la cual el último queda absorbido por el primero. En primer lugar, por la diferencia de bienes jurídicos involucrados en cada caso, según se explicó al comparar el numeral 372 del Código Penal con el 81 de la Ley de Normas y Procedimientos Tributarios. Segundo, porque muchas de las formas de defraudar a la hacienda ni siquiera requieren la elaboración de un documento (piénsese en la omisión, expresamente contemplada en el tipo, en la que no se falsifica ni se presenta nada). Desde ningún punto de vista, el fraude a la hacienda pública puede catalogarse como una especie del delito de uso de falso documento. Quizá por ello la tesis que se comenta debe acudir a la relación de consunción y no a la especialidad alegada por los apelantes, señalando que, a fin de cuentas, ésta es una versión de relación de especialidad. Pero en realidad, ello no es así; una y otra son formas de concurso aparente que, si bien a veces son tratadas en forma confusa por la doctrina, no por ello se pueden equiparar. Más confuso resulta el tema de la concurrencia, si se afirma que la absorción no se da cuando hay de por medio un documento público, más sí cuando se trata de uno privado. El numeral 372 del Código Penal castiga el uso de un documento falso de cualquier naturaleza, pública o privada. Si es así, queda sin explicar ¿qué norma o principio permitiría excluir la aplicación del mismo delito en unos casos y no en otros? ¿Cómo se explica, jurídicamente, que un mismo artículo resulte, a veces sí y a veces no, sometido a una relación de consunción? Por lo anterior, la mayoría rechaza esa lectura de la situación planteada. En vez de ello, consideramos atinada la interpretación implícita que subyace en la sentencia, e incluso en los mismos recursos de la defensa, según la cual el monto de quinientos salarios base (unido a los demás elementos objetivos que no son objeto de análisis aquí) determina si se está ante un delito o ante una infracción administrativa, sin que haya una situación difusa, intermedia, entre ambos.

IV.- El segundo reclamo de los defensores de la encartada es por fundamentación jurídica incorrecta. En los hechos probados 1 y 2 del período dos mil nueve, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número [Identificacion1], a nombre de Edificio Adrofer Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. El informe 2015-1402-AED, en sus resultados 55 y 61 (pp. 43 y 47), demuestra que los rasgos de escritura de la declaración no corresponden con los de la encartada. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Adicionalmente, esta declaración no consta en la prueba documental, sino solo un detalle de declaraciones de terceros, sin la firma de la imputada. La hoja en la que se firman las declaraciones D-151 no contiene el detalle de proveedores, sino que este está en un anexo. Tampoco existe prueba de que la imputada presentara esta declaración en la entidad bancaria. Como tercer reproche, se reclama fundamentación jurídica incorrecta. En los hechos probados 3 y 4 del período dos mil nueve, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número [Identificacion2], a nombre de Consultoría ORS y Asociados Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. El informe 2015-1402-AED, en sus resultados 64 y 70 (pp. 49 y 52), demuestra que los rasgos de escritura de la declaración no corresponden con los de la encartada. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. La hoja en la que se firman las declaraciones D-151 no contiene el detalle de proveedores, sino que este está en un anexo. Tampoco existe prueba de que la imputada presentara esta declaración en la entidad bancaria. Como cuarto reparo, se alega fundamentación jurídica incorrecta. En los hechos probados 5 y 6 del período dos mil nueve, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número [Identificacion19], a nombre de [Nombre5] . Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. El informe 2015-1402-AED, en su resultado 36 (p. 35), demuestra que los rasgos de escritura de la declaración no corresponden con los de la encartada. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de la señora [Nombre5] . Tampoco existe prueba de que la imputada presentara esta declaración en la entidad bancaria. Como quinta objeción, se reclama fundamentación jurídica incorrecta. En el hecho probados 7 del período dos mil nueve, el tribunal concluyó que la imputada confeccionó la declaración D 101 número [Identificacion3], a nombre de Edificio Adrofer Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. El informe 2015-1402-AED, en su resultado 26 (p. 30), demuestra que los rasgos de escritura de la declaración no corresponden con los de la encartada. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Tampoco existe prueba de que la imputada presentara esta declaración en la entidad bancaria. Como sexto motivo, se reclama fundamentación jurídica incorrecta. En el hecho probado 8 del período dos mil nueve, el tribunal concluyó que la imputada confeccionó la declaración D 101 número [Identificacion4], a nombre de Consultoría ORS y Asociados Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara dicha declaración. El informe 2015-1402-AED, en su resultado 32 (p. 34), demuestra que los rasgos de escritura de la declaración no corresponden con los de la encartada. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Como sétimo reclamo, se argumenta fundamentación jurídica incorrecta. En el hecho probado 9 del período dos mil nueve, el tribunal concluyó que la imputada presentó las declaraciones D 101 número [Identificacion20], a nombre de [Nombre5] ; la D 101 número [Identificacion3] a nombre de Edificio Adrofer Sociedad Anónima y la D 101 número [Identificacion4] a nombre de Consultoría ORS y Asociados Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada presentara dichas declaraciones. Tampoco existe prueba de que la imputada presentara esta declaración en la entidad bancaria. Como octavo reproche, se alega fundamentación jurídica incorrecta. En los hechos probados 1 y 2 del período dos mil diez, el tribunal concluyó que la imputada confeccionó la declaración D 151 número [Identificacion5], a nombre de Edificio Adrofer Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Adicionalmente, esta declaración no consta en la prueba documental, sino un detalle de declaraciones de terceros, sin la firma de la imputada. La hoja en la que se firman las declaraciones D 151 no contiene el detalle de proveedores, sino que este está en un anexo. Asimismo, se probó que esta declaración fue presentada por la señora [Nombre6] , por medio del usuario de su esposo [Nombre15] . Como noveno reparo, se invoca fundamentación jurídica incorrecta. En los hechos probados 3 y 4 del período dos mil diez, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número 15113003880516, a nombre de Consultoría ORS Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. La hoja en la que se firman las declaraciones D 151 no contiene el detalle de proveedores, sino que este está en un anexo. Asimismo, se tuvo por probado que la declaración fue presentada por [Nombre6] por medio del usuario de su esposo [Nombre15] . Como décimo reproche, se alega fundamentación jurídica incorrecta. En los hechos probados 5 y 6 del período dos mil diez, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número [Identificacion21], a nombre de [Nombre5] . Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de [Nombre5] . Asimismo, se tuvo por probado que esa declaración fue presentada por [Nombre6] por medio del usuario de su esposo [Nombre15] . Como décimo primer motivo, se alega fundamentación jurídica incorrecta. En el hecho probados 7 del período dos mil diez, el tribunal concluyó que la imputada confeccionó la declaración D 101 número [Identificacion6], a nombre de Edificio Adrofer Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Como décimo segundo motivo, se alega fundamentación jurídica incorrecta. En el hecho probado 8 del período dos mil diez, el tribunal concluyó que la imputada confeccionó la declaración D 101 número [Identificacion7], a nombre de Consultores ORS y Asociados Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. El informe 2015-1402-AED, en su resultado 32 (p. 34), demuestra que los rasgos de escritura de la declaración no corresponden con los de la encartada. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Como décimo tercer motivo, se reclama fundamentación jurídica incorrecta. En el hecho probado 9 del período dos mil diez, el tribunal concluyó que la imputada presentó las declaraciones D 101 número [Identificacion8], a nombre de Inversiones Beyof Sociedad Anónima; la [Identificacion7], a nombre de Consultoría ORS y Asociados Sociedad Anónima; la [Identificacion6], a nombre de Edificio Adrofer Sociedad Anónima y la 101225706772, a nombre de [Nombre5] . Pero la prueba testimonial, documental y pericial no acredita que la imputada presentara dichas declaraciones. No existe prueba de que la imputada presentara esta declaración en la entidad bancaria. Como décimo cuarto motivo, se alega fundamentación jurídica incorrecta. En el hecho probado 1 del período dos mil once, el tribunal concluyó que la imputada confeccionó la declaración D 101 número [Identificacion9], a nombre de Inversiones Beyof Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. La declaración se hizo por medio del sistema [...], por lo que no había que hacerla a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Inclusive se tuvo por probado que esta declaración fue presentada por [Nombre6] . Como décimo quinto motivo, se alega fundamentación jurídica incorrecta. En el hecho probado 2 del período dos mil once, el tribunal concluyó que la imputada confeccionó la declaración D 101 número [Identificacion22], a nombre de [Nombre5] . Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento en que se hizo esta declaración, se realizaba mediante el sistema [...], por lo que no había que hacerla a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Incluso se tuvo como probado que esta declaración fue presentada por [Nombre6] . Como décimo sexto motivo, se reclama fundamentación jurídica incorrecta. En el hecho probado 3 del período dos mil once, el tribunal concluyó que la imputada presentó las declaraciones D 101 número [Identificacion9], a nombre de Inversiones Beyof Sociedad Anónima; [Identificacion22], a nombre de [Nombre5] ; la [Identificacion10], a nombre de Edifico Adrofer Sociedad Anónima y la [Identificacion11], a nombre de Consultoría ORS y Asociados Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dichas declaraciones. Tampoco existe prueba de que la imputada presentara esta declaración en la entidad bancaria. Como décimo sétimo motivo, se reclama fundamentación jurídica incorrecta. En el hecho probado 4 del período dos mil once, el tribunal concluyó que la imputada confeccionó la declaración D 151 número [Identificacion12], a nombre de Inversiones Beyof Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. Adicionalmente, esta declaración no consta en la prueba documental, sino un detalle de declaraciones de terceros, sin la firma de la imputada. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Incluso, se tuvo por probado que la declaración fue presentada por [Nombre6] . Como décimo octavo motivo, se alega fundamentación jurídica incorrecta. En el hecho probado 5 del período dos mil once, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número [Identificacion23], a nombre de [Nombre5] . Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba y presentaba las declaraciones tributarias de [Nombre5] . Incluso, se tuvo por demostrado que esta declaración fue presentada por [Nombre6] . Como décimo noveno motivo, se alega fundamentación jurídica incorrecta. En el hecho probado 6 del período dos mil once, el tribunal concluyó que la imputada confeccionó y presentó la declaración rectificativa D 151 número [Identificacion24], a nombre de [Nombre5] . Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba y presentaba las declaraciones tributarias de [Nombre5] . Incluso, se tuvo por probado que la declaración fue presentada por [Nombre6] . Como vigésimo primer motivo, se reclama fundamentación jurídica incorrecta. En el hecho probado 1 del período dos mil doce, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 101 número [Identificacion13], a nombre de Inversiones Beyof Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Inclusive, se tuvo por probado que esta declaración fue presentada por [Nombre6] . Como vigésimo segundo motivo, se reclama fundamentación jurídica incorrecta. En el hecho probado 2 del período dos mil doce, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 101 número [Identificacion14], a nombre de Inversiones Beyof Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Inclusive, se tuvo por probado que la declaración fue presentada por [Nombre6] . Como vigésimo tercer motivo, se reclama fundamentación jurídica incorrecta. En el hecho probado 3 del período dos mil doce, el tribunal concluyó que la imputada confeccionó y presentó la declaración rectificativa D 101 número [Identificacion25], a nombre de [Nombre5] . Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de [Nombre5] . Inclusive, se tuvo por probado que esta declaración la presentó [Nombre6] . Como vigésimo cuarto motivo, se alega fundamentación jurídica incorrecta. En el hecho probados 4 del período dos mil doce, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número [Identificacion15], a nombre de Inversiones Beyof Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acredita que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Inclusive, se tuvo por probado que esta declaración fue presentada por [Nombre6] . Como vigésimo quinto motivo, se reclama fundamentación jurídica incorrecta. En el hecho probados 5 del período dos mil doce, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número [Identificacion26], a nombre de [Nombre5] . Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de [Nombre5] . Inclusive, se tuvo por probado que esta declaración fue presentada por [Nombre6] . Como vigésimo sexto motivo, se reclama fundamentación jurídica incorrecta. En el hecho probados 6 del período dos mil doce, el tribunal concluyó que la imputada confeccionó y presentó la declaración rectificativa D 151 número [Identificacion27], a nombre de [Nombre5] . Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de [Nombre5] . Inclusive, se tuvo por probado que esta declaración fue presentada por [Nombre6] . Como vigésimo sétimo motivo, se reclama fundamentación jurídica incorrecta. En el hecho probados 1 del período dos mil trece, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 101 número [Identificacion16], a nombre de Inversiones Beyof Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Inclusive, se tuvo por probado que esta declaración fue presentada por [Nombre6] . Como vigésimo octavo motivo, se alega fundamentación jurídica incorrecta. En el hecho probados 2 del período dos mil trece, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 101 número [Identificacion28], a nombre de [Nombre5] . Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación “caso [Nombre1] ”), [Nombre6] acredita que ella realizaba las declaraciones tributarias de [Nombre5] . Inclusive, se tuvo por probado que esta declaración fue presentada por [Nombre6] . Como vigésimo noveno motivo, se invoca fundamentación jurídica incorrecta. En el hecho probado 3 del período dos mil trece, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número [Identificacion17], a nombre de Inversiones Beyof Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación “caso [Nombre1] ”), [Nombre6] acredita que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Inclusive, se tuvo por probado que esta declaración fue presentada por [Nombre6] . Como trigésimo motivo, se reclama fundamentación jurídica incorrecta. En el hecho probado 4 del período dos mil trece, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número [Identificacion18], a nombre de Inversiones Beyof Sociedad Anónima. Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de las empresas de la justiciable. Inclusive, se tuvo por probado que esta declaración fue presentada por [Nombre6] . Como trigésimo primer motivo, se reprocha fundamentación jurídica incorrecta. En el hecho probado 5 del período dos mil trece, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número [Identificacion29], a nombre de [Nombre5] . Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de [Nombre5] . Inclusive, se tuvo por probado que esta declaración fue presentada por [Nombre6] . Como trigésimo segundo motivo, se reclama fundamentación jurídica incorrecta. En el hecho probado 6 del período dos mil trece, el tribunal concluyó que la imputada confeccionó y presentó la declaración rectificativa D 151 número [Identificacion30], a nombre de [Nombre5] . Pero la prueba testimonial, documental y pericial no acredita que la imputada realizara y presentara dicha declaración. Al momento de confeccionar esta declaración, se realizaba mediante el sistema [...], por lo que no debía hacerse a mano. En entrevista de la Dirección de Inteligencia de la Administración Tributaria (anexos del informe de investigación del “caso [Nombre1] ”), [Nombre6] acreditó que ella realizaba las declaraciones tributarias de [Nombre5] . Inclusive, se tuvo por probado que esta declaración fue presentada por [Nombre6] .

V.- Por su unidad temática, se conocerán conjuntamente los motivos referidos en el anterior considerando, declarándose los mismos sin lugar. Como se aprecia en el planteamiento de los reproches, los recurrentes tomaron la decisión de cuestionar, uno a uno, los diferentes eventos por los que se condenó a la encartada [Nombre1] . Para darles una respuesta adecuada, sin embargo, esta cámara tiene que emprender un camino distinto. A la encartada no se le atribuyó la comisión de hechos delictivos aislados e inconexos; más bien se afirma que estuvo vinculada, y participó activamente, en una red delictiva que realizó una pluralidad de acciones por varios años, con la participación no solo suya, sino también de terceros. La actividad delictiva —se dice— tuvo cierto nivel de complejidad y requirió cooperación. Así las cosas, si se procura establecer la verdad de lo acontecido, lo primero que debe hacerse es obtener un panorama general, partiendo, naturalmente, de los elementos de prueba. Solo después de entender, en forma global, qué fue lo que se hizo, se puede volver a lo particular, para determinar qué papel desempeñó —si es que lo tuvo— la imputada en ese cuadro fáctico. Habrá que partir del dato particular para llegar a ese cuadro general; del análisis de los datos concretos a la visión totalizadora, y luego volver a lo particular. Ese fue el camino tomado por el tribunal de juicio (sentencia subida al escritorio virtual, pp. 127 a 183), y a ello se hará referencia, aunque no necesariamente en el mismo orden de exposición, pero dejando claro que el análisis integral de todos los elementos ya se encuentra en el fallo de mérito. Resulta oportuno indicar que el descubrimiento de lo que el tribunal de juicio ha llamado el “complejo plan revestido de legalidad” (sentencia, p. 127), comienza con la noticia recibida por la señora [Nombre5] , de que se encontraba registrada como obligada tributaria en el Ministerio de Hacienda. La revelación se dio cuando su hijo la pretendía asegurar como “no cotizante”, momento en que la Caja Costarricense de Seguro Social, realizando un control cruzado de datos, determinó que aparecía como contribuyente de renta, en virtud de supuestos servicios profesionales prestados durante años a algunas empresas. La señora [Nombre5] se presentó a juicio a ratificar lo que ha repetido una y otra vez, no sólo durante el proceso, sino antes de ello, dentro de la investigación administrativa que realizó el Ministerio de Hacienda; esto es, que “nunca brindó estos servicios a las empresas, ni siquiera podía brindarlos en tanto no era ni es una profesional” (p. 130). No hay duda, y ni siquiera ha sido objeto de controversia, de que doña [Nombre5] no fue la autora de las declaraciones autoliquidaciones que figuraron a su nombre en el Ministerio de Hacienda; de hecho, se hicieron las pruebas grafoscópicas pertinentes, confirmando lo anterior. Ante esa realidad irrefutable, derivada tanto del dicho de la propia afectada como de la prueba pericial, cabe preguntarse si se podría tratar del error de algún tercero. Basta un básico análisis para comprender que esa posibilidad debe descartarse in limine, ya que las declaraciones en cuestión son documentos en los que se consignan datos personales de quien figura como declarante. Eso significa que cualquier tercero que hubiera realizado la liquidación, habría tenido que consultar o imponerse de la información personal del declarante y plasmarla en el documento, conociendo que lo hacía. Quien busca y consigna en la declaración información de un tercero, necesariamente está realizando un comportamiento consciente, no una acción irreflexiva o accidental; no se puede completar tales declaraciones sin saber lo que se hace. Ello nos lleva a la persona que presentó las declaraciones falsas: la asistente de contabilidad [Nombre6] . Según el informe que realizara en sede administrativa la Dirección de Inteligencia de la Dirección General de la Tributación, “Se determinó también, del análisis que se realizó al Portal de Tributación Directa, fueron presentados por el usuario [Nombre6] , documento de identidad número CED20” (sentencia, p. 141) y además se precisó: “En cuanto a los supuestos contadores, la investigación puso de relieve los siguientes datos: Se ubicó a [Nombre6] y al señor [Nombre15] , a fin de que aclararan la situación, lo que hicieron el 8 de agosto de 2014. [Nombre15] indicó ser contador y estar inscrito en el colegio respectivo. Negó tener relación con la imputada [Nombre1] e indicó que desconocía a [Nombre5] . La Sección de Inteligencia Tributaria logró establecer a partir de las entrevistas que, el contador originario de las empresas en cuestión fue el señor [Nombre16] , quien había fallecido desde el 4 de junio de 2008 y que la señora [Nombre6] quien era su asistente contable, a partir de su fallecimiento continuó con la cartera de clientes que el (sic) tenía, en la entrevista indicó haber "heredado" esa lista de clientes y que ella era supervisada por su esposo [Nombre15] . Se pudo establecer también que la señora [Nombre6] no es contadora pública, sino que ejercía como auxiliar de contabilidad. Les reconoció conocer a la señora [Nombre1] [Nombre1] y a las empresas y familiares relacionados, con quien mantuvo una relación laboral. Indicó no conocer a [Nombre5] , pero que no obstante sí le ha presentado declaraciones mediante el sistema EDDI y el haber llenado formularios de impuestos a mano” (pp. 141 y 142). De hecho, los recurrentes no parecen tener ningún inconveniente en aceptar la participación de la señora Vargas Jiménez en el hecho, al punto que hacen de ella la piedra angular de su argumentación, pretendiendo descargar, de esa forma, la responsabilidad de [Nombre1] . Habiéndose establecido que dicha presentación y, en algunos casos, la confección manual de los formularios es atribuible a [Nombre6] , cabe preguntar el porqué de tal acción. Evidentemente, al consignar información falsa en las declaraciones y hacerlo durante años, se exponía a ser castigada penalmente, de manera que el sentido común y la experiencia indican que debería tener alguna motivación para hacerlo. Como se dijo líneas atrás, ella reconoció que la imputada [Nombre1] era su cliente; de hecho, citando la investigación, el tribunal indicó: “las empresas les hacen llegar la documentación y ellos confeccionan las declaraciones, al confeccionarlas las entregan a las empresas, se decía que las hacían llegar a doña [Nombre1], se las entregaban en físico, cuando paso a era digital, ellas prepararan (sic) y las subían en el sistema, por eso, ella seguía, ella, a quien le pagaban servicios profesionales era a su esposo” (p. 153). Adicionalmente, las falsedades en las declaraciones de doña [Nombre5] conducen a tres empresas que representa la encartada: Edificio Adrofer Sociedad Anónima, Consultoría ORS y Asociados Sociedad Anónima e Inversiones Beyof Sociedad Anónima (pp. 133 y 134). En efecto, cada vez que se indicó, falsamente, que la señora [Nombre5] brindó servicios profesionales, fue en relación con alguna de esas tres sociedades de las que era apoderada la justiciable. Señaló al respecto el a quo: “Al inicio se pudo constatar que efectivamente, al menos tres empresas reportaron tener como proveedor por servicios profesionales a la señora [Nombre5], destacándo (sic) entre estas a ORS, Beyof y la otra Adrofer. Se realizó el "cruce", ya que estas reportaron hacerle pago por servicios profesionales y por otra parte, se logró establecer, con el estudio de la base de datos de la Tributación, que se contaba con las declaraciones de la señora [Nombre5] : "En las que ella declaraba haber dado servicios a estas tres empresas, a nombre de ella declaró que tenía tres clientes" y por otra parte se obtenía el dato de que estos tres clientes por su parte estaban reportando estos pagos, sobre este particular la testigo dijo: "El cruce era coincidente, ella indica tener esos clientes y los clientes indican tenerla de proveedor."” (p. 151). Había una coincidencia exacta: los montos que en una declaración indicaba la señora [Nombre5] haber recibido por servicios profesionales, eran equivalentes a los que cada empresa decía haberle pagado. Pero como se ha establecido que doña [Nombre5] no realizó las declaraciones presentadas a su nombre, no hubo para ella beneficio alguno. La ganancia era para las empresas que, al reportar el pago de esos servicios, podían deducirlos cuando tributaran sobre su renta; una menor ganancia neta tenía el efecto de disminuir el monto de sus impuestos. Pero la coincidencia no se dio, únicamente, en el contenido de las declaraciones. El tribunal hizo ver que “En cuanto a los deberes formales de la presentación de las declaraciones, se detectaron las siguientes coincidencias: Tienen la misma fecha de presentación. Se presentaron en la misma agencia bancaria. Que a partir del momento en que se exigía su presentación electrónica, tanto las declaraciones de las empresas ORS, ADROFER Y BEYOF, así como las declaraciones de [Nombre5] , se realizaron bajo el código de usuario perteneciente a la señora [Nombre6] . Finalmente, destaca, y es de interés para esta sentencia el hecho que las declaraciones de la señora [Nombre5] , tanto informativas como autoliquidativas, fueron presentadas por [Nombre15] y por [Nombre6] ” (p. 143). Y más adelante agregó: “los formularios respectivos se presentaban simultáneamente: "Se presentaban en la misma agencia bancaria, el mismo día, tanto los de la empresa como los de la señora [Nombre5], incluso ante el mismo cajero y que cuando fueron digitales posteriormente, se presentaba por la misma persona, era misma que los presentaba." Se analizaron también a las personas que de las fórmulas se tenían como los de "contacto", determinándose que la persona que presentaba las declaraciones era la señora [Nombre6] , siendo que esta persona no era ficticia, sino real” (p. 152). Véase, entonces, la sorprendente coincidencia que tendría que haberse dado si las declaraciones hubieran sido efectivamente presentadas por sus legítimos titulares; ello implicaría la casualidad de que quien presenta las declaraciones de las empresas habría coincidido en lugar y hora con la señora [Nombre5] en todos los casos. Cuando se presentó digitalmente, se hizo a través del “usuario” de quien admitió hacer el trabajo de contabilidad para la encartada o del de su esposo [Nombre15] . Todo ello, sin olvidar que quien aparece en las declaraciones como “persona de contacto” es esa auxiliar de contabilidad que, sin embargo, sostenía no haber conocido a la agraviada [Nombre5] (p. 146). Ya se hizo ver que la imputada [Nombre1] representaba a las tres empresas beneficiadas con la existencia de las declaraciones falsas de doña [Nombre5] , que correspondían exactamente con las de las empresas en cuestión. Pero, además, hay constancia de que, a través de los años, confeccionó y firmó muchas de las declaraciones falsas correspondientes a esas empresas. Son ellas las D-101 número [Identificacion3] y D-101 número [Identificacion4], en el año dos mil nueve; D-101 número [Identificacion6], D-101 número [Identificacion7], del período dos mil diez; D-101 número [Identificacion9], del año dos mil once (pp. 185 a 192); también confeccionó las identificadas como D-101 número CED9, D-101 número CED11 y D-101 número CED12, pero por razones que se explicarán en el considerando XII, no se han de tomar en cuenta en este momento. La prueba grafoscópica realizada a las referidas declaraciones permitió establecer, científicamente, que la imputada confeccionó y / o firmó esas declaraciones directamente. Pero como se dijo líneas atrás, la estratagema fue eficaz en la medida en que la falsedad en los gastos de las declaraciones de las empresas calzaba perfectamente con las declaraciones ficticias de doña [Nombre5] , lo que implica que quien confeccionó las primeras debía hacerlo con pleno conocimiento de lo consignado en las segundas; de otra forma, el engaño a la tributación se desmoronaría. Quien, como la encartada, sabía que estaba consignando datos falsos en las declaraciones de renta, tenía que conocer la falsedad concomitante en las declaraciones de la señora [Nombre5], de manera que no hubiera fisuras en el mecanismo ilegal. Pero, además, ello pone en evidencia que conocía los pormenores del procedimiento fraudulento del que, a fin de cuentas, sus representadas eran las grandes beneficiarias. Cuando el proceder ilícito empezó a salir a la luz pública, surgieron nuevos indicios. Uno de ellos es que, también con pasmosa coincidencia, se realizaron acciones encaminadas a borrar los rastros del delito. Se elaboraron declaraciones rectificativas por parte de quien, se reitera, había indicado no tener relación con la señora Otárola: [Nombre6] . Señala el a quo al respecto: “En el informe queda en evidencia que en el caso de [Nombre5] le fueron rectificadas las declaraciones de renta, dejando las declaraciones en cero y las declaraciones informativas fueron anuladas en donde indicaban que Inversiones Beyof había cancelado servicios profesionales a la señora [Nombre5] , dejando en base de datos informativas por un colón, donde se dejó consignado que la señora [Nombre6] , le pago a [Nombre5] la suma de un colón por servicios profesionales, al respecto se indica en el informe: "dejando en evidencia de que el proceso lo realizó la señora [Nombre6] [Nombre6] , la contadora de la señora [Nombre1] y que dijo no conocer a la señora [Nombre5] , por lo tanto, si no conoce a la señora [Nombre5] , cómo es que tiene el acceso de conocer las declaraciones que se habían presentado a nombre de la señora [Nombre5], ya que para realizar una rectificación, debe tener en su poder la información de la declaración que se quiere rectificar, sea esto los datos personales del contribuyente, el número de declaración, o los importes. Esta modificación para borrar el rastro, de que la señora [Nombre5] , no tuvo relación con las empresas de la señora [Nombre1] , logra hacerlo por tres años que fue lo que le permitió el sistema, no así para los años dos mil once" (Cfr. informe de la Dirección de Inteligencia Tributaria, página 58. Agregado al expediente electrónico). Con lo anterior, se plantea el interrogante de cómo pudieron realizar las rectificativas y anulaciones de las declaraciones, debido a que la única forma de realizar estas modificaciones y anulaciones es por medio de las declaraciones originales, no obstante, los contadores no tenían acceso a dicha información” (pp. 143 y 144). Ello es confirmado mediante la declaración del testigo [Nombre17] , investigador de la Dirección de Inteligencia Tributaria, del que el tribunal rescató lo siguiente: “El testigo también se refirió a las declaraciones rectificativas, las que pudo constatar y documentar incluso en el informe como vimos, sobre las mismas indicó que se dieron en el año de 2014, propiamente el día diez de julio, dando cuenta que fue la señora [Nombre6] quien: "ingresa con clave y modifica todas las declaraciones de la señora [Nombre5], el sistema le permitía hacia atrás tres periodos, hasta renta y las declaraciones D-151, todas modificadas el mismo día, julio de 2014, el 20 de agosto, hubo otra modificación en las declaraciones informativas de la señora [Nombre5], el sistema permite aclaraciones rectificativas, se hizo por el monto de un colón, imputaba a [Nombre6] , como si esta señora [Nombre5] le hubiera pagado el importe de un colón, no recuerdo el motivo" , sobre lo que estimó como la razón de este proceder, tomando en cuenta particularmente desde la óptica de la Dirección de Inteligencia era que con esto "quería borrar el rastro del impuesto de esas empresas."” (pp. 146 y 147). Y el tribunal también rescató un detalle importante narrado por el señor [Nombre17] , que pone en evidencia la irregularidad que se pretendía esconder; señala el a quo: “Sobre los alcances de las declaraciones rectificativas, el testigo indicó que en cualquier tipo de declaración, cuando el contribuyente: "Comete un error contable, o en la transcripción se consignaba un dato erróneo, se declaró menos o más ingresos o gastos." Aclaró con respecto a esto que: "No es normal la rectificación por varios periodos y varias empresas y que quieran eliminar un rastro, al ser rectificadas, ya no habían imputaciones entre las empresas, ella hizo las modificaciones [Nombre6], posteriormente hicieron otra rectificación, que esa declaración quedó con corte de un colón, la misma señora le pagó un colón, por un servicio profesional, tratan de dejar en cero lo de [Nombre5] , no podían borrar, lo que hicieron fue rectificar el monto. Imputado para nosotros, como contribuyente solicito un servicio de cualquier tipo o compra de cualquier tipo, adquiero, pago comisiones, alquileres a persona x, pagué ese servicio de tanto monto, la imputación viene a ser que esa persona, viene a decir, sí es cierto, me pago ese monto, o más o menos, se da el cruce de información que llamamos sombra"” (pp. 148 y 149). Karla Salas Corrales, Directora de la Dirección de Inteligencia, se pronunció en un sentido similar, según dejó constando el tribunal de mérito: “Destaca también que cuando se tomó la decisión de realizar las auditorías, las información que se tenía de las declaraciones autoliquidativas de la señora [Nombre5] y de las empresas, era al cuatro de julio, pero el diez de julio se presentaron las declaraciones rectificativas a nombre de esas tres empresas y de [Nombre5] , sobre lo que se pudo constatar de estas declaraciones rectificativas, las testigo da cuenta que: "Cuando se inicia la auditoría, se seleccionaron dos empresas para auditoría, se disponía de las declaraciones, el 10 de julio ingresan esas rectificativas y se elimina el nombre de [Nombre5] y también se corrigieron las declaraciones de [Nombre5] , se corrige, dejaron en cero, ya no tenía ingresos ni gastos y las declaraciones de las empresas se corrigen las declaraciones informativas. La Dirección de Fiscalización, cuando logra iniciar debe partir de la última declaración y para entonces ya no estaba, el trabajo se realiza sobre la última declaración, ya no reportes de la señora [Nombre5] . Los registros no se borran, disponemos entonces de las dos declaraciones, las que se dieron en el periodo correspondiente y luego julio." Además de esta situación, les llamó la atención también el hecho de que se siguiera con el mismo patrón en cuanto a la presentación de los documentos, en el sentido en que fueron presentadas simultáneamente: "mismo común denominador, se presentaron el mismo día y por la misma persona estas declaraciones rectificativas."” (p. 155). Parece obvio que, cuando las rectificaciones obedecen a errores cometidos, son esporádicas. Es prácticamente imposible que se hubiera sido tan torpe como para haberse equivocado en todas las declaraciones formuladas por varios años a nombre de doña [Nombre5] y muy sospechoso que la necesidad de rectificación surgiera cuando se estaba revelando la trama ilícita. Por ello podemos concluir, siguiendo a los especialistas citados, que la rectificación de múltiples declaraciones, además de significar una casualidad prácticamente improbable, resulta un claro indicador del intento de borrar huellas de la actuación irregular. Pero a eso se añade un elemento más, y es que quien se identificó como la contadora de la imputada llamó a la señora [Nombre5] , con turbias intenciones, según hizo ver ésta en juicio. Ello sucedió después que fuera reabierto el caso en contra de la justiciable. Lo que pretendía dicha presunta contadora era que se comunicara con la encartada [Nombre1] , cosa que doña [Nombre5] dice que no hizo en un primer momento, aunque después sí (pp. 170 y 171). Lo que se rescata de ello es la confirmación del conocimiento de [Nombre6] , en primer lugar, y de la encartada, en segundo término, sobre el procedimiento que se había realizado; esta última, a partir del problema que enfrentaba, se quería comunicar con la damnificada. Ese interés en comunicarse se vio satisfecho cuando la encartada logró hablar telefónicamente con la señora [Nombre5] , llamada cuya grabación incluso tuvo cobertura en los medios de comunicación. Como se verá más adelante, este tribunal de apelación considera que el registro de dicha llamada es ilegal. Por ello, no es válido echar mano de ella como prueba. No obstante, el recuerdo guardado en la memoria de la señora [Nombre5] fue suficiente para terminar de confirmar el involucramiento de [Nombre1] en los delitos acusados. Como correspondía a quien había sido descubierta en la comisión de conductas delictivas, la encartada le solicitó a la agraviada que se desdijera, que faltara a la verdad ante una periodista, para que no se revelara toda la trama en la que había participado. El tribunal reprodujo en estos términos las palabras de la testigo, e hizo el respectivo comentario: “"Recibí a la reportera de un canal de televisión y a la semana o a los días, a un periodista de La Nación, conversando con éste periodista, que no entendían cómo una costurera conocía a doña [Nombre1], luego entró la llamada que se hizo pública, en ese momento estaba un reportero de La Extra y uno de La Nación, yo contesté, mi teléfono era viejo, había que contestar en alta voz, mi hijo me había dado un teléfono malo, yo puse teléfono uno al lado del otro a grabar la voz de la señora, el resto es público, ya se sabe el proceso a continuando... En la llamada estaban dos periodistas, de nombre [Nombre4], uno de apellido [Nombre18], ellos escucharon la llamada, eran de La Nación y de La Extra. La llamada me pedía que por favor, -doña [Nombre1] (ella se identificó)- que me desdijera con la periodista, que ella me ayudaba con una pensión y con una casa, era una llamada larga, muchas cosas, que tenía que desdecirme, esto me afectaba, que ella se encargaba de ayudarme con una pensión y con el seguro, estoy parafraseando, las palabras literales no las recuerdo. Yo grabé esa llamada, el reportero también la grabó, esa llamada se hizo pública, esa no fue mi intención, no era la intención de grabarla. Mi intención era, trate de ponerse en mi lugar, una persona sin estudios, sin dinero, sin posición, mi palabra en su mayor parte no valía, tuve que valerme de otra persona para reabrir mi caso, ya archivado, mi intención era que el día que vaya a juicio y yo, con su propia voz aceptando, no mi voz acusándola de un delito tan desagradable, en ese proceso, es su propia voz la que la acusa. El nivel socio económico y político, ella cometió un delito y alguien tiene que hacérselo ver, es la prueba de que yo decía la verdad. Cuando entró esa llamada yo no sabía que era de ella. Decido grabarla, no puedo decir en qué momento, no estaba planeado, lo contesté en alta voz, puse el otro teléfono a grabar al contestarlo en alta voz. Tengo claro que ella quería que yo frenara a la reportera para que no se hiciera público el asunto. Me sentí al recibir esa llamada furiosa, la única palabra que se me ocurre." Y explica que se sintió furiosa porque para ella la señora [Nombre1] era una dama, una señora en todos los campos, a quien veía como un modelo, valiente, de carrera, desempeñándose en el mundo de modo valiosa y se le "derrumbó esa imagen de honorabilidad"” (pp. 172 y 173). Todo lo anterior lleva a una conclusión —como la síntesis a la que se debe arribar— y es que la encartada, conscientemente, formó parte de una organización que llevó adelante múltiples delitos, a través de varios años, con el fin de beneficiar a tre h s sociedades familiares de las cuales era apoderada, realizando actos materiales destinados a consumar los delitos, y teniendo claro que, por medio de interpósita persona, concretaba otros. Se contó, al menos, con la participación de la asistente de contabilidad [Nombre6] , en el desarrollo de las partes operativas, y con la connivencia del esposo de ésta que, en su condición de contador, daba cierta formalidad al registro de las operaciones contables; pero lo que resulta claro, patente y manifiesto es que todas las acciones delictivas terminaban beneficiando, fundamentalmente, a Edificio Adrofer Sociedad Anónima, Consultoría ORS y Asociados Sociedad Anónima e Inversiones Beyof Sociedad Anónima. Ello nos permite enfrentar los reclamos que se rechazan en este apartado, ya que como se aprecia, los recurrentes pretenden excluir la responsabilidad de la encartada amparados en ciertos argumentos comunes, que no resultan de recibo. En primer lugar, se dice en ellos que el tribunal le atribuye a [Nombre1] haber confeccionado y / o presentado las declaraciones. Ello no es exacto; el tribunal dijo en cada caso que la presentación se hizo directamente, o por interpósita persona, lo cual es efectivamente cierto. La participación de la asistente de contabilidad [Nombre6] , que los recurrentes no solo no niegan, sino que reafirman como núcleo de sus reclamos, fue parte esencial de la empresa delictiva llevada adelante, como ya se señaló. Pero como se hizo ver líneas atrás, la operación criminal fue adquiriendo sentido en función de alguien que se beneficiaba de ella, que no era, al menos principalmente, [Nombre6] . Así, cuando en el segundo reclamo, los apelantes refieren que en los hechos probados 1 y 2 del período dos mil nueve, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número [Identificacion1], a nombre de Edificio Adrofer Sociedad Anónima, lo primero que hay que aclarar es que lo que el a quo le atribuyó fue haberla confeccionado, pero no necesariamente haberla presentado; esto último se hizo —dice la sentencia—, personalmente o por interpósita persona. Precisamente, ahí es donde resulta relevante el reconocimiento de [Nombre6] de haber participado en la tramitación de las declaraciones tributarias de la empresa en cuestión, detalle que los impugnantes aceptan pacíficamente. También resulta relevante todo lo dicho líneas atrás, de que su participación no podía ser producto de un error, sino parte de un plan delictivo debidamente orquestado y operativizado. Es a partir de esa participación que se confirma que el haber incluido en la declaración el gasto de tres millones quinientos mil colones fue parte del montaje que, una y otra vez, llevaron adelante las personas involucradas. Precisamente, la participación de [Nombre6] , unido al hecho de que, finalmente, la declaración hubiera servido para reducir el monto imponible de la empresa referida, representada por [Nombre1] , hace ver que la falsedad fue una más de las acciones cuyo conocimiento general fue puesto de manifiesto por la imputada a través de sus conversaciones con [Nombre5] . Es aquí donde se pone en evidencia, a juicio de este tribunal, la importancia de haber procurado, en primer término, reconstruir el panorama general de la acción delictiva y del papel de la encartada dentro de ésta. El análisis fragmentado que plantean los recurrentes en este motivo como en los otros veintinueve que aquí se analizan, resulta evidentemente ineficaz para reconstruir lo ocurrido en realidad. Sí debe señalarse que, en cuanto a la mencionada declaración, el tribunal incurre en un error al referir que fue confeccionada por la justiciable. En realidad, la prueba señala que los elementos de comparación aportados (documentos con firmas y rasgos de escritura de la encartada), son de modelo diferente a los que constan en dicho documento (informe 2015-1402-AED, en Legajo de Investigación parte 14, imágenes 26, 27 y 30). La acusación no tenía esa inexactitud, ya que en ella se consignó que “las acusadas [Nombre1] e [Nombre6] , confeccionaron la Declaración Anual Resumen de Clientes, Proveedores y Gastos Específicos formulario D-151 número [Identificacion1] a nombre de la empresa Edificio ADROFER Sociedad Anónima” (acusación, imágenes 3 y 4), con lo que el Ministerio Público dejó abierta la posibilidad de que la confección en sí hubiera sido realizada por [Nombre6] , como sugieren los recurrentes. No obstante, la imprecisión cometida carece de consecuencias, ya que el uso de falso documento propiamente dicho, que se atribuye a la justiciable, se relata en el segundo hecho acreditado del año dos mil nueve, en el que se afirma acertadamente que la justiciable actuó personalmente o por interpósita persona, lo que es cierto, según el análisis realizado a través de todo este considerando. Afirman los apelantes que la referida declaración no consta en la prueba documental. Ello no es cierto. En el ampo de declaraciones, al folio 250, se aprecia el sobre de manila que contiene la declaración del período dos mil nueve, número [Identificacion1]. El documento consigna, en el espacio de "contribuyente o representante legal", el nombre “[Nombre19]” ([Nombre20]) “” ([Nombre21]) y su número de cédula, así como una firma, todo con aparente tinta de lapicero. Se señala que no se aporta el detalle de proveedores, sino en un anexo. Ciertamente; porque ese es el formato que presenta la Dirección de Tributación del Ministerio de Hacienda para la declaración. Se aprecia un documento denominado "Declaración Anual Resumen de Clientes, proveedores y gastos específicos" al que se adiciona otro identificado como "Hoja de detalle". No obstante, su relación es indubitable, no solo porque corresponden al mismo año y a la misma empresa declarante, sino también porque muestran información coincidente. Así, la declaración refiere a dos servicios profesionales por un total de tres millones seiscientos treinta y tres mil trescientos treinta y tres colones. La hoja de detalle, por su parte, precisa la existencia de dos beneficiarios: [Nombre15] , por ciento treinta y tres mil trescientos treinta y tres colones; y [Nombre5] , por tres millones quinientos mil colones. En otras palabras: la declaración anual de resumen de clientes y proveedores y gastos de Edificio Adrofer Sociedad Anónima del año dos mil nueve coincide perfectamente con la hoja de detalle a nombre de la misma empresa y del mismo año, que simplemente precisa cuáles son esos proveedores de servicios y cuánto se pagó a cada uno. En el tercer reproche los impugnantes reclaman que en los hechos probados 3 y 4 del período dos mil nueve, el tribunal concluyó que la imputada confeccionó y presentó la declaración D 151 número [Identificacion2], a nombre de Consultoría ORS y Asociados Sociedad Anónima. En este caso ello no es cierto, en primer término, porque aquí el a quo sí utilizó la fórmula de la acusación, en la que se indica que la confección del documento fue producto de la colaboración obtenida por la justiciable de la acusada e [Nombre6] [Nombre6] . Así, el que se haya establecido por parte de la Administración Tributaria, como correctamente afirman los recurrentes, que la señora Vargas realizaba y presentaba las declaraciones tributarias de las empresas representadas por [Nombre1] , es algo que vincula a esta última, siguiendo la explicación que se ha dado en este considerando. Así, si bien es cierto que el informe 2015-1402-AED, en sus resultados 64 y 70 (Legajo de investigación parte 14, imágenes 31, 32 y 35), señala que la firma del documento es de modelo diferente a la de la imputada y las características individualizantes de su escritura no se encuentran presentes en la declaración, ello no lleva a desvirtuar su participación en el ilícito. Por otro lado, de nuevo hay que reiterar que la falta de indicación de los proveedores en la declaración D-151 es una particularidad del documento mismo, el cual debe ser complementado por la hoja de detalle en la que se indican tales datos. En el ampo de declaraciones, al folio 296, se encuentra un sobre de manila conteniendo en su interior, entre otras, la Declaración anual resumen de clientes, proveedores y gastos específicos de Consultoría ORS Sociedad Anónima que consigna dos servicios profesionales por un total de tres millones seiscientos treinta y tres mil trescientos treinta y tres colones; además, está debidamente firmada y consigna como emisora a [Nombre1] “[Nombre20]” (sic). La hoja de detalle anexa precisa que tales servicios profesionales fueron prestados por [Nombre15] , por ciento treinta y tres mil trescientos treinta y tres colones y por [Nombre5] , por tres millones quinientos mil colones. Como se ve, la sumatoria de ambos rubros coincide plenamente con el total de la declaración. El cuarto reparo, formula idénticos argumentos en cuanto a los hechos probados 5 y 6 del período dos mil nueve, respecto a la declaración D 151 número [Identificacion19], lo que amerita reiterar la respuesta dada en el punto anterior. En este caso no hay que mostrar a los impugnantes la existencia del documento, ya que aquí no es negada. Lo mismo se ha de decir respecto a la quinta objeción, relacionada con el hecho probado 7 del período dos mil nueve y la declaración D 101 número [Identificacion3], a nombre de Edificio Adrofer Sociedad Anónima; respecto al sexto motivo, que habla del hecho probado 8 del período dos mil nueve, sobre la declaración D 101 número [Identificacion4], a nombre de Consultoría ORS y Asociados Sociedad Anónima; en relación con el sétimo reclamo, atinente al hecho probado 9 del período dos mil nueve, sobre las declaraciones D 101 número [Identificacion20] a nombre de [Nombre5] , D 101 número [Identificacion3] a nombre de Edificio Adrofer Sociedad Anónima y D 101 número [Identificacion4] a nombre de Consultoría ORS y Asociados Sociedad Anónima; y en cuanto al octavo reproche, referido a los hechos probados 1 y 2 del período dos mil diez, sobre la declaración D 151 número [Identificacion5], a nombre de Edificio Adrofer Sociedad Anónima. Ante idénticos argumentos, corresponde reiterar respecto a ellos la respuesta ya brindada. En este último reclamo, referente al año dos mil diez, adicionalmente debe tomarse en cuenta que se repite el alegato de que la declaración no consta en la prueba documental, sino un detalle de declaraciones de terceros, sin la firma de la imputada. Aquí hay que tomar en cuenta la aclaración que hizo la Dirección de Inteligencia Tributaria del Ministerio de Hacienda: "Para el año 2010 se presentó vía electrónica [la declaración], por medio del Declara versión 4.0.2, según información suministrada por la DTIC (que por sus siglas Dirección de Tecnologías de Información y Comunicación) que cuenta con una dirección de correo electrónico: [...], que corresponde al nombre del contacto [Nombre15] , teléfonos 2285-3731. [en virtud de lo cual] Se adjunta impresión del SIIAT de dicha declaración (certificada) número [Identificacion5], presentada el 27 de noviembre de 2010" (ampo de declaraciones, certificación de f. 98). No procede exigir que se presente una declaración física que nunca existió, porque la realizada lo fue por medios informáticos. Por ello se aportó una certificación de la declaración (ampo de declaraciones, certificación de fs. 220 a 222). Ciertamente, el detalle de los proveedores se aprecia en el segundo folio del contenido de la certificación, pudiendo verse la correspondencia exacta entre los dos, ya que el primero habla de dos operaciones por cuatro millones de colones y un millón de colones; en tanto en el detalle se hace ver que el millón corresponde a [Nombre5] y los cuatro millones a Inversiones Regiofe Sociedad Anónima. Como lo hacen ver los apelantes, en este caso la declaración fue presentada por [Nombre6] a través del usuario de su esposo [Nombre15] , lo que no cambia nada de lo considerado hasta ahora. El fundamento del noveno reparo es similar al del octavo, solo que se refiere a los hechos probados 3 y 4 del período dos mil diez, respecto a la declaración D 151 número CED6, a nombre de Consultoría ORS Sociedad Anónima. Valga reiterar, entonces, la inexactitud del recurso, al señalar que se atribuyó a la imputada la confección y presentación del documento, cuando los hechos refieren la coparticipación en la confección por parte de la imputada y de [Nombre6] y la presentación del documento por esta última. De nuevo, es la intervención de ésta, a través del “usuario” de su esposo, lo que confirma, en vez de desvirtuar, el involucramiento de [Nombre1] en el delito, por la vinculación que hubo entre ambas, según se ha venido analizando desde el inicio de este considerando. En cuanto al tema del detalle de proveedores, en el sentido de que ellos están en un anexo, de nuevo hay que indicar que en el año dos mil diez esta declaración fue presentada vía electrónica, por medio de Declara versión 4.0.2, según información suministrada por la Dirección de Tecnologías de Información y comunicación (legajo de declaraciones, certificación de fs. 98 vto. y 99), por lo que se aportó una certificación del registro digital. En ésta claramente se establece, en su primer folio, que la empresa en cuestión realizó dos operaciones de pago por servicios, una por cuatro millones setecientos cincuenta mil colones y otra de cuatro millones. Ambas calzan perfectamente con la hoja siguiente de la certificación, que señala que en ese año, a esa empresa y respecto a esa declaración, prestaron servicios [Nombre5] , por cuatro millones e Inversiones Beyof Sociedad Anónima, por cuatro millones setecientos cincuenta mil colones. Una vez más se reitera el alegato que atribuye al tribunal haber afirmado que la confección y presentación de las declaraciones correspondió a la imputada, en el décimo reproche, referente a los hechos probados 5 y 6 del período dos mil diez, sobre la declaración D 151 número [Identificacion21], a nombre de [Nombre5] . También se reitera en él que la presentación de los documentos fue responsabilidad exclusiva de [Nombre6] , a través del “usuario” de su esposo. Valga entonces contestar, respecto a eso, que lo que se afirma que dijo el tribunal no coincide con la letra de lo indicado en los hechos, como fácilmente se puede verificar, y que la participación de [Nombre6] no excluye, sino que confirma, el involucramiento de la imputada, como amplia y reiteradamente se ha indicado. El décimo primer motivo, referido al hecho probados 7 del período dos mil diez, relacionado con la confección de la declaración D 101 número [Identificacion6], a nombre de Edificio Adrofer Sociedad Anónima, debe recibir un tratamiento ligeramente diferente. Ello se debe a que incluso fue firmado por la encartada, como se estableció pericialmente en el informe DCF 2015-01402-AED de la Sección de Análisis de Escritura y Documentos Dudosos del Departamento de Ciencias Forenses, en su resultado veintiuno (Legajo de Investigación, parte 14, imágenes 10 y 11). Ello, sin perjuicio de reiterar que la participación de [Nombre6] se hizo en colusión con la encartada. Algo similar sucede con el décimo segundo motivo, sobre el hecho probado 8 del período dos mil diez, referente a la declaración D 101 número [Identificacion7], a nombre de Consultores ORS y Asociados Sociedad Anónima, ya que también ahí se cuenta con prueba pericial que establece que la firma visible en el documento es de la imputada, según indica el informe DCF 2015-01402-AED de la Sección de Análisis de Escritura y Documentos Dudosos del Departamento de Ciencias Forenses, en su resultado 27 (imágenes 13 y 14), aunque ciertamente, como indican los apelantes, los manuscritos y números no fueron relacionados con sus rasgos de escritura (imagen 17). En el décimo tercer motivo, referente al hecho probado 9 del período dos mil diez, se dice que el tribunal concluyó que la imputada presentó las declaraciones D 101 número [Identificacion8], a nombre de Inversiones Beyof Sociedad Anónima; la [Identificacion7], a nombre de Consultoría ORS y Asociados Sociedad Anónima; la [Identificacion6], a nombre de Edificio Adrofer Sociedad Anónima y la 101225706772, a nombre de [Nombre5] . No obstante, ello no es cierto, ya que lo que indicó el tribunal es que lo hizo personalmente o por medio de interpósita persona. En todo caso, valga adelantar que, en el considerando XII de esta sentencia, se dará un tratamiento particular a la declaración [Identificacion8], por las razones que ahí se dirán. Igualmente se atribuye al tribunal, en el décimo cuarto motivo, relacionado con el hecho probado 1 del período dos mil once, haber concluido que la imputada confeccionó la declaración D 101 número [Identificacion9], a nombre de Inversiones Beyof Sociedad Anónima, cuando ello no es cierto, ya que el órgano juzgador señaló la existencia de un plan diseñado por [Nombre1] y [Nombre6] para defraudar a la administración tributaria y atribuyó la confección del documento a ellas, pudiendo ser cualquiera de las dos, en tanto el plan era común. Ciertamente, la declaración se hizo por medio del sistema [...], por parte de [Nombre6] , lo que involucra a la aquí juzgada en virtud del plan ampliamente explicado. Idénticas consideraciones a las expuestas en cuanto al motivo anterior son aplicables al décimo quinto motivo, referente al hecho probado 2 del período dos mil once, sobre la declaración D 101 número [Identificacion22], a nombre de [Nombre5] ; al décimo sexto motivo, relacionado con el hecho probado 3 del período dos mil once, atinente a las declaraciones D 101 número [Identificacion9], a nombre de Inversiones Beyof Sociedad Anónima; [Identificacion22], a nombre de [Nombre5] ; [Identificacion10], a nombre de Edifico Adrofer Sociedad Anónima y la [Identificacion11], a nombre de Consultoría ORS y Asociados Sociedad Anónima. También valga adelantar que en el considerando XII, por las razones que ahí se explicarán, se dará un tratamiento particular a las declaraciones [Identificacion10] y [Identificacion11]. En el décimo sétimo motivo, relacionado con el hecho probado 4 del período dos mil once, se dice que el tribunal concluyó que la imputada confeccionó la declaración D 151 número [Identificacion12], a nombre de Inversiones Beyof Sociedad Anónima. Ciertamente, así se indica en el hecho demostrado, cuando en realidad no se acreditó que lo hiciera de propia mano, como se da a entender. Sin embargo, el error fue corregido en la fundamentación, en la que se dejó claro que, como en todo el desarrollo de la actividad delictiva, la imputada actuó en colusión con [Nombre6] (sentencia, p. 192). Esa colusión se acreditó, una vez más, a partir del hecho referido por los recurrentes de que la declaración fue realizada por [Nombre6] mediante el sistema [...]. Se dice que la declaración no consta en la prueba documental, sino un detalle de declaraciones de terceros, sin la firma de la imputada, lo cual obedece, precisamente al hecho de que fue presentada en forma digital. En cuanto al décimo octavo motivo, relacionado con el hecho probado 5 del período dos mil once, atinente a la declaración D 151 número [Identificacion23], a nombre de [Nombre5] , debe volver a calificarse de inexacta la afirmación de que el tribunal atribuyó a la justiciable la confección del documento, cuando se refirió una acción concertada con aquella persona a quien los imputados atribuyen toda la responsabilidad de la acción. La misma respuesta debe darse al décimo noveno motivo, sobre el hecho probado 6 del período dos mil once, relacionado con la declaración rectificativa D 151 número [Identificacion24], a nombre de [Nombre5] ; al vigésimo primer motivo, referente al hecho probado 1 del período dos mil doce, sobre la declaración D 101 número [Identificacion13], a nombre de Inversiones Beyof Sociedad Anónima; al vigésimo segundo motivo, sobre el hecho probado 2 del período dos mil doce, vinculado a la declaración D 101 número [Identificacion14], a nombre de Inversiones Beyof Sociedad Anónima; al vigésimo tercer motivo, referido al hecho probado 3 del período dos mil doce, relacionado con la declaración rectificativa D 101 número [Identificacion25], a nombre de [Nombre5] ; al vigésimo cuarto motivo, sobre el hecho probados 4 del período dos mil doce, referido a la declaración D 151 número [Identificacion15], a nombre de Inversiones Beyof Sociedad Anónima; al vigésimo quinto motivo, que cuestiona el hecho probados 5 del período dos mil doce, vinculado con la declaración D 151 número [Identificacion26], a nombre de [Nombre5] ; al vigésimo sexto motivo, relacionado con el hecho probados 6 del período dos mil doce, sobre la declaración rectificativa D 151 número [Identificacion27], a nombre de [Nombre5] ; al vigésimo sétimo motivo, sobre el hecho probados 1 del período dos mil trece y la declaración D 101 número [Identificacion16], a nombre de Inversiones Beyof Sociedad Anónima; al vigésimo octavo motivo, sobre el hecho probados 2 del período dos mil trece, referente a la declaración D 101 número [Identificacion28], a nombre de [Nombre5] ; al vigésimo noveno motivo, sobre el hecho probado 3 del período dos mil trece y la declaración D 151 número [Identificacion17], a nombre de Inversiones Beyof Sociedad Anónima; al trigésimo motivo, del hecho probado 4 del período dos mil trece, sobre la declaración D 151 número [Identificacion18], a nombre de Inversiones Beyof Sociedad Anónima; y al trigésimo primer motivo, respecto al hecho probado 5 del período dos mil trece, atinente a la declaración D 151 número [Identificacion29], a nombre de [Nombre5] . Finalmente, aunque en el trigésimo segundo motivo, referente al hecho probado 6 del período dos mil trece, sobre la declaración rectificativa D 151 número [Identificacion30], a nombre de [Nombre5] , también se cometió el error en la sentencia de atribuir la confección a la imputada, sin tener fundamento para ello, lo cierto es que en la fundamentación se dejó claro que se trató de una actuación conjunta con [Nombre6] (sentencia, p. 197). Pero, además, sí se dejó claro, en ambos momentos del fallo, que la presentación la hizo esta última. Por todo lo dicho, se impone el rechazo de los motivos referidos.

VI.- Como vigésimo motivo, se alega fundamentación contradictoria. En el hecho probados 7 del período dos mil once, el tribunal concluyó que la imputada confeccionó las declaraciones rectificativas D 151 números [Identificacion31], [Identificacion32], [Identificacion33] y [Identificacion34], a nombre Inversiones Beyof Sociedad Anónima. No obstante, la absolvió por el delito de uso de documento falso, porque dentro de dichas declaraciones no existe ningún elemento que no sea verdadero, porque se eliminan los gastos reportados a nombre de [Nombre5] . Los apelantes consideran un sinsentido que se condenara a su patrocinada por las declaraciones tributarias rectificadas (jurídicamente inexistentes) y se le absolviera por las declaraciones rectificativas que anularon las primeras. El artículo 130 del Código de Normas y Procedimientos Tributarios contempla la declaración rectificativa, que pueden abarcar cualquier rubro, sin limitación. Los recurrentes remiten al artículo 20 de la resolución DGT-R-026-2011 del 30 de setiembre del 2011, de la Dirección General de Tributación. Conforme a la prueba testimonial, cuando el contribuyente realiza una rectificación, la declaración inicial pierde la totalidad de efectos jurídicos, ya que es reemplazada por la nueva. Se imputa a la encartada dos usos de documento falso del período dos mil once, sobre declaraciones inexistentes. Se imputa un delito imposible “en razón de que el objeto del delito imputado ya no existe”. En el artículo 92 del Código de Normas y Procedimientos Tributarios se contempla la declaración rectificativa como una excusa legal absolutoria. No ha lugar. Valga aclarar, también aquí, la imprecisión de los apelantes cuando indican que el tribunal atribuye a la encartada, en el hecho probados 7 del período dos mil once, la confección de las declaraciones rectificativas D 151 números [Identificacion31], [Identificacion32], [Identificacion33] y [Identificacion34], a nombre Inversiones Beyof Sociedad Anónima. La redacción del hecho demostrado atribuye la confección tanto a la imputada como a su colaboradora [Nombre6] . Sin embargo, la particularidad de este reclamo es que ello no constituye el núcleo de la queja, porque por esa confección no se castigó a la encartada. En tanto se trató de declaraciones rectificativas, que corregían falsedades anteriores, se dictó absolutoria en vista de que las mismas ya no consignaban información falsa. Por eso, los impugnantes más bien cuestionan la condena por las declaraciones rectificadas, debido a que, jurídicamente, ya no existen. El primer pilar de la argumentación de los recurrentes es que el artículo 130 del Código de Normas y Procedimientos Tributarios contempla la declaración rectificativa. Ciertamente es así. El numeral referido indica: “Declaraciones rectificativas / Las declaraciones juradas o manifestaciones que formulen los sujetos pasivos se presumen fiel reflejo de la verdad y responsabilizan al declarante por los tributos que de ellas resulten, así como por la exactitud de los demás datos contenidos en tales declaraciones. / Asimismo, los sujetos pasivos podrán rectificar sus declaraciones tributarias, teniendo en cuenta los siguientes aspectos: / a) Cuando los sujetos pasivos rectifiquen sus declaraciones tributarias, deberán presentar en los lugares habilitados para este fin, sin perjuicio de lo dispuesto en el apartado e) de este artículo, una nueva declaración en los medios que defina la Administración Tributaria, y deberán cancelar un tributo mayor cuando corresponda, junto con sus accesorios, tales como intereses fijados para el pago fuera de plazo. / b) Toda declaración que el sujeto pasivo presente con posterioridad a la inicial será considerada rectificación de la inicial o de la última declaración rectificativa, según el caso. / c) La rectificación de la declaración tributaria podrá abarcar cualquier rubro que incida en la base imponible del tributo o en las formas de extinción de la obligación tributaria correspondiente. / d) La rectificación de las declaraciones a que se hace referencia en los párrafos anteriores no impide el ejercicio posterior de las facultades de la Administración Tributaria para fiscalizar o verificar. / e) No procederá presentar declaraciones rectificativas, después de notificado el inicio de un procedimiento de control tendiente a generar una liquidación definitiva. Sin embargo, el sujeto pasivo podrá plantear, a partir de ese momento y hasta la finalización del procedimiento, una petición de rectificación sujeta a la aprobación por parte de los órganos actuantes de la Administración Tributaria. La consecuente aprobación o denegatoria será incorporada directamente en la propuesta de regularización que se le formule al sujeto fiscalizado en los procedimientos de liquidaciones definitivas y en los procedimientos de liquidaciones previas; la aprobación o denegatoria será incorporada en el acto administrativo de liquidación de oficio. / En los procesos de control tendientes a generar una liquidación previa, el contribuyente podrá realizar una única rectificación dentro de los tres días hábiles siguientes a la notificación del acto de inicio de la actuación. Las rectificaciones presentadas después de los tres días hábiles del inicio de la actuación tendrán el carácter de petición, por lo que su aprobación o denegatoria será incorporada en el acto administrativo de liquidación de oficio” (la negrita pertenece al texto original). Se decidió citar íntegramente el artículo, para mostrar que de ninguna forma excluye la posibilidad de que se castigue la falsedad cometida en la declaración rectificada. También se cita el artículo 20 de la resolución DGT-R-026-2011 del 30 de setiembre del 2011, de la Dirección General de Tributación, que dispone: “Rectificación de declaraciones informativas / Dada la importancia que tiene para la Administración Tributaria contar con datos precisos y correctos para la eficiente gestión de los tributos, la declaración informativa que se elabore y presente por medio del programa [...], puede ser corregida por el sujeto pasivo mediante la presentación de una nueva declaración, con el fin de subsanar errores cometidos en el cuerpo de la declaración, cuyo efecto implique un aumento o disminución en la cantidad de registros reportados o correcciones en los montos o en los códigos. / En estos casos, toda declaración que el sujeto pasivo presente con posterioridad a la inicial será considerada rectificación de la inicial o de la última declaración rectificada, según sea el caso, sustituyendo de forma completa la anterior. / Por otra parte, las correcciones a estas declaraciones, en las que el contribuyente manifieste haber cometido errores de información en el encabezado de la declaración informativa, sean estas, en el período (casilla 2), número de cédula (casilla 4), o nombre o razón social (casilla 6), deberá formular por escrito la corrección, indicando al menos, lo siguiente: / a) i. Nombre del contribuyente / ii. Número de la declaración a corregir - consignado en el acuse de recibo de presentación de la declaración en el sitio web de la Administración Tributaria -. / iii. El error de información a corregir / iv. Lugar para notificaciones / v. Firma del contribuyente o representante legal / Este escrito deberá presentarse en el Área de Control Cumplimiento de la Administración Tributaria a la que esté adscrito el obligado respectivo, y para el caso de los Grandes Contribuyentes ante el gestor asignado. / Cuando corresponda a rectificativas de declaraciones informativas elaboradas y presentadas en línea mediante el portal web de presentación electrónica de las declaraciones - formularios D-151 y D-152 conforme lo señalado en el artículo 12 de esta resolución-, deberá sustituirse de forma completa la anterior indicándose obligatoriamente el número de declaración electrónica que se corrige, número que estará consignado en el acuse de recibo de presentación de la declaración en el sitio web de la Administración Tributaria” (negrita del original). De nuevo hay que decir que nada de lo indicado en el artículo permite coincidir con los apelantes, cuando deducen la existencia de un motivo de exclusión de alguno de los elementos del delito. Se acude entonces al artículo 92 del mismo articulado, del que derivan los apelantes la calificación de la declaración rectificativa como una excusa legal absolutoria. Dice el numeral: “Fraude a la Hacienda Pública / El que, por acción u omisión, defraude a la Hacienda Pública con el propósito de obtener, para sí o para un tercero, un beneficio patrimonial, evadiendo el pago de tributos, cantidades retenidas o que se hayan debido retener, o ingresos a cuenta de retribuciones en especie u obteniendo indebidamente devoluciones o disfrutando beneficios fiscales de la misma forma, siempre que la cuantía de la cuota defraudada, el importe no ingresado de las retenciones o los ingresos a cuenta o de las devoluciones o los beneficios fiscales indebidamente obtenidos o disfrutados exceda de quinientos salarios base, será castigado con la pena de prisión de cinco a diez años. / Para los efectos de lo dispuesto en el párrafo anterior debe entenderse que: / a) El monto de quinientos salarios base se considerará condición objetiva de punibilidad. / b) El monto no incluirá los intereses, las multas ni los recargos de carácter sancionador. / c) Para determinar la cuantía mencionada, si se trata de tributos, retenciones, ingresos a cuenta o devoluciones, periódicos o de declaración periódica, se estará a lo defraudado en cada período impositivo o de declaración y, si estos son inferiores a doce meses, el importe de lo defraudado se referirá al año natural. En los demás supuestos la cuantía se entenderá referida a cada uno de los distintos conceptos por los que un hecho imponible sea susceptible de liquidación. / Se considerará excusa legal absolutoria el hecho de que el sujeto repare su incumplimiento, sin que medie requerimiento ni actuación de la Administración Tributaria para obtener la reparación. / Para los efectos del párrafo anterior, se entenderá como actuación de la Administración toda acción realizada con la notificación al sujeto pasivo, conducente a verificar el cumplimiento de las obligaciones tributarias. / La Procuraduría General de la República se constituirá como actor civil en el ejercicio de la acción civil resarcitoria, conforme a lo establecido en el Código Procesal Penal; para ello, deberá contar con la participación técnica activa dentro del proceso penal de la Dirección General de Tributación, que actuará por medio de la Dirección General o en quienes esta delegue la función. Para efectos de cumplir con lo dispuesto en este artículo, se deberán notificar a la Dirección General de Tributación todos los actos del proceso” (la negrita es del original). Basta leer el título de la disposición legal para percatarse que se refiere a un delito totalmente ajeno a aquel por el que la justiciable fue condenada numerosas veces; aquí se habla del fraude a la hacienda pública. Sin mayor precisión, se indica que la prueba testimonial afirma que, cuando el contribuyente realiza una rectificación, la declaración inicial pierde la totalidad de efectos jurídicos, ya que es reemplazada por la nueva y se vuelve inexistente. Más aún, se habla de un delito imposible. Es probable que los apelantes se estén refiriendo al testimonio del abogado [Nombre7] , doctor en derecho tributario, que indica haber revisado el asunto de las sociedades de la imputada en sede administrativa y estar tramitando un proceso contencioso a su favor. Se presume que es a él a quien se refieren los impugnantes, ya que es la persona que citó en su declaración el numeral 130 del Código de Normas y Procedimientos Tributarios, e indicó: “La ley 7900 [que reformó el referido código] establece un sistema mediante el cual se puede cualquier rectificación antes del recurso de revocatoria, a partir de 2012, antes del procedimiento determinativo se puede la rectificación y es una sustitución total por la nueva, la primera desaparece del mundo jurídico y es sustituida por la rectificación. Se desarrolló tomando punto de referencia, fueron las rectificativas, al perder existencia real, estas no las usaron en el procedimiento liquidativo” (sentencia, p. 83). El tribunal combatió la pertinencia de la afirmación, señalando que era aplicable solo a declaraciones autoliquidaciones inexactas, calificativo que no merecían las confeccionadas en este caso. A juicio de esta cámara de apelación, la cuestión es otra. Es posible que la rectificación tenga, para el derecho tributario, los efectos que señaló el testigo [Nombre7] ; no hay por qué dudar de ello, aun tomando en cuenta que el profesional es abogado de las empresas a través de las cuales se incurrió los delitos castigados. Pero los efectos e implicaciones relativas al derecho tributario no son lo que interesa aquí. El tema en cuestión es de derecho penal: ¿la rectificación de una declaración autoliquidación —o de cualquier otra naturaleza— tiene la virtud de eliminar o dejar sin efecto la falsedad plasmada en el documento original o el uso que de aquél se hubiera hecho? La respuesta es negativa. No existe norma jurídica que atribuya esa eficacia a la declaración posterior y mal se haría en buscarla en una ley que no fue diseñada para regular las conductas delictivas correspondientes a la falsedad de documentos, como lo es el Código de Normas y Procedimientos Tributarios. Por lo anterior, sin lugar el reclamo.

VII.- Como trigésimo tercer motivo, se alega errónea inaplicación de los artículos 22 y 75 del Código Penal y se añade que, de mantenerse los hechos probados, se debería estar en presencia de un concurso ideal y no material. La sentencia identifica el objeto de la conducta imputada como un supuesto beneficio patrimonial antijurídico y un daño a la hacienda pública. Es una acción con un único fin, cual es obtener un beneficio económico antijurídico, mediante engaño a la hacienda pública. Hay un único fin, que es defraudar al fisco, por lo que la diferencia de los períodos fiscales es irrelevante; la misma conducta se mantuvo invariable a través del tiempo, sin interrupciones, del año dos mil nueve al dos mil trece. Cita el fallo cuando señala: “No obstante, lo indicada (sic) hasta acá deja en evidencia que, como acciones materiales, no es posible distinguir entre el uso de documento falso y el engaño encaminado a la obtención de un beneficio patrimonial, en este caso existe una sola acción desde el punto de vista natural o físico…” (sentencia, p. 132). A juicio de los recurrentes, ello hace entender la incorrecta aplicación de la normativa sobre concursos. Si el tribunal consideró que se trataba de una sola acción, debió aplicar el concurso ideal. Citan en favor de su tesis el voto 721-2001, de la Sala Tercera de la Corte Suprema de Justicia. A la luz de ese precedente, sostienen que, en el caso de marras, no podría considerarse más de un delito por período fiscal, en tanto el perjuicio del fisco y el beneficio antijurídico se consumarían al momento de la declaración final de renta de cada período. Así, como tesis principal, piden se declare que los treinta y dos delitos castigados mantuvieron una unidad de acción a través del tiempo, con afectación del patrimonio fiscal y concurriendo idealmente. Subsidiariamente, piden que se sancione un uso de documento falso por cada periodo fiscal “afectado en concurso ideal”; con un concurso material entre los cinco concursos ideales. Argumentan que no es posible escindir las conductas con el bien jurídico afectado, de manera que “si el objeto de usar el documento falso fue precisamente afectar el patrimonio fiscal, tal conducta sólo podría lograr una vez al año”, ya que el impuesto se paga anualmente. Sin lugar. Con relación al tema de la unidad de acción y el concurso de delitos, la Sala Tercera de la Corte Suprema de Justicia señaló, en un precedente que se ha replicado una y otra vez, y que sigue constituyendo la línea jurisprudencial de ese órgano sobre el tema, lo siguiente: “De los artículos 21, 22, 23, 75, 76, y 77 del Código Penal se colige que el criterio fundamental para resolver el problema de este "concurso de delitos" radica en la definición de qué es "una sola acción u omisión" o "una misma conducta" (cfr. artículos 21 y 23, de ahí que el número de "resultados" no tiene nada que ver con el número de conductas y de delitos). En este sentido se ha afirmado que: «El problema común a todos los supuestos citados es determinar cuándo hay una o varias acciones. De entrada, hay que excluir la identificación entre acción y movimiento corporal y la identificación entre acción y resultado. Una sola acción, en sentido jurídico, puede contener varios movimientos corporales (por ejemplo, violación intimidatoria, robo con fractura) o dar ocasión a que se produzcan varios resultados (hacer explosionar una bomba causando la muerte de varias personas). Son, pues, otros los factores que contribuyen a fijar el concepto de unidad de acción. El primero de ellos es el factor final, es decir, la voluntad que rige y da sentido a una pluralidad de actos físicos aislados (en el asesinato, la voluntad de matar unifica y da sentido a una serie de actos, como comprar y cargar la pistola, acechar a la víctima, apuntar o disparar; o, en el hurto, la voluntad de apropiarse de la cosa unifica y da sentido a los distintos actos de registrar los bolsillos de un abrigo). El segundo factor es el normativo, es decir, la estructura del tipo delictivo en cada caso en particular. Así, aunque el factor final que rige un proceso causal sea el mismo (matar a alguien), alguno de los actos particulares realizados puede tener, aisladamente, relevancia para distintos tipos delictivos (así, por ejemplo, la tenencia ilícita de armas de fuego para el delito de tenencia ilícita de armas). Y, a la inversa, actos aislados, cada uno regido por un factor final distinto, pueden tener relevancia típica solo cuando se dan conjuntamente (la falsificación de documentos privados solo es típica si se realiza con ánimo de perjudicar o perjudicando a un tercero) o tener una relevancia típica distinta (por ejemplo, robo con homicidio). Cuando una sola acción, determinada con los criterios señalados aquí, realiza un solo tipo delictivo, tenemos el caso normal. Cuando una sola acción o varias acciones realizan varios tipos delictivos, surgen los problemas concursales» (MUÑOZ CONDE, Francisco: Teoría general del delito, Valencia, Tirant lo blanch (sic), 1991, pág. 194). Nuestra doctrina señala que la unidad de acción es un concepto jurídico, que así como es erróneo tratar de definir la unidad de acción con prescindencia de la norma, así también sería equivocado tratar de definir la unidad de acción con prescindencia del hecho, sin darle el lugar subordinado que le corresponde como contenido de la norma: "...no es la unidad natural de acción la que dice cuando hay una acción en sentido legal; puede ocurrir, más bien, que una acción en sentido natural constituya legalmente una pluralidad de acciones o que una pluralidad de acciones en sentido natural constituya legalmente una sola acción. La separación entre unidad de acción y pluralidad de acciones solamente es posible mediante una interpretación del sentido del tipo penal realizado" ([Nombre11]: El Concurso..., págs. 19 a 20). La adopción del factor final (plan unitario que de sentido a una pluralidad de movimientos voluntarios como una sola conducta) y del factor normativo (que convierta la conducta en una unidad de desvalor a los efectos de la prohibición) como criterios para dilucidar cuándo hay una y cuándo varias conductas (ya se trate de acciones u omisiones) es ampliamente aceptada por la doctrina actual (así, ZAFFARONI, Op. cit., págs. 619 a 620; VELASQUEZ, Op. cit., págs. 584 a 588; [Nombre22] , Santiago: Derecho Penal Parte General, Barcelona, Promociones y Publicaciones Universitarias S.A., 1990, págs. 720 a 724; [Nombre23], Enrique: Principios..., pág. 280) y, en la medida que racionaliza fundadamente la aplicación de la ley sustantiva a partir del axioma de que la esencia del delito es la lesión a un bien jurídico tutelado, es adoptada por los suscritos (Sala III, v. 943-98, de las 16:16 hrs. del 29 de setiembre de 1998). En la línea formulada en esa resolución, es prácticamente pacífico el criterio de los tribunales de nuestro país de que, para efectos de establecer la existencia de una unidad de acción, resulta tan importante determinar la finalidad que motivó la conducta del autor como las implicaciones que derivan de la estructura del tipo penal involucrado. A juicio de esta cámara, los impugnantes cometen un error al obviar esas consideraciones en su alegato. En primer lugar, se equivoca el análisis del factor final. La finalidad, para estos efectos, no puede ser ajena al delito castigado; en este caso, el uso de falso documento. Acreditada la existencia del delito, se debe tener claro que el fin de la imputada era afectar la fe pública usando documentos falsos. Los apelantes, sin embargo, se remiten a otras finalidades relacionadas con un delito de fraude a la hacienda pública que ni siquiera se acusó y con una obtención de beneficio patrimonial que no se relaciona con el núcleo del reproche que se hizo a la encartada. Para estos efectos, el propósito de defraudar al fisco resulta tan irrelevante como el objetivo que la imputada pretendía satisfacer con el dinero obtenido; en ambos casos, se trata de propósitos jurídicamente intrascendentes, por su naturaleza meramente subjetiva. Son objetivos personales ajenos al análisis de la acción desde el punto de vista jurídico, única que puede interesar para establecer cómo concurren los delitos cometidos. El segundo error está en dejar de lado el factor normativo. El artículo 372 del Código Penal dispone que "Será reprimido con uno a seis años de prisión, el que hiciere uso de un documento falso o adulterado". Esa disposición legal describe una conducta que se consuma al hacer uso del documento; cuando ello se concreta, la acción culmina, no pudiendo constituir una unidad con un hecho posterior. La sola finalidad del agente no tiene la virtud de dar unidad a una serie de hechos materialmente inconexos. El voto de la Sala Tercera de la Corte Suprema de Justicia que citan los recurrentes no concierne al asunto bajo examen, sino que se refiere a los indicadores que permiten distinguir un delito continuado de una concurrencia material de conductas delictivas. Sin embargo, un fragmento del mismo toca un tema de mera racionalidad jurídica, y por ello permite reforzar lo que aquí sostiene este tribunal. Señala la Sala: "¿Cuál es el criterio que permite diferenciar entre un delito continuado y un concurso material de delitos? Considera esta Sala que debe consistir en que la finalidad que persigue el autor, en relación a los bienes jurídicos que está afectando con sus acciones, sea incompatible con la naturaleza del concurso material. De otra manera, se llegaría al absurdo de que el autor habitual de robos, por ejemplo, tendría la oportunidad de unir con su “finalidad” (la decidida habitualidad en el robo) hechos sin ninguna otra relación entre sí, a los que corresponde la pena del concurso real o material de delitos y no la de un solo delito continuado: sería absurdo porque se favorecería injustamente a quien mayor desprecio manifiesta de hecho hacia los bienes jurídicos patrimoniales, dada su habitualidad o reincidencia, siendo que la figura del delito continuado es una excepción sui géneris a las reglas del concurso material, tanto así que la ley dispone que solo es aplicable si se afectan bienes jurídicos patrimoniales. De ahí que la doctrina señale que la aplicación del delito continuado está sujeta a criterios subjetivos y objetivos. En este sentido señala [Nombre8] que: «Inicialmente se parte de un criterio subjetivo: la unidad de designios del autor (el cajero del banco que, decidido a reunir una determinada cantidad de dinero, lo procura sustrayendo sumas menores de la caja en distintas oportunidades). Pero, si nos conformásemos con ese criterio para determinar la dependencia, otorgaríamos al autor la injusta oportunidad de unir con su designio los hechos más dispares, merecedores de la pena del concurso, y no de la de un solo delito, por lo cual tenemos que completarlo con criterios objetivos [...]»[Derecho Penal Parte General, Editorial Astrea, Buenos Aires, 1988, págs. 241 a 242]" (Sala III, v. 721-01, de las 9:20 hrs. del 20 de julio del 2001). Reiterando que el tema central tratado por la Sala en esa resolución es muy distinto al que aquí nos ocupa, valga sin embargo el hecho de que los recurrentes lo traen a colación para reafirmar lo siguiente: no es prudente hacer depender de la mera voluntad del autor la determinación de si incurrió en una o varias acciones. El tema es de orden jurídico y no puede obviarse el contenido de la norma infringida (factor normativo). Los apelantes hacen una cita del fallo del a quo, que a esta cámara le parece sacada de contexto. Para comprender lo que expresó el tribunal de mérito, es necesario ampliar la transcripción. Dijo éste: "Las acciones concurren materialmente, en total se insertaron datos falsos en treinta y dos documentos, lo que determina la falsedad de los mismos, de ello tuvo pleno conocimiento la encartada [Nombre1] , propiamente del contenido falso, pues correspondían a una maquinación artificiosa para deformar la realidad para así beneficiar a las empresas y perjudicar a la Hacienda Pública, es decir, se ejecutaron actos engañosos motivados por el ánimo de lucro injusto, con el cual se indujo a error a los órganos de supervisión tributaria y produjeron un perjuicio a la Hacienda Pública, porque finalmente, si bien no se ha realizado una determinación o fijación tributaria, lo cierto es que sí se declaró menos impuesto, lo cual surge como consecuencia lógica e ineludible, pues las acciones llevaron a una disminución en la renta bruta y la consecuente disminución de la carga tributaria. Esta afectación generada, es a su vez una consecuencia directa del error en que se indujo a la destinataria de las operaciones, sea la institución que por ley le compete el control, verificación y fiscalización de las obligaciones tributarias, al hacerle creer que se habían verificado pagos por servicios profesionales a la señora [Nombre5] . Ciertamente no se acusó el delito de "Fraude a la Hacienda Pública", previsto en el artículo 92 del Código de Normas y Procedimientos Tributarios, que es una Defraudación Tributaria, un tipo penal de naturaleza especial, lo cual se descartó en la investigación preparatoria a cargo del Ministerio Público, porque este tipo penal establece dentro de los elementos objetivos, que la cuantía de la cuota defraudada debe superar los quinientos salarios base. No obstante, lo indicada hasta acá deja en evidencia que, como acciones materiales, no es posible distinguir entre el uso de documento falso y el engaño encaminado a la obtención de un beneficio patrimonial, en este caso existe una sola acción desde el punto de vista natural o físico" (sentencia, pp. 131 y 132, resalte nuestro). Por lo menos dos conclusiones se pueden sacar de lo dicho por el tribunal en ese fragmento: i) que tiene claro que se dieron treinta y dos acciones delictivas distintas que configuran usos de falso documento; ii) que, a su juicio, entre el uso de falso documento (cada uno de ellos) y el engaño al fisco con consecuencias patrimoniales, se constituye una acción desde el punto de vista natural o físico. Casi sobra decir, porque es ampliamente aceptado, que la doctrina ha evolucionado para desligarse de las consideraciones meramente naturales o físicas al establecer la unidad de acción. Además, aún si se partiera que el tribunal de mérito aprecia un concurso ideal entre conductas —que, a juicio de esta cámara, no es el caso—, sería, a lo sumo, entre cada falsedad y cada fraude a la hacienda pública verificado, postura por lo demás absurda, habida cuenta de que, como ya se dijo, la justiciable no fue condenada por fraude alguno. Lejos estuvo el tribunal de mérito de dar pie a la interpretación de los impugnantes, de que el interés de defraudar que mantuvo la encartada durante los cinco años examinados constituye una unidad y por ello concurren idealmente, o que deben considerarse unitariamente las falsedades cometidas cada año. Tampoco es el perjuicio causado al fisco al terminar cada período de renta el que fija el término de cada acción, como se sugiere; el tipo penal aplicado a la encartada castiga el uso del documento, con independencia de cuándo se concreta el perjuicio, al finalizar toda la elaboración delictiva. Si en el camino se falsificaron varios documentos para lograr el objetivo antijurídico, la ley dispone que cada conducta debe ser sancionada independientemente. Por lo dicho, sin lugar el reproche.

VIII.- Como trigésimo cuarto reclamo, se alega ilegítima incorporación probatoria de una grabación telefónica. Sostienen los impugnantes que la incorporación de la grabación realizada por la señora [Nombre5] violentó los derechos de intimidad, libertad, secreto de las comunicaciones y legalidad respecto a su cliente, ya que no se cumplieron las disposiciones de la Ley sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones número 7425. La señora [Nombre5] no pidió a la imputada autorización para grabar la conversación, lo que invalida la prueba. El Ministerio Público introdujo la probanza, alegando que la encartada había coaccionado a la señora [Nombre5] , pero quedó demostrado que mediante dicha grabación no se cometió ningún delito. Hay una contradicción en el tribunal, por afirmar que la grabación se dio por la “presunta comisión de un delito”, cuando la imputada fue absuelta por el delito de coacción. El artículo 29 de la ley 7425 solo permite la grabación ante la comisión de un delito, no por la presunta comisión. La excepción de la norma se refiere a los delitos que se cometan en el transcurso de la comunicación y que sean regulados por la ley 7425, es decir, que permitan intervención de comunicaciones. En el primer motivo de su impugnación, la encartada [Nombre1] también reclama falta de fundamentación de la sentencia condenatoria, en relación con la grabación de la llamada telefónica. Se ampara en los artículos 142 y 363 inciso b) del Código Procesal Penal; 39 de la Constitución Política; 8 de la Convención Americana sobre Derechos Humanos y jurisprudencia de la Corte Interamericana de Derechos Humanos. Afirma que, durante el juicio, la defensa objetó la grabación de la llamada hecha el tres de julio del dos mil catorce, que en su criterio no se encontraba autorizada por la Ley sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones (número 7425). Por el contrario, la grabación de una llamada telefónica está prohibida por el artículo 198 del Código Penal. Una conversación privada no puede ser grabada ocultamente, como lo hizo [Nombre5] . Siendo ilegal la grabación de la llamada, no podía ser utilizada como prueba. El artículo 24 de la Constitución Política establece el principio de inviolabilidad de las comunicaciones privadas, que tiene como excepción solo lo dispuesto en el artículo 29 de la Ley 7425. Esa excepción ocurre cuando se está cometiendo un delito. Considera la recurrente que lo que determina la legalidad de la grabación no es el análisis a posteriori de su contenido, sino si antes de ella se estaba legitimado para grabar, por la comisión de un delito. Así, considera que la sentencia incurre en falta de fundamentación al resolver sobre la legalidad de la grabación realizada por [Nombre5] . Para justificar su decisión, el tribunal invoca el principio de libertad probatoria, cuando este presupone que la prueba sea legal, lo que no ocurre con una grabación que contraviene el artículo 198 del Código Penal y no se encuentra dentro de la excepción del artículo 29 de la Ley sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones. Se acude también al artículo 28 de la Constitución Política, norma de carácter indeterminado que no justifica la grabación de una conversación telefónica y que no tiene relación con la autorización de conversaciones sin consentimiento. El artículo constitucional relacionado con las comunicaciones orales es el 29, que establece su inviolabilidad como principio, salvo excepción legal, como es la contemplada en el artículo 29 de la Ley 7425. Dice la sentencia que la señora [Nombre5] había recibido llamadas insultantes previas. Pero cuando decidió grabar sabía que hablaba con la imputada y no con personas que llamaban para insultar y no justificó la grabación en virtud de las llamadas insultantes. Dice la sentencia que la imputada le solicitó a doña [Nombre5] que debía desdecirse de lo que le dijo a la periodista [Nombre24]. Sin embargo, ello no fue la razón por la que la señora [Nombre5] decidió grabar la conversación; antes de la grabación no se le había indicado que tenía que desdecirse, así que la justificación no fue anterior a la grabación; adicionalmente, tal solicitud no implica la comisión de un delito. Se argumenta que había una denuncia presentada ante la fiscalía y que la causa había sido reabierta, pero ello no autorizaba, de acuerdo con el artículo 29 de la Ley sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones, que se grabara la conversación. Sostiene el tribunal que, por lo dicho en la conversación, se acusó a la imputada por el delito de coacción. Con ello se incurre en el error de hacer depender la legalidad de la grabación de la decisión del Ministerio Público de acusar. Además, lo que determina la legalidad de la grabación es que antes de la misma se estuviera legitimado para grabar, no el resultado de un análisis a posteriori. Asimismo, se deja de considerar que, por ese delito, la justiciable fue absuelta. Ante la absolutoria por duda, haciendo una interpretación favorable al reo, no podría considerarse la coacción para justificar la grabación. De la declaración de [Nombre5] no puede deducirse que, antes de la llamada, hubiera recibido ningún tipo de coacción. A partir de la primera llamada que mantuvo la imputada con doña [Nombre5] , no podría justificarse la grabación de la segunda llamada. Debe tomarse en cuenta que la imputada negó, durante el juicio, haber realizado una actuación dolosa y el tribunal dedujo ese dolo a partir de la grabación. Como lo reconoció el propio a quo, el registro de la comunicación cumplió un papel esencial en el dictado de la condenatoria. Por ello pide se declare con lugar el motivo y se anule la sentencia en su totalidad, incluyendo lo referente a la acción civil y a las costas; que, por economía procesal, se anule la grabación del tres de julio del dos mil catorce y se disponga la absolutoria y la declaratoria sin lugar de la acción civil resarcitoria; asimismo, que se condene en costas al Estado; subsidiariamente, que se disponga el reenvío. Por su unidad temática, se conocerán conjuntamente los motivos referidos en este considerando, declarándose los mismos con lugar, con las consecuencias que se dirán. Como bien lo señalan los recurrentes, el artículo 24 de la Constitución Política de la República de Costa Rica señala: “Se garantiza el derecho a la intimidad, a la libertad y al secreto de las comunicaciones. Son inviolables los documentos privados y las comunicaciones escritas, orales o de cualquier otro tipo de los habitantes de la República. Sin embargo, la ley, cuya aprobación y reforma requerirá los votos de dos tercios de los Diputados de la Asamblea Legislativa, fijará en qué casos podrán los Tribunales de Justicia ordenar el secuestro, registro o examen de los documentos privados, cuando sea absolutamente indispensable para esclarecer asuntos sometidos a su conocimiento. / Igualmente, la ley determinará en cuáles casos podrán los Tribunales de Justicia ordenar que se intervenga cualquier tipo de comunicación e indicará los delitos en cuya investigación podrá autorizarse el uso de esta potestad excepcional y durante cuánto tiempo. Asimismo, señalará las responsabilidades y sanciones en que incurrirán los funcionarios que apliquen ilegalmente esta excepción. Las resoluciones judiciales amparadas a esta norma deberán ser razonadas y podrán ejecutarse de inmediato. Su aplicación y control serán responsabilidad indelegable de la autoridad judicial. / La ley fijará los casos en que los funcionarios competentes del Ministerio de Hacienda y de la Contraloría General de la República podrán revisar los libros de contabilidad y sus anexos para fines tributarios y para fiscalizar la correcta utilización de los fondos públicos. / Una ley especial, aprobada por dos tercios del total de los Diputados, determinará cuáles otros órganos de la Administración Pública podrán revisar los documentos que esa ley señale en relación con el cumplimiento de sus competencias de regulación y vigilancia para conseguir fines públicos. Asimismo, indicará en qué casos procede esa revisión. / No producirán efectos legales, la correspondencia que fuere sustraída ni la información obtenida como resultado de la intervención ilegal de cualquier comunicación”. Por su parte, el artículo 29 de la Ley sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones, número 7425 del nueve de agosto de mil novecientos noventa y cuatro señala: “No existirá intromisión ilegítima cuando el titular del derecho otorgue su consentimiento expreso. Si son varios los titulares, deberá contarse con el consentimiento expreso de todos. Este consentimiento será revocable en cualquier momento. / Cuando la persona que participa en una comunicación oral, escrita o de otro tipo, mediante la cual se comete un delito tipificado por la ley, la registre o la conserve, esta podrá ser presentada por la persona ofendida, ante las autoridades judiciales o policiales, para la investigación correspondiente. / Si las comunicaciones indicadas en el párrafo anterior han servido a las autoridades jurisdiccionales para iniciar un proceso penal, las grabaciones de tales comunicaciones o los textos que las transcriben podrán presentarse como pruebas ante el juez, en el juicio correspondiente”. Del contenido de ambas disposiciones legales se debe concluir, para los efectos que aquí interesan, que el registro de una conversación solo es legítimo cuando a través de ella se comete un delito, pudiendo en tal caso presentarla la persona ofendida ante las autoridades. Valga aclarar que puede ser cualquier delito y no necesariamente uno de aquellos por los que se permite la intervención de comunicaciones en la ley 7425, como sugieren los defensores recurrentes (véase en tal sentido, de la Sala III, el v. 48-01, de las 11 hrs. del 12 de enero del 2001). Lo cierto es que, si no se está en la hipótesis de la existencia de un delito, el registro de la conversación no tiene amparo legal y, en consecuencia, no podría ser utilizado en un proceso penal, en virtud de la limitación que imponen los artículos 181 y 182 del Código Procesal Penal al empleo de prueba ilícita. Incluso, se podría llegar a incurrir en la conducta contemplada en el artículo 198 del Código Penal, que refiere: “Será reprimido, con prisión de uno a tres años, quien grabe sin su consentimiento, las palabras de otro u otros, no destinadas al público o que, mediante procedimientos técnicos, escuche manifestaciones privadas que no le estén dirigidas, excepto lo previsto en la Ley sobre registro, secuestro y examen de documentos privados e intervención de las comunicaciones. La misma pena se impondrá a quien instale aparatos, instrumentos, o sus partes, con el fin de interceptar o impedir las comunicaciones orales o escritas, logren o no su propósito”. En el caso bajo examen, la grabación de la conversación sostenida por la imputada con la señora [Nombre5] el tres de julio de dos mil catorce, a partir de las quince horas cuarenta y cinco minutos, que fuera registrada por la segunda sin el consentimiento de la primera, es abiertamente ilegal, ya que no se estaba cometiendo un delito a través de ella, como exige la norma recién transcrita. A juicio de esta cámara, los argumentos a los que acude el tribunal de juicio para justificar su validez no son de recibo. Se dice, que la inclusión del registro encuentra amparo en la libertad probatoria. No obstante, la legislación procesal señala al respecto: “Los elementos de prueba sólo tendrán valor si han sido obtenidos por un medio lícito e incorporados al procedimiento conforme a las disposiciones de este Código” (artículo 181 del código de rito); asimismo que: “Podrán probarse los hechos y las circunstancias de interés para la solución correcta del caso, por cualquier medio de prueba permitido, salvo prohibición expresa de la ley” (artículo 182 ibídem). Así, la libertad probatoria encuentra un límite infranqueable en la legalidad de la obtención e incorporación del medio de prueba. En este caso particular, como se indicó, la legalidad de la obtención del registro depende de la comisión de un delito a través de la comunicación, requisito ausente acá. También aduce el tribunal que previamente se había llamado a la señora [Nombre5] para insultarla, sin explicar por qué ello permitiría obviar el requisito impuesto por la ley, de que a través de la llamada concreta que se graba se esté cometiendo un delito. También se dice que para el momento de la llamada se había presentado una denuncia ante la fiscalía, que incluso llevó a acusar la presunta comisión de un delito. No obstante, la simple lectura del artículo 29 de la Ley sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones, pone en evidencia que el requisito de validez del registro no es la presentación de una denuncia ni la presunta comisión de un delito, sino su efectiva comisión durante el intercambio comunicativo; lo primero se descarta por su notoria incompatibilidad con la letra de la norma, y lo segundo, por la peligrosa indeterminación que implicaría hablar del delito en términos de presunción: ¿presunto para quién?, ¿para el que graba la comunicación?, ¿para el fiscal?, ¿valorado en qué momento?, ¿antes de la llamada o ex post? De alguna manera la imputada, en su recurso, también introduce algún grado de subjetividad en el análisis del artículo, al afirmar que la determinación de la existencia del delito debe establecerla el receptor antes de recibirla. Ello tampoco se desprende de la letra de la disposición legal. La legitimidad de la grabación no depende del buen criterio que muestre el que participa en la conversación, al valorar la ilicitud; menos aún, de lo acertado de su especulación sobre el contenido eventual de la llamada que apenas recibe; tampoco de su buena intención. Teóricamente, nada excluye que un interlocutor de mala fe grabe una conversación en que el otro cometa un delito; en tales condiciones, la intención inicial no inhibe la validez del registro. Lo que interesa, pura y llanamente, según el texto legal, es que se cometa un delito a través de la comunicación. Lo cierto del caso es que aquí el delito no existió, ya que en la misma sentencia que se recurre se absolvió a la encartada por la coacción que se le venía atribuyendo como cometida a través de la llamada. Así, si la prueba es ilegítima, no podía utilizarse en juicio. En lo que no ha de coincidirse con los recurrentes es en el carácter esencial que se atribuye a la grabación como parte del elemento probatorio; en ello, incluso se discrepa de la opinión del mismo tribunal de mérito. Lo cierto es que las manifestaciones fundamentales vertidas por la imputada en la conversación que se grabó fueron expuestas por doña [Nombre5] en su declaración en juicio. Además, a ello se sumó el resto del material probatorio analizado por el a quo. La forma en que la prueba involucró a la encartada [Nombre1] , sin necesidad de acudir a la grabación, ya fue expuesta por esta cámara en el considerando V, al que se remite para evitar repeticiones innecesarias. El prescindir de ese elemento de prueba no cambia la conclusión sobre la responsabilidad de la encartada, ni penal, ni civil. Consecuentemente, lo que ha de disponerse es, únicamente, la ineficacia del registro realizado por [Nombre5] , de la conversación que sostuvo con la imputada [Nombre1] el tres de julio de dos mil catorce. En esos términos se acogen los motivos aquí valorados.

IX.- Como trigésimo quinto motivo, se alega falta de fundamentación de la imposición de la pena. El tribunal realizó una fundamentación meramente moralista, contraria a los principios de proporcionalidad, racionalidad, humanidad y resocialización de la pena. El a quo es contradictorio cuando toma en cuenta la labor pública de la imputada para imponer la sanción, pero rechaza el daño social, alegando que cometió los hechos delictivos como una ciudadana particular y no como funcionaria. El tribunal no consideró los aspectos personales de la imputada, quien tiene setenta años y ha sido cooperadora con el proceso. Además, no tiene juzgamientos pendientes. En el sexto reclamo del recurso que interpone la imputada, se invoca falta de fundamentación de la pena impuesta, al amparo de los artículos 142 y 363 inciso b) del Código Procesal Penal, 71 del Código Penal y 39 de la Constitución Política. La sentencia indica que los parámetros para fijar la pena por cada delito son los mismos, por lo que hace una fundamentación global. Pero entonces se utilizan los treinta y dos delitos para fundamentar cada uno de ellos, en vez de hacerlo de manera independiente, como corresponde en un concurso material. Cada hecho se vuelve agravante de los otros treinta y uno, lo que deriva en una pena desproporcionada de tres años por cada uno, noventa y seis por los treinta y dos, y nueve, por aplicación de las reglas concursales. Considera que deben tenerse en cuenta los alegatos hechos en los motivos segundo, tercero, cuarto y quinto de su recurso que, a su juicio, llevan a que una serie de hechos por los que se dictó condenatoria y que sirvieron de base para poner una pena de tres años por cada delito deban ser anulados, lo que tendría incidencia en el monto de la sanción. También el daño al fisco es considerado en forma global, en vez de valorar cada daño de manera independiente. Así, el producido con cada uno no solo se utiliza para fijar su pena, sino también la de los otros. Aunque no lo dice expresamente, la sentencia utiliza el informe 233-DEF-A-425-16 del Organismo de Investigación Judicial, pero no lo analiza, sino que hace una referencia global. No considera siquiera que en él se incluyen impuestos correspondientes a los años dos mil cuatro a dos mil ocho, por los cuales se dictó sobreseimiento definitivo. Respecto a las declaraciones de la empresa Inversiones Adrofer Sociedad Anónima en el dos mil diez, se le condeno por los hechos 7, 9 y 10 a una pena de tres años de prisión por cada uno, atendiendo al monto de defraudación al fisco. Pero según el informe, solo se dejó de pagar cien mil colones en el dos mil diez, por dicha empresa. Se le condenó en el hecho 16 por una declaración del dos mil once, pero el informe no fija monto dejado de pagar. También se condenó en el hecho 17 por la declaración de la empresa Consultoría ORS y Asociados Sociedad Anónima del dos mil once, pero el informe no señala que se hubiera dejado de pagar impuestos por ella. En cuanto a las declaraciones de Inversiones Beyof Sociedad Anónima del dos mil diez, se le condena en el hecho 12, pero el informe dice que no correspondería pago de impuestos en ese año. Incluso, los montos que se habrían dejado de pagar por tres millones doscientos noventa y siete mil novecientos noventa y nueve colones con treinta céntimos no es alta, tomando en cuenta que corresponde a los años dos mil nueve a dos mil trece, considerando la cantidad de hechos y el monto mínimo del delito de defraudación fiscal del artículo 92 del Código de Normas y Procedimientos Tributarios que es de quinientos salarios, muchas veces el monto de lo que podría haberse dejado de pagar en este asunto. La sentencia reconoce que el hecho juzgado no es un delito de defraudación fiscal, pero le da importancia a la defraudación fiscal, sin considerar los parámetros establecidos en cuanto al monto requerido para la existencia de un delito de ese tipo. El daño al fisco no es siquiera objeto de este proceso, ya que corresponde a una sanción administrativa. La sentencia no consideró los pagos hechos en compensación a los impuestos dejados de pagar como un aspecto positivo. Más bien, se valoraron las rectificaciones para justificar una pena mayor, afirmando que se pretendía una maniobra para librarse de responsabilidad. Pero ello no tiene fundamento porque, aunque se corrijan los montos fiscales, deben pagarse los impuestos conforme a la declaración correctiva, sin que se elimine la documentación de la declaración original, que queda en la base de datos. Tampoco se considera que las treinta y dos condenas fueron por usos de documentos privados y no públicos, lo que implica un desvalor menor, según el Código Penal. La ilegitimidad de la grabación utilizada por [Nombre5] impide tomarla en cuenta para la fijación de la pena. En cuanto a la grabación, se hacen valoraciones relacionadas con la moral. Consideró el tribunal la petición de la imputada a [Nombre5] , de que se fuera a desinscribir ante la Dirección General de Tributación Directa; sin embargo, ello no implica delito alguno. La consideración de la preparación académica y condición de la imputada debe relacionarse con los montos que habría dejado de pagar. El tribunal dice que toma en consideración las condiciones de la imputada, como su edad, que tiene esposo e hijos que dependen económicamente de ella y el que no tenga juzgamientos. Sin embargo, no se dice cómo se toman en cuenta. Es especialmente grave la privación de libertad de una persona de setenta años, tomando en cuenta sus limitaciones físicas. La imputada tiene padecimientos graves: reemplazo de ambas caderas y cáncer de mama. Ya sufrió severas consecuencias por los hechos, como el tener que renunciar a la Defensoría de los Habitantes. Por ello pide declarar con lugar el motivo y anular la pena de todos los delitos, ordenándose el reenvío. La unidad temática de ambos reproches permite resolverlos conjuntamente, debiendo declararse con lugar. A juicio de esta cámara de apelación, el tribunal de juicio incurre en una aplicación incorrecta de la ley sustantiva, en el momento de fijar la sanción. Ello está relacionado con las reglas establecidas en el Código Penal para el castigo del concurso material. Al respecto, señala ese cuerpo legal: “Para el concurso material se aplicarán las penas correspondientes a todos los delitos cometidos, no pudiendo exceder del triple de la mayor y en ningún caso de cincuenta años de prisión. El Juez podrá aplicar la pena que corresponda a cada hecho punible, siempre que esto fuere más favorable al reo” (artículo 76 del Código Penal). Como se aprecia, cuando se verifica un concurso material, el castigo de cada hecho punible debe establecerse independientemente de los demás, lo cual resulta sumamente importante, en razón del límite que la ley impone de no superar el triple del castigo más severo. En este caso, a lo largo de la fundamentación de la pena, se aprecia que el tribunal consideró, como factor determinante, la pluralidad de conductas cometidas para castigar cada uno de los delitos. De esa forma, la valoración de cada hecho se vio incrementada por la consideración de los demás y, como resultado, el castigo individual resultó abultado. Eso se aprecia cuando el a quo señala: “Así las cosas, se tiene que, en este caso en particular, la aquí condenada [Nombre1] cometió no uno, ni varios pocos, sino una gran cantidad de graves hechos ilícitos –noventa y seis usos de documentos falso en total- y durante un largo período de tiempo de cinco años –desde el año 2009 al 2014- (no en un día, ni durante un mes, ni varios meses, o bien durante un año), en su ambición desmedida de aumentar el patrimonio de sus tres empresas, por ende el suyo propio, sin importarle los intereses, el patrimonio del Fisco, del Estado, finalmente del pueblo; ese fue el motivo que la determinó para cometer las acciones ilícitas” (sentencia, pp. 216 y 217). Posteriormente reitera el argumento, agregando: “La lesión al bien jurídico tutelado, en este caso la fe pública en (sic) sumamente grave, pues fue violentado en noventa y seis ocasiones, en forma concreta pues no quedó en noventa y seis tentativas, sino que hubo noventa y seis resultados, como fueron el burlar el fisco en esa gran cantidad de veces, entiéndase la recaudación de impuestos del Estado, y por una cantidad de millones que, si bien no se pudo precisar con exactitud, si se hizo un estimado por parte de los peritos judiciales tal y como consta en el respectivo informe ya referido, y efectivamente se trató de varios millones de colones, no de cientos, ni de miles” (p. 218). Valga hacer notar que la cantidad de hechos ahí considerada fue objeto de rectificación por parte del tribunal de mérito, mediante resolución aclaratoria de las ocho horas del doce de setiembre de dos mil diecinueve, en la que se indicó, como se desprendía del resto del fallo, que la condena fue por treinta y dos delitos de uso de falso documento y no por noventa y seis. De cualquier forma, lo que queda claro es que se ponderó la importancia de cada hecho agregándole el peso de la totalidad, con lo que se dejó de aplicar lo dispuesto en el artículo 76 del Código Penal, incidiendo con ello en la sanción de cada uno de los treinta y dos delitos juzgados. Por lo anterior, se impone acoger los motivos, anulando la pena impuesta por todos los hechos juzgados, debiendo volver el asunto al a quo para que, con nueva integración, se pronuncie sobre el tema conforme a derecho.

X.- Como trigésimo sexto motivo, se invoca falta de legitimación activa de la Procuraduría General de la República, la que no tenía la facultad de interponer la acción civil resarcitoria, según el principio de legalidad y el artículo 16 del Código Procesal Penal. No se está en uno de los delitos que permiten su participación, ya que se imputó un uso de documento falso. La Procuraduría pretende cobrar cargas tributarias que fueron pagadas a la Administración dentro de un procedimiento administrativo. Además, no hay un daño real, causado por una acción delictiva; la Procuraduría alegó un daño material y uno social; el material son las cargas tributarias dejadas de percibir, que ya se pagaron. El proceso penal no es la vía para cobrar tributos dejados de percibir. Se alega un daño social sin justificación. No existe afectación a un bien colectivo. No ha lugar. Se sostiene la falta de legitimación de la Procuraduría General de la República, en el plano civil, porque los delitos por los que se condenó a la imputada [Nombre1] no se encuentran dentro de los supuestos del artículo 16 del Código Procesal Penal. El error en la argumentación se empieza a ver desde el título de la disposición legal, que indica claramente que no se refiere a la acción civil. El numeral en cuestión señala: “Acción penal / La acción penal será pública o privada. Cuando sea pública, su ejercicio corresponderá al Ministerio Público, sin perjuicio de la participación que este Código concede a la víctima o a los ciudadanos. En los delitos contra la seguridad de la Nación, la tranquilidad pública, los poderes públicos, el orden constitucional, el ambiente, la zona marítimo-terrestre, la hacienda pública, los deberes de la función pública, los ilícitos tributarios y los contenidos en la Ley de aduanas, Nº 7557, de 20 de octubre de 1995; la Ley orgánica del Banco Central de Costa Rica, Nº 7558, de 3 de noviembre de 1995 y la Ley contra el enriquecimiento ilícito de los servidores públicos, Nº `6872, de 17 de junio de 1983, la Procuraduría General de la República también podrá ejercer directamente esa acción, sin subordinarse a las actuaciones y decisiones del Ministerio Público. En los asuntos iniciados por acción de la Procuraduría, esta se tendrá como parte y podrá ejercer los mismos recursos que el presente Código le concede al Ministerio Público”. Así, siendo que el artículo se refiere a la acción penal, mal podría invocarse para determinar la legitimidad de la Procuraduría General de la República para ejercer la acción civil. Es el artículo 3 de la Ley Orgánica de la Procuraduría General de la República el que señala que “Son atribuciones de la Procuraduría General de la República: / a) Ejercer la representación del Estado en los negocios de cualquier naturaleza, que se tramiten o deban tramitarse en los tribunales de justicia […]”. Por ello, si en este caso el Estado se consideraba damnificado por los hechos acusados, tenía la posibilidad de ejercer la acción civil (artículo 37 del Código Procesal Penal), lo cual debía hacer, como se indicó, a través de la Procuraduría. Igualmente, ese órgano tiene como atribución “ […] d) Intervenir en las causas penales, de acuerdo con lo que al efecto disponen esta ley y el Código de Procedimiento Penales […]”, lo que en relación con la acción civil por daño social, nos remite al numeral 38 del código de rito que señala: “Acción civil por daño social / La acción civil podrá ser ejercida por la Procuraduría General de la República, cuando se trate de hechos punibles que afecten intereses colectivos o difusos”. Así, no se aprecia problema alguno de legitimación activa de ese órgano estatal. También se afirma que la Procuraduría pretende cobrar cargas ya pagadas. De ser así, los apelantes no solo debieron haberlo lanzado como alegato, sino, además, aportar el fundamento probatorio, ya que, siendo un tema de naturaleza civil, rige el numeral 41 del Código Procesal Civil en cuanto dispone: “41.1 Carga de la prueba. Incumbe la carga de la prueba: […] 2. A quien se oponga a una pretensión, en cuanto a los hechos impeditivos, modificativos o extintivos del derecho del actor […]”. Así, si se alega un hecho extintivo de la obligación, como es el pago, debió haberse aportado la prueba, lo que no hacen los recurrentes. En todo caso, en tanto la condenatoria civil fue dispuesta en abstracto, nada impediría que la respectiva excepción se haga valer en la sede civil, si se llega a esas instancias. También se alega la falta de justificación del daño social, cuando no hubo una afectación a un bien colectivo. En ese punto, el rechazo de la impugnación se impone por falta de agravio (artículo 439 del Código Procesal Penal), ya que en la sentencia recurrida se declaró sin lugar la partida de daño social. Se adelanta, eso sí, que el tema será objeto de pronunciamiento más adelante, en virtud de argumentos distintos a los que aquí esgrimen los recurrentes (ver considerando XIV). Por todo lo anterior, sin lugar el reproche.

XI.- RECURSO DE LA IMPUTADA [Nombre1] . Como se hizo ver en considerandos previos, la imputada también apeló la sentencia dictada en este proceso. Los motivos primero, tercero y sexto de su recurso ya fueron conocidos anteriormente, al resolver los alegatos de sus defensores, por razones de conexidad temática. Los reclamos que no han sido objeto de pronunciamiento son los que de seguido se exponen. Como segundo reproche, se alega falta de fundamentación jurídica y de la pena, en la sentencia, con respecto a las condenatorias de uso de documento falso relacionadas con las declaraciones juradas D-101 y las declaraciones informativas D-151. La recurrente considera quebrantados los artículos 142 y 363 inciso b) del Código Procesal Penal; 71 y 372 del Código Penal; 39 de la Constitución Política; 8 de la Declaración Americana sobre Derechos Humanos y la jurisprudencia de la Corte Interamericana de Derechos Humanos. Señala que la sentencia incurre en falta de fundamentación, porque en la única referencia que hace al respecto califica como uso de documento público falso los hechos atribuidos a la encartada, lo cual hace sin brindar justificación alguna. Sostiene que ello es importante porque solo es posible el delito de uso de documento privado cuando se está ante una falsedad material, no ante una de naturaleza ideológica. Refiere que, con respecto a las declaraciones D-101 y D-151 de las sociedades Edificio Adrofer Sociedad Anónima, Consultores ORS y Asociados Sociedad Anónima e Inversiones Beyof Sociedad Anónima, no se condenó por una falsedad material, sino ideológica, ya que se afirmó que lo dicho en ellas no era cierto, particularmente en cuanto a los pagos hechos a [Nombre5] . El reclamo se refiere, concretamente, a los siguientes hechos y declaraciones: 1) D-151 número [Identificacion1], 2) D-151 número [Identificacion2], 4) D-101 número [Identificacion3], 5) D-101 número [Identificacion4], 7) D-151 número [Identificacion5], 8) D-151 número 15113003880516, 10) D-101 número [Identificacion6], 11) D-101 número [Identificacion7], 12) D-101 número [Identificacion8], 14) D-101 número [Identificacion9], 16) D-101 número [Identificacion10], 17) D-101 número CED12, 18) D-151 número CED13, 21) D-101 número CED14, 22) D-101 número CED15, 24) D-151 número CED16, 27) D-101 número CED17, 29) D-151 número CED18 y 30) D-151 número CED19. En ninguna de esas declaraciones se condena por una falsedad material, sino ideológica, ya que se afirma que lo dicho en ellas no es cierto, en particular respecto a los pagos hechos a [Nombre5] . Ello es relevante, ya que el uso de documento privado no es punible cuando la falsedad es de carácter ideológico. En una única referencia, a folio 123 de la sentencia, se afirma que se trató de usos de documento público, sin análisis ni justificación alguna. La consideración de que se trataba de usos de documento público y no privado no tiene sustento jurídico, ya que los documentos no fueron emitidos por un funcionario público o por un notario público. El Código Procesal Civil vigente en el momento de los hechos, en su artículo 369, definía lo que eran los documentos e instrumentos públicos, definición mantenida en el nuevo cuerpo legal de la materia, en el artículo 42.2. Existe consenso de que, por exclusión, se reputan como documentos privados aquellos que no son calificados por la ley como públicos. Esa idea es recogida en el artículo 45.3 del nuevo Código Procesal Civil. De ahí que las declaraciones D-101 y D-151 deben ser considerados documentos privados. El uso de documento falso debe entenderse relacionado con los delitos contemplados entre los numerales 366 y 371 del Código Penal, lo cual es importante en tanto respecto a los documentos privados, la falsedad punible solo puede ser material. Ello también tiene importancia respecto a los siguientes hechos y declaraciones: 3) D-151 número [Identificacion19], 6) D-101 número [Identificacion20], 9) D-151 número [Identificacion21], 13) D-101 número [Identificacion35], 15) D-101 número [Identificacion22], 19) D-151 número [Identificacion23], 20) D-151 número [Identificacion24], 23) D-101 número [Identificacion25], 25) D-151 número [Identificacion26], 26) D-151 número [Identificacion27], 28) D-101 número [Identificacion28], 31) D-151 número [Identificacion29] y 32) D-151 número [Identificacion30]. En estos casos la condena se justificó por una falsedad material, al falsificar la firma de [Nombre5] . Por cada uno de esos hechos se impuso una pena de tres años de prisión, pero la consideración de la gravedad se ponderó en función de la naturaleza pública o privada del documento. El uso de un documento privado falso es menos grave que el de uno público, ateniéndose a la distinta valoración que les da el Código Penal. Ello también tendría relación con la penalidad respecto a los primeros hechos analizados. Por ello solicita se declare con lugar el motivo; se anule la condenatoria por los hechos 1, 2, 4, 5, 7, 8, 10, 11, 12, 14, 16, 17, 18, 21, 22, 24, 27, 29 y 30; que, por economía procesal, se absuelva por esos hechos a la encartada y, subsidiariamente, se anule la condenatoria y se disponga el reenvío. También pide que se anule la pena impuesta respecto a todos los delitos por los que se haya de mantener la condenatoria, incluyendo los números 3, 6, 9, 13, 15, 19, 20, 23, 25, 26, 28, 31 y 32 y que, consecuentemente, se disponga el reenvío para fijación de pena. Sin lugar. Ciertamente, debe coincidirse con la recurrente cuando indica que la condenatoria que se hizo en su contra lo fue por el uso de treinta y dos documentos privados falsos, no públicos. Falsificó dos tipos de documentos: la Declaración anual de clientes, proveedores y gastos específicos (formulario D 151) y la Declaración jurada de impuesto sobre la renta (formulario D 101). Ambas son declaraciones autoliquidaciones, es decir, diseñadas para que las complete el propio declarante, por lo que no pueden ostentar la condición de documentos públicos que son hoy, así como lo eran en el tiempo en que se incurrió en las falsedades, aquellos elaborados por funcionarios públicos, con las formas de ley y dentro del límites de sus atribuciones. La única cita del fallo en la que se habla de documentos públicos dice así: “Tampoco fue posible establecer la responsabilidad penal de la acusada en siete de los treinta y nueve delitos de Uso de Documento Público que se le atribuyó en la acusación” (sentencia, p. 123). El tema no fue desarrollado, ya que evidentemente no se pretendía argumentar a favor de la naturaleza de los documentos falsificados; no fue ese el contexto de la afirmación. Por ello, es razonable pensar que la referencia fue un simple descuido del órgano juzgador. Ahora bien, de ese carácter privado de los memoriales, se pretende deducir la atipicidad de la conducta consistente en confeccionar todas aquellas declaraciones en las que la falsedad no fue de orden material, con el argumento de que, cuando se trata de documentos privados, no es típica la falsedad ideológica. Como corolario, se pretende deducir también la atipicidad del uso de tales documentos. A juicio de esta cámara, la interpretación es incorrecta. El artículo 368 del Código Penal indica: “Se impondrá prisión de seis meses a dos años al que hiciere en todo o en parte un documento privado falso o adulterare uno verdadero, de modo que pueda resultar perjuicio” (artículo 368 del Código Penal). De esa redacción se deduce que el delito de falsificación de documentos privados puede referirse tanto a los aspectos materiales como a los intelectuales del documento, en tanto el verbo “hacer” puede comprender ambas cosas. Algo similar sucede con el delito de falsificación de documentos públicos y auténticos del numeral 366 del mismo código, norma que señala: “Será reprimido con prisión de uno a seis años, el que hiciere en todo o en parte un documento falso, público o auténtico, o alterare uno verdadero, de modo que pueda resultar perjuicio. / Si el hecho fuere cometido por un funcionario público en el ejercicio de sus funciones, la pena será de dos a ocho años”. La similitud entre ambas disposiciones, hace preguntarse por la necesidad del tipo penal de la falsedad ideológica del artículo 367 del Código Penal. Si el numeral 366 ya contempla la falsedad del contenido intelectual del documento ¿es redundante el 367? La respuesta que ha dado la jurisprudencia es negativa. La precisión que se hace en el citado artículo 367, que refiere: “Las penas previstas en el artículo anterior son aplicables al que insertare o hiciere insertar en un documento público o auténtico declaraciones falsas, concernientes a un hecho que el documento deba probar, de modo que pueda resultar perjuicio”, se debe a la particular naturaleza de los documentos públicos que regula, y al hecho de que estos deben ser confeccionados por funcionarios, para dar fe de determinados sucesos. En esa medida, se puede verificar en ellos el “hacer” típico (por parte del funcionario u otra persona), o el “hacer insertar” (acción exclusiva de un tercero); comportamientos que, por ser diversos, justifican una regulación separada. Esa necesidad no se presenta en los documentos privados, que solo son confeccionados por sujetos particulares, para surtir efectos entre ellos o hacia terceros, en ciertas hipótesis —sin perjuicio de la concurrencia de los supuestos de coautoría o complicidad cuando participan otros—. Por eso, en el caso de los documentos privados, no existe un artículo específico que contemple la falsedad de sus aspectos ideológicos, sin que ello implique que no está incluida en el tipo. Ese criterio ha sido sostenido por la Sala Tercera de la Corte Suprema de Justicia, al indicar: “Como agravio del recurso por vicios in iudicando interpuesto por la defensa del imputado [Nombre6]., se acusa la inobservancia de los artículos 1, 30 y 359 del Código Penal, ya que estima que la conducta de su patrocinado no es constitutiva de delito alguno, porque la falsedad del documento elaborado por él se reduce a su contenido intelectual, de modo que en realidad se trata de una falsedad ideológica que, por tratarse de un documento privado, debe declararse atípica.- Considera esta Sala que el reclamo no es atendible, porque si nuestro Código Penal distingue entre la falsedad "material" y la falsedad "ideológica" en documentos públicos o auténticos, ello obedece precisamente a la naturaleza jurídica del documento, que por su redacción, formas y expedición por parte de funcionarios públicos dentro del límite de sus atribuciones, hacen plena prueba -mientras no sean argüidos de falsos- de la existencia material de los hechos que el oficial público afirme en ellos haber realizado él mismo, o haber pasado en su presencia, en el ejercicio de sus funciones (cfr. artículos 369 y 370 del Código Procesal Civil). Por ello la distinción indicada carece de sentido tratándose de documentos privados, a los cuales, precisamente por su informalidad y porque no son extendidos por funcionarios públicos en el ejercicio de sus funciones, ni son oponibles erga omnes, la ley tan solo le reconoce el hacer fe entre las partes y con relación a terceros en cuanto a las declaraciones en ellos contenidas, salvo prueba en contrario, siempre y cuando hayan sido reconocidos judicialmente o declarados como reconocidos conforme a la legislación (cfr. artículo 379 del Código Procesal Civil). No desconoce esta Sala que para la doctrina argentina (entre la que cuenta [Nombre25], citado por el recurrente) la falsedad ideológica únicamente constituye delito tratándose de documentos públicos. Sin embargo, ello obedece a que la estructura de los tipos penales contenidos en el Capítulo de Falsificación de Documentos en General de su Código Penal es diferente a la del nuestro, lo cual puede corroborarse claramente al analizar los artículos 292 a 298 bis de su texto legal. En la primera de esas normas, bajo el título de Falsificación material", se sanciona al que hiciere en todo o en parte un documento falso o adultere uno verdadero, de modo que pueda resultar perjuicio, ya sea pública o privada su naturaleza (siendo la única diferencia la penalidad dispuesta para cada supuesto). Luego, el artículo 293 del texto argentino señala que la "Falsedad ideológica" ha de referirse a los documentos públicos, pero haciendo extensiva la represión, por excepción expresa, a dos tipos de documento privado, a saber, los certificados médicos y las facturas conformadas. En vista de la estructura de estos tipos penales resultan claras las razones por las cuales la doctrina argentina señala que la Falsificación de documento privado se constriñe a su materialidad, mientras que la falsedad ideológica o histórica -con las dos excepciones expresadas- solo es posible respecto de documentos públicos, ya que extender la punibilidad de la falsedad ideológica a todos los demás documentos privados implicaría una aplicación analógica de la ley penal, prohibida por el principio de legalidad (cfr. [Nombre26] , Omar y otro: Código Penal y Leyes Complementarias, comentado, anotado y concordado, Buenos Aires, Editorial Astrea, 1987, págs. 988, 989, 991 y 992; SOLER, Sebastián: Derecho Penal Argentino, T. V, Buenos Aires, Tipográfica Editora Argentina, 1970, pág. 349; FONTAN (sic) BALESTRA, Carlos: Derecho penal Parte Especial, Buenos Aires, Abeledo Perrot, 1978, págs. 654, 655, 659; CREUS, Carlos: Falsificación de documentos en general, Buenos Aires, Editorial Astrea, 1986, págs. 127 y 128). Por esto es que con la doctrina que utiliza no logra el recurrente fundamentar su agravio. Retomando el análisis de la legislación costarricense y para dar mayores razones sobre la aplicación e interpretación de las (sic) tipos penales en comentario (ya que el criterio aquí enunciado modifica la jurisprudencia anterior de esta Sala, por ejemplo véase la resolución Nº 114 de las 8:25 horas del 19 de junio de 1986), debe señalarse nuevamente que los artículos 357 y 358 del Código Penal aluden exclusivamente a documentos públicos o auténticos, siendo el primero el género y el segundo la especie del primero, cuya aplicación ha de resolverse en cada caso de acuerdo con las normas que rigen el concurso de delitos. Esto así, porque a diferencia de su semejante en la legislación argentina, el artículo 357 no alude expresa y exclusivamente a la "materialidad" del documento, sino que bajo el título de "Falsificación de documentos públicos y auténticos" señala que: «Será reprimido con prisión de uno a seis años, el que hiciere en todo o en parte un documento falso, público o auténtico, o alterare uno verdadero, de modo que pueda resultar perjuicio. Si el hecho fuere cometido por un funcionario público en el ejercicio de sus funciones, la pena será de dos a ocho años» (el subrayado no es del original). El artículo 359 del Código Penal dispone que incurre en el delito de Falsificación de documentos privados el: «Se impondrá prisión de seis meses a dos años al que hiciere en todo o en parte un documento privado falso o adulterare uno verdadero, de modo que pueda resultar perjuicio» (el subrayado no es del original). Si comparamos los dos artículos transcritos, podemos constatar con facilidad que son iguales excepto en las partes no subrayadas, es decir, que independientemente de la naturaleza del documento y de otras circunstancias personales o de ocasión, ambos tipos penales se refieren a la conducta de quien hiciere en todo o en parte un documento o lo adulterare, donde "hacer" significa, conforme al sentido común de las palabras, producir, dar forma, ejecutar, dar el ser intelectual, causar, disponer, componer o perfeccionar el documento (cfr. las diez primeras acepciones comunes de la voz "hacer" en el Diccionario de la Lengua Española, Real Academia Española, 21ª edición, Madrid, 1992, pág. 763), es decir, que ambos tipos penales aluden -en principio- tanto a los aspectos materiales como ideológicos del documento, siendo su única excepción el caso en que la falsedad ideológica (artículo 358) recae en un documento público o auténtico, salvedad que se justifica -como se ha dicho reiteradamente- por la naturaleza probatoria superior de este tipo de documentos y particularmente porque su realización supone la intervención de un funcionario público que, eventualmente, podría ser autor de cualquiera de estos dos delitos sancionados por los artículos 357 y 358; o cuya fe pública podría ser falseada o alterada materialmente por otro sujeto (en el caso del artículo 357), o ilegalmente empleada por otra persona (en el caso del artículo 358). Por ello estimamos que nuestro (sic) legislación, al tutelar la fe pública de los documentos públicos o auténticos, en atención a su naturaleza y las calidades de los sujetos que pueden lesionarla, dispuso la Falsedad ideológica como una especie de la Falsificación (género), ya que quien da fe y "hace" el documento público materialmente auténtico puede no ser la persona que "hace" insertar en él declaraciones falsas, concernientes a un hecho que el documento deba probar. Por ello resulta innecesario, ante la formulación genérica del artículo 359, que se hubiera sancionado expresamente la falsedad ideológica de documentos privados, ya que estos no son expedidos por un funcionario público, sino simplemente por un particular que por sí mismo da fe (personal o individual, no pública) de lo que en él consigna, de modo que es posible considerar como Falsificación de documento privado, siempre que pueda resultar perjuicio: 1) la realización de un documento auténtico en sus condiciones materiales de existencia, pero total o parcialmente falso respecto a las hechos que en él se quieren probar como verdaderos, o; 2) la falsificación o alteración total o parcial de la materialidad de un documento, aunque el hecho que se quiera probar con él sea cierto. Como corolario de lo anterior resulta que, el hecho de que el autor de la falsedad ideológica en el documento privado no sea la misma persona que materialmente confeccionó el documento, no excluye su autoría a los efectos del artículo 359, sino que a lo sumo implicaría la participación de otro sujeto en el mismo delito, ya fuera como coautor o cómplice, lo cual dependería obviamente de la existencia y contenido concreto de su dolo" (Sala III, v. 252-97, de las 9:25 hrs del 14 de marzo de 1997). Como consecuencia de lo anterior, debe concluirse que el delito de uso de falso documento del artículo 372 del Código Penal, que refiere: “Será reprimido con uno a seis años de prisión, el que hiciere uso de un documento falso o adulterado”, resulta aplicable tanto a las situaciones en que se falsea el contenido material como el intelectual del documento, aun cuando este sea de naturaleza privada. La recurrente sostiene que la errada categorización de los documentos como públicos incidió en la pena referida a aquellos hechos en los que la falsedad detectada era de orden material, ya que la gravedad de una falsificación de documento público es mayor que la de uno de naturaleza privada. Más aún, sostiene que esa categorización habría incidido en la pena de las primeras falsificaciones referidas, en caso de que la condenatoria por ellas fuere correcta, por idénticas razones. Pero el tema de la penalidad de las conductas ya fue resuelto en el considerando IX, por lo que resulta innecesario ahondar en ello, de manera que se omite pronunciamiento sobre ese extremo. Consecuentemente, se impone el rechazo del reclamo.

XII.- Como cuarto reparo, se reclama falta de fundamentación de la sentencia con respecto al uso de documento falso, relacionado con las declaraciones D-101 de las sociedades Edificio Adrofer Sociedad Anónima, Consultores ORS y Asociados Sociedad Anónima e Inversiones Beyof Sociedad Anónima y con respecto a la pena impuesta por todos los delitos. Se afirma el quebranto de los artículos 142 y 363 inciso b) del Código Procesal Penal, 39 de la Constitución Política, 8 de la Convención Americana sobre Derechos Humanos y la jurisprudencia de la Corte Interamericana de Derechos Humanos. Señala que no se justifica en la sentencia por qué si en las declaraciones D-101 no se menciona una lista de clientes, sino solamente de gastos, se parte de que en tales declaraciones está incluida [Nombre5] . El tema atañe a los siguientes hechos y declaraciones: 4) D-101 número [Identificacion3], en la que no se incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . En el apartado de costos, gastos y deducciones de la declaración simplemente se fija la suma de tres millones seiscientos treinta y tres mil trescientos treinta y tres colones, sin que haya desglose de gastos. 5) D-101 número [Identificacion4], en la que no se incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . En el apartado de costos, gastos y deducciones de la declaración simplemente se fija la suma de tres millones novecientos cuarenta y dos mil trescientos treinta y tres colones, sin que haya desglose de gastos. 10) D-101 número [Identificacion6], en la que no se incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . En el apartado de costos, gastos y deducciones de la declaración simplemente se fija la suma de un millón nueve mil colones, sin que haya desglose de gastos. 11) D-101 número [Identificacion7], en la que no se incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . En el apartado de costos, gastos y deducciones de la declaración simplemente se fija la suma de cuatro millones de colones, sin que haya desglose de gastos. 12) D-101 número [Identificacion8], en la que no se incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . Se reportan gastos por diecinueve millones ochocientos ochenta y nueve mil novecientos treinta y tres colones, sin que se haga un desglose de los mismos y sin mencionar a la señora [Nombre5]. Incluso, en el hecho doce ni siquiera se menciona el total de gastos a que se refiere la D-101 número [Identificacion8] y el total de gastos que corresponden a [Nombre5] . Respecto al período dos mil diez (hechos 7 a 13), no se menciona que Inversiones Beyof Sociedad Anónima hubiera rendido declaración informativa D-151 que mencionara gastos correspondientes a [Nombre5] . En ningún momento, en las declaraciones D-151 de Inversiones Beyof Sociedad Anónima del dos mil diez, ni en la D-151 número [Identificacion21] de [Nombre5] del dos mil diez (hecho 9) se menciona pago alguno de Inversiones Beyof Sociedad Anónima a ella. 14) D-101 número [Identificacion9], en la que no se incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . En el apartado de gastos y ventas administrativas de la declaración simplemente se fija la suma de quince millones ciento cincuenta y dos mil setecientos noventa y un colones, sin que haya desglose de gastos. 16) D-101 número [Identificacion10], en la que no se incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . En el apartado de gastos y ventas administrativos de la declaración simplemente se fija la suma de un millón de colones, sin que haya desglose de gastos. En los hechos en que se condena respecto al período dos mil once (hechos 14 a 20), no se menciona que Edificio Adrofer Sociedad Anónima hubiera rendido una declaración informativa D-151 en que mencionara a [Nombre5] . Tampoco se menciona, en relación con la declaración informativa D-151 número [Identificacion23] de [Nombre5] . 17) D-101 número [Identificacion11], en la que no se incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . Ni siquiera se precisa el monto de los gastos. En el apartado de gastos y ventas administrativos de la declaración simplemente se fija la suma de quinientos mil colones, sin que haya desglose de gastos. Al enumerar las declaraciones D-151 del dos mil once (hechos 18 a 20), no se menciona ninguna declaración informativa D-151 por parte de Consultoría ORS y Asociados Sociedad Anónima que refiera un pago a [Nombre5] . 21) D-101 número [Identificacion13], en la que no se incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . Pese a ello, se parte de que dicha declaración incluyó gastos por diecisiete millones trescientos cuarenta y cinco mil trescientos ochenta y cinco colones, que incluía gastos ficticios a nombre de la señora [Nombre5]. 22) D-101 número [Identificacion14], en la que no se incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . Adicionalmente, no se precisa en qué habría modificado esta declaración rectificativa la D-101 número [Identificacion13], lo que tendría relación con la afectación que podría producir, siendo una simple reiteración de la anterior. 27) D-101 número [Identificacion16], en la que no se incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . A pesar de ello, se parte de que dicha declaración incluyó gastos por dieciséis millones setecientos sesenta y siete mil cuatrocientos dos colones, que incluía gastos ficticios a nombre de la señora [Nombre5]. El tribunal justificó la pena de tres años de prisión por cada hecho, invocando la cantidad de los delitos de uso de documento falso. Por ello pide se declare con lugar el motivo, se anule la condena por los hechos numerados 4, 5, 10, 11, 12, 14, 16, 17, 21, 22 y 27 y, por economía procesal, se absuelva a la imputada; subsidiariamente, se disponga el reenvío. Además, que se anule la pena con respecto a todos los delitos por los que se mantenga la condenatoria, ordenando el reenvío. Parcialmente con lugar. El formulario D 101 corresponde con lo que se conoce como “Declaración jurada del impuesto sobre la renta”. A través de él, la persona física o jurídica da cuenta de su ingreso imponible y de la deuda que le corresponde asumir con el fisco en un año determinado. Para llegar a ello, debe considerar una serie de factores, contemplados en el formulario, como los activos o pasivos adquiridos en el período, sus ingresos, costos, gastos y deducciones. En cuanto a los gastos, el declarante tiene un espacio para consignar su monto total, pero no el desglose de los mismos, porque el detalle de éstos no es el fin de la declaración de impuesto sobre la renta. Ese desglose preciso se realiza en otro formulario, el D 151, denominado “Declaración anual resumen de clientes, proveedores y gastos específicos”, también llamada “Declaración de terceros”, que igualmente se confecciona cada año. Este otro documento comprende una parte general, en la que se identifica al declarante y se desglosan los gastos, divididos por rubro específico; y una hoja de detalle en la que se precisan los datos de los beneficiarios de aquellos gastos. Por ello, la existencia de un dato falso incluido en alguna declaración jurada de impuesto sobre la renta no puede detectarse centrándose, exclusivamente, en esa declaración; más bien, ella debe relacionarse con la respectiva Declaración anual resumen de clientes, proveedores y gastos específicos, o Declaración de terceros. Así, es cierto que en la declaración D-101 número [Identificacion3] de la empresa Edificio Adrofer Sociedad Anónima, del año dos mil nueve, no se menciona el nombre de [Nombre5] . También lo es que, en el apartado de costos, gastos y deducciones de la declaración, simplemente se fija la suma de tres millones seiscientos treinta y tres mil trescientos treinta y tres colones, sin que haya desglose de gastos (ampo de declaraciones, certificación dentro del sobre de manila de f. 17). Sin embargo, llegar hasta ahí es recorrer solo la mitad del camino, si de lo que se trata es de establecer la existencia de la falsedad. Se hace necesario, además, remitirse a la declaración 151 de la misma empresa número CED21, para percatarse de que en ese mismo año señaló un total de gastos por servicios profesionales por tres millones seiscientos treinta y tres mil trescientos treinta y tres colones, de los cuales, según la hoja de detalle, tres millones quinientos mil colones le fueron supuestamente pagados a [Nombre5] . La falsedad es evidente, habida cuenta de que, como se acreditó más allá de toda duda, doña [Nombre5] nunca prestó servicios profesionales a esa empresa ni a ninguna otra, ya que incluso, no es profesional. También es cierto que en la declaración D-101 número [Identificacion4] del año dos mil nueve, de Consultoría ORS y Asociados Sociedad Anónima, no se incluye una lista de clientes, por lo que no se menciona a doña [Nombre5] . Asimismo, en el apartado de costos, gastos y deducciones de la declaración, simplemente se fija la suma de tres millones novecientos cuarenta y dos mil trescientos treinta y tres colones, sin que haya desglose de gastos (ampo de declaraciones, certificación dentro de sobre de manila de f. 18). Pero tal información debe relacionarse con la declaración de la misma empresa número [Identificacion36], que señala que en ese año se tuvo a doña [Nombre5] como prestadora de servicios profesionales por tres millones quinientos mil colones (ampo de declaraciones, dentro de sobre de manila, f. 296), lo cual es falso, por todo lo que ya se ha analizado a lo largo de este fallo. Por ello sí se puede afirmar que la declaración de renta referida contiene información falsa. Igualmente es cierto que en la declaración D-101 número [Identificacion6] de Edificio Adrofer Sociedad Anónima, del año dos mil diez, no se incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . También lo es que en el apartado de costos, gastos y deducciones de la declaración simplemente se fija la suma de un millón nueve mil colones, sin que haya desglose de gastos (ampo de declaraciones, certificación dentro de sobre de manila de f. 17). Pero esa declaración debe relacionarse con la número [Identificacion5] de la misma empresa, que señala que, en ese mismo año, a la señora [Nombre5] se le pagaron servicios profesionales por un millón de colones (ampo de declaraciones, fs. 220 a 223). De esa forma se acredita que parte de los servicios profesionales deducidos al pagar el impuesto sobre la renta correspondían a una erogación inexistente a doña [Nombre5] . La declaración D-101 número [Identificacion7] del año dos mil diez, de Consultoría ORS y Asociados Sociedad Anónima, no incluye lista de clientes, por lo que no se menciona a doña [Nombre5] . También es cierto que, en el apartado de costos, gastos y deducciones de la declaración simplemente se fija la suma de cuatro millones de colones, sin que haya desglose de gastos (ampo de declaraciones, certificación en sobre de manila de f. 18). Pero también lo es que ese mismo año, esa empresa reportó el pago de cuatro millones de colones por servicios profesionales a nombre de [Nombre5] (ampo de declaraciones, certificación de fs. 271 a 273). Es verdad que en la declaración D-101 número [Identificacion9] del año dos mil once, de la empresa Inversiones Beyof Sociedad Anónima, no se incluye una lista de clientes, por lo que no se menciona a doña [Nombre5] . También lo es que, en el apartado de gastos y ventas administrativas de la declaración, simplemente se fija la suma de quince millones ciento cincuenta y dos mil setecientos noventa y un colones, sin presentar un desglose —quince millones quinientos cuarenta y tres mil ciento noventa y un colones, si se agrega el concepto de depreciaciones, amortizaciones y agotamiento, para establecer el total absoluto de gastos— (ampo de declaraciones, certificación en sobre de manila de f. 16). Sin embargo, debe correlacionarse dicha información con la consignada en la declaración de gastos [Identificacion12], de la misma empresa y del mismo año, en la que se consigna que parte de lo que se pagó en esa temporada fueron servicios profesionales por ocho millones de colones a doña [Nombre5] (ampo de declaraciones, certificación de fs. 157 a 173). También es cierto que en la declaración D-101 número [Identificacion13] del año dos mil doce, de la sociedad Inversiones Beyof Sociedad Anónima, no se incluye lista de clientes ni se menciona a [Nombre5] , pese a lo cual se parte de que dicha declaración incluyó gastos por diecisiete millones trescientos cuarenta y cinco mil trescientos ochenta y cinco colones, contemplando erogaciones ficticias a nombre de la señora [Nombre5] (ampo de declaraciones, certificación de fs. 63 a 81). Sin embargo, no puede dejarse de lado que la declaración de gastos [Identificacion15] de dicho año de esa empresa, señala claramente que se pagaron servicios profesionales a doña [Nombre5] (ampo de declaraciones, certificación de fs. 174 a 187), quien nunca los prestó. Igualmente es cierto que la declaración D-101 número [Identificacion14] del año dos mil doce de la empresa Inversiones Beyof Sociedad Anónima no incluye lista de clientes, por lo que no se menciona a doña [Nombre5] , ya que no corresponde a este tipo de declaraciones (ampo de declaraciones, certificación de fs. 63 a 81). Pero como ya se indicó en el caso anterior, —siendo ésta una rectificación de la número [Identificacion13]—, la declaración de gastos [Identificacion15] de dicho año, de esa empresa, señala que se pagaron servicios profesionales a doña [Nombre5] (ampo de declaraciones, certificación de fs. 174 a CED22), lo que no es cierto. También se cuestiona en qué habría modificado esta declaración rectificativa la D-101 número [Identificacion13]. La respuesta se encuentra en la fecha de presentación que se aprecia en los documentos: una fue presentada el veinte de noviembre de dos mil doce y la otra al día siguiente, según se aprecia en la parte final de cada una, por lo que se dieron dos usos de falso documento en días distintos. También es cierto que la declaración de renta D-101 número [Identificacion16] no incluye lista de clientes, por lo que no se menciona a doña [Nombre5] , e incluyó gastos por dieciséis millones setecientos sesenta y siete mil cuatrocientos noventa y dos colones (corrigiendo el pequeño error material en que incurre la recurrente) (ampo de declaraciones, certificación de fs. 69 a 81). Sin embargo, no puede dejarse de lado que dicha empresa, en ese año, indicó gastos por seis millones de colones a nombre de la señora [Nombre5] , en dos oportunidades, en las declaraciones [Identificacion17] y [Identificacion18] (ampo de declaraciones, certificación de fs. 188 a 204). Sí tiene que darse la razón a la recurrente en cuanto a la declaración D-101 número [Identificacion8] del año dos mil diez, de la empresa Inversiones Beyof Sociedad Anónima, que no encuentra una vinculación con [Nombre5] a través de la declaración de terceros del año dos mil diez número [Identificacion37] de dicha sociedad, ya que en esta última no se menciona a tal persona (ampo de declaraciones, certificación de fs. 138 a 140). No está claro de dónde derivó el tribunal que hubo una falsedad en la declaración de renta, por lo que en ese punto la sentencia debe anularse y disponerse el reenvío. Igualmente ocurre con la declaración D-101 número [Identificacion10] del año dos mil once, de la empresa Edificio Adrofer Sociedad Anónima. En las declaraciones de terceros de dicha empresa, de ese año, numeradas CED23, CED24 y CED25, no consta el pago de servicios profesionales a la señora [Nombre5] (ampo de declaraciones, certificación de fs. 223 a 233). También es de recibo el reclamo en cuanto a la declaración D-101 número [Identificacion11] del año dos mil once, de la empresa Consultoría ORS y Asociados Sociedad Anónima, que no encuentra respaldo en la declaración de terceros de la empresa del año dos mil once, número CED26 (ampo de declaraciones, certificación de fs. 274 a 279). Consecuentemente se impone anular la condenatoria por estas tres últimas declaraciones, ordenando el reenvío para nueva sustanciación conforme a derecho. El tema de las consecuencias de lo aquí dispuesto sobre la pena, que trae a colación la recurrente, se ha de obviar en razón de lo dispuesto sobre el tema en el considerando IX de esta resolución. En lo demás, se impone el rechazo del reclamo.

XIII.- Como quinto motivo, se reclama falta de correlación entre acusación y sentencia, con quebranto de los artículos 142 y 365 del Código Procesal Penal y 39 de la Constitución Política. Sostiene que el hecho número 12, referente a la declaración número [Identificacion8], incluye pagos ficticios a [Nombre5] , pero se parte del hecho acusado número 9, del año dos mil diez, en el que ello no se afirma. La referencia a gastos es con respecto a la declaración [Identificacion7], a nombre de Consultoría ORS y Asociados Sociedad Anónima y a la [Identificacion6], a nombre de Edifico Adrofer Sociedad Anónima. Por otra parte, el hecho 16, sobre la declaración D-101 número [Identificacion10], se aparta del hecho 3 de la acusación, referente al año dos mil once, en el que se menciona dicha declaración. La acusación no hizo mención a montos o a que reportara gastos ficticios a favor de [Nombre5] . Con respecto al hecho 17, declaración D-101 [Identificacion11], menciona pagos ficticios a [Nombre5] , apartándose del hecho acusado 3, en el que simplemente se refiere que se presentó la declaración, sin atribuir que ella contuviera pagos ficticios a favor de [Nombre5] . La sentencia agrega que a través de esa declaración se incluyeron pagos ficticios a [Nombre5] . La anulación de la condena por los hechos señalados debe llevar a la anulación de la pena de tres años fijada con relación a todos los hechos por los que se condenó, ya que, para justificar la sanción, el tribunal mencionó reiteradamente que obedecía a la condena por treinta y dos usos de documento falso. Por ello pide que se declare con lugar el motivo, se anule la condenatoria de los hechos 12, 16 y 17 y se absuelva a la imputada, por economía procesal; subsidiariamente, que se disponga el reenvío. Además, que se anule la pena con respecto a todos los delitos por los que se mantenga la condenatoria. No ha lugar. Después de una breve introducción sobre la relación de la encartada con las sociedades cuyas declaraciones de impuestos fueron falsificadas, en la acusación se narra lo siguiente: “5. En virtud de lo anterior, la acusada [Nombre1] , como representante y miembro de la Junta Directiva de las empresas antes descritas, ideó un plan delictivo para beneficiarse patrimonialmente a través de sus empresas mediante el pago inferior de tributos, lo cual logró al incluir datos falsos en declaraciones ante la Dirección General de Tributación del Ministerio de Hacienda. Para ello además usurpó la identidad de la ofendida [Nombre5] , para lo cual contó con la colaboración y participación activa de la coimputada [Nombre6] quien fungió durante el período investigado como contadora de confianza de la señora [Nombre1] . a. De ésta manera, en el período comprendido entre el año 2004 y el año 2013, las acusadas [Nombre1] e [Nombre6] , incluyeron datos falsos en los formularios oficiales de la Dirección General de Tributación del Ministerio de Hacienda, de la Declaración Anual de Clientes, Proveedores y gastos Específicos (Formulario D151) y de la Declaración Jurada del Impuesto Sobre la Renta (Formulario D101) de las empresas Inversiones BEYOF S.A., Edificio ADROFER S.A. y Consultoría ORS y Asociados S.A. En dichos documentos las acusadas señalaron falsamente que la ofendida [Nombre5] brindaba servicios profesionales a las empresas señaladas, en virtud de lo cual se le pagaban honorarios que se clasificaban como gastos de las empresas y por lo tanto reducían la base imponible de los tributos que debían pagar. b. Del mismo modo, las acusadas [Nombre1] e [Nombre6] , en el período comprendido entre el año 2004 y el 2013, incluyeron datos falsos en los formularios oficiales de la Dirección General de Tributación del Ministerio de Hacienda, de la Declaración Anual de Clientes, Proveedores y gastos Específicos (Formulario D151) y de la Declaración Jurada del Impuesto Sobre la Renta (Formulario D101) de la ofendida [Nombre5] , señalando falsamente que dicha ofendida brindaba servicios profesionales a las empresas señaladas, en virtud de lo cual se le pagaban honorarios” (acusación subida al escritorio virtual el 18 de octubre de 2016, pp. 2 y 3). Posteriormente, la acusación precisó el dato de cada una de las declaraciones en las que se concretó el referido proceder. En cuanto a aquellas relacionadas con el presente reclamo, se indicó en la pieza acusatoria: “9.-Fue así como en fecha 14 de diciembre de 2010 la acusada [Nombre1] con la intención de beneficiarse mediante el pago inferior de las cargas tributarias presentó personalmente o por medio de interpósita persona en una sucursal del Scotiabank simultáneamente las Declaraciones Juradas del Impuesto Sobre la Renta D-101 números [Identificacion8] a nombre de Inversiones BEYOF Sociedad Anónima […]” (acusación, p. 14); y “3.-Fue así como, las acusadas [Nombre1] e [Nombre6] , actuando de común acuerdo según el plan ideado para defraudar a la administración tributaria con la finalidad de disminuir sus responsabilidades tributarias y beneficiarse con el pago inferior de las cargas tributarias, presentaron simultáneamente las declaraciones [Identificacion9] a nombre de la empresa Inversiones BEYOF Sociedad Anónima, número [Identificacion22] a nombre de la ofendida [Nombre5] , número [Identificacion10] a nombre de Edificio ADROFER Sociedad Anónima y [Identificacion11] a nombre de Consultoría ORS y Asociados Sociedad Anónima en fecha 9 de diciembre de 2011 en la misma sucursal del Banco Scotiabank, Scotia Private Client Group Transito #204” (acusación, pp. 15 y 16). Con excepción de los cambios que se realizaron en la parte introductoria, en virtud de que se condenó a la justiciable solo por conductas posteriores al año dos mil nueve, lo transcrito fue prácticamente reiterado en los hechos demostrados del fallo (sentencia, pp. 104, 105, 113 y 114), de manera que no se aprecia un quebranto a la correlación entre acusación y sentencia si se comparan hechos acusados y hechos demostrados. Sin embargo, la recurrente detecta ciertas diferencias entre la acusación y lo consignado en el apartado de análisis de fondo. Lo que no debe dejar de lado, es que ello es producto del natural enriquecimiento que deriva de la recepción de la prueba durante el juicio. Así, en lo que la apelante identifica como el “hecho número 12” —que no es un hecho demostrado, sino uno que corresponde a la fundamentación—, al hacer el análisis intelectivo, se indica: “12)D-101 número [Identificacion8], con la intención de beneficiarse mediante el pago inferior de las cargas tributarias, [Nombre1] firmó dicha declaración que se encontraba a nombre de Inversiones Beyof S.A., en la cual se incluyó información falsa referente a los gastos de venta y administrativos, en los cuales incluían los gastos reportados a nombre de [Nombre5] , declaración que fue presentada a la Administración Tributaria, el día 14 de diciembre del 2010, y que a mayor abundamiento, se tiene claro que dicha declaración la firmó la sentenciada Taitelbaum, puesto que en el Informe Pericial N° DCF: 2015-01402-AED emitido por la Sección de Análisis de Escritura y Documentos Dudosos del Departamento de Ciencias Forenses, en el Resultado 12 se confirma su firma […]” (sentencia, p. 189, negrita del original). La queja de la recurrente es que en el hecho 9 del año dos mil diez, en la acusación, no se precisaba que esa declaración estaba relacionada con pagos ficticios a [Nombre5] , lo que efectivamente es cierto. Sin embargo, deja de lado que ese hecho 9 de la acusación no puede leerse aislado de la parte general de la misma, arriba transcrita, que indica claramente que las maniobras llevadas adelante por la encartada y la asistente de contabilidad [Nombre6] , consistían, precisamente, en atribuir a las empresas representadas por [Nombre1] el pago de servicios inexistentes a la señora [Nombre5]. El punto 12, del que se queja la impugnante, no es más que otra forma de redactar lo mismo que ya está incluido en la pieza acusatoria, si se quiere, con mayor precisión. Lo fundamental, es que con esa redacción no se introduce nada que no pueda extraerse de la lectura completa del requerimiento fiscal. El error de la apelante radica en que comparar ese punto 12 con la lectura exclusiva del hecho acusado número 9, llegando entonces a una interpretación sesgada. Algo similar ocurre con el llamado “hecho 16”, que se aprecia en la fundamentación intelectiva del fallo. En él afirma el a quo: “16)D-101 número [Identificacion38], en la cual se incluyó información falsa referente a los gastos de venta y administrativos de la empresa Edificio Adrofer S.A., por un monto de un millón de colones, que incluía los gastos ficticios reportados a nombre de [Nombre5] , y con la intención de beneficiarse mediante el pago inferior de las cargas tributarias, dicha declaración fue presentada a la Administración Tributaria el día 9 de diciembre del 2011, y a mayor abundamiento, se tiene claro que dicha declaración la firmó la sentenciada Taitelbaum, puesto que en el Informe Pericial N° DCF: 2015-01402-AED emitido por la Sección de Análisis de Escritura y Documentos Dudosos del Departamento de Ciencias Forenses, en el Resultado 21 se confirma su firma […]” (pp. 191 y 192). La queja es por la inclusión de montos y el nombre de la señora Otárola, lo que no se aprecia en el hecho 3 de año dos mil once de la acusación. Pero la precisión del monto es producto de la prueba evacuada en juicio y, lo más importante, la descripción esencial de la conducta no ha variado, en tanto se evite el error de leer ese hecho 3 separado de la parte introductoria de la acusación. Finalmente, la queja del “hecho 17” deriva del mismo tipo de error. En la valoración de fondo, el tribunal señaló: “17) D-101 número [Identificacion39], en la cual se incluyó información falsa referente a los gastos de venta y administrativos de la empresa Consultoría ORS y Asociados S.A., que incluía los gastos ficticios reportados a nombre de [Nombre5] , y con la intención de beneficiarse mediante el pago inferior de las cargas tributarias, dicha declaración fue presentada a la Administración Tributaria el día 9 de diciembre del 2011, y a mayor abundamiento, se tiene claro que dicha declaración la firmó la sentenciada Taitelbaum, puesto que en el Informe Pericial N° DCF: 2015-01402-AED emitido por la Sección de Análisis de Escritura y Documentos Dudosos del Departamento de Ciencias Forenses, en el Resultado 27 se confirma su firma” (p. 192, negrita del original). Una vez más habrá que indicar que la referencia a la inclusión de gastos a favor de doña [Nombre5] no es un tema ajeno a la acusación, en tanto no se incurra en el error de leer el hecho 3 del año dos mil once en forma aislada, entendiendo que, como unidad que es, la acusación no puede comprenderse si se excluye su parte general. A pesar de que los errores que se señalan en este motivo no son de recibo, valga señalar que, por razones distintas, indicadas en el considerando anterior, la condenatoria por las declaraciones número [Identificacion10] de Edificio Adrofer Sociedad Anónima y [Identificacion11] de Consultoría ORS y Asociados Sociedad Anónima fueron anuladas, lo que se tendrá en cuenta en la parte dispositiva del fallo. Por lo dicho, corresponde el rechazo del motivo que aquí se conoce.

XIV.- RECURSO DE LA PROCURADURÍA GENERAL DE LA REPÚBLICA. El licenciado Miguel H. Cortés Chaves, Procurador de la Ética, recurre también la sentencia dictada en esta causa. Como único motivo, alega falta de fundamentación y fundamentación contradictoria en el rechazo del extremo civil por daño social. Afirma que se acreditó que la imputada usó falsamente documentos, siendo una persona que ejercía un importante cargo en la función pública, la cual se vio mancillada por los hechos cometidos. La misma jerarca de la Defensoría de los Habitantes pidió a un particular que mintiera a un periodista para no manchar su nombre, porque su puesto era muy importante, reconociendo que se lesionaba la imagen de la institución. Una persona jurídica como la Defensoría de los Habitantes puede recibir daño moral, sobre todo por conductas como la de su jerarca, que perjudican los valores intangibles que constituyen parte del valor patrimonial de la institución. El interés lesionado en el presente caso es público, por la evasión realizada por un funcionario público que ejercía el más alto cargo en la Defensoría. El hecho de que a un funcionario público se le siguiera proceso por un delito y fuera condenado, aunque fuera por actuaciones realizadas en la esfera personal, genera un daño social. Al jerarca de esa institución se le exige solvencia moral, conforme al artículo 4 de la Ley de la Defensoría de los Habitantes. La Defensoría es el órgano encargado de defender los derechos e intereses de los habitantes. Debe velar porque el funcionamiento del sector público se ajuste a la moral, la justicia, la Constitución Política, las leyes, los convenios, tratados y pactos suscritos por el Gobierno y los principios generales del derecho. La fundamentación del tribunal fue contradictoria cuando consideró que los hechos los realizó en su esfera privada, pero luego indicó que ese cargo llama a guardar un comportamiento como ciudadano honesto, decente, moral, como figura pública en la esfera privada. El daño social es una categoría del daño inmaterial, sujeto a las mismas reglas del daño moral. La imputada [Nombre6] reconocía que estos hechos perjudicaban a la justiciable [Nombre1] por ser una figura pública. Las personas que conocieron las noticias manifestaron su descontento en redes sociales. Sostiene que los funcionarios públicos deben respetar los valores éticos y cita un dictamen de la Procuraduría General de la República. El artículo 38 del Código Procesal Penal permite a la Procuraduría ejercer la acción civil cuando se afecten intereses colectivos y difusos. El tribunal pudo derivar la existencia de un daño social, como daño inmaterial, sin tener prueba directa y haciendo una derivación sobre presunciones humanas. Por ello pide declarar admisible el recurso, anular la resolución en cuanto al rechazo del daño social y resolver conforme a derecho. Con lugar. La sentencia bajo examen rechazó el rubro de daño social de la acción civil, argumentando la falta de relación causal entre las conductas realizadas y el daño invocado (sentencia, p. 262). No obstante, si se profundiza en el razonamiento del tribunal, ese problema de causalidad del que habla, tiene que ver con la separación de las esferas de lo público y lo privado en que se desenvolvió la imputada. El tribunal lo dijo así: “Los hechos acreditados los realizó la demandada civil en su esfera privada, incluso bajo el carácter de representante ostentado en tres sociedades anónimas de las cuales era parte y apoderada, no así en ejercicio de su función en el puesto de Defensora de los Habitantes, cargo público que si bien ejercía en ese momento de los hechos, lo cierto es que el mismo llama a guardar un buen comportamiento como ciudadano, a ser honesto, decente, moral, como figura pública en su esfera privada, y en eso si falló gravemente como se expuso en el apartado de fijación y fundamentación de la pena; pero, no por ello puede decirse que en dicha esfera privada, personal, incluso familiar (pues las tres sociedades también pertenecen a sus familiares) debe actuar con un deber de probidad, pues ya no está dentro de institución pública alguna, no está dirigiendo a ningún funcionario público, no está tomando decisiones que repercutan en la institución en la que labora (Defensoría de los Habitantes), sino que pasa a ser un ciudadano igual que todos; razón por la cual resulta erróneas las apreciaciones y por ende la conclusión que sostuvo el perito en su informe, así como lo expuesto en debate. / Amén de lo anterior, ha quedado sumamente claro que lo violentado fue la FE PÚBLICA como bien jurídico tutelado (ver considerando sobre calificación legal), no así el deber de probidad como para que se pueda aceptar la tesis del actor civil en el sentido de que se produjo el daño social alegado, al afectarse la imagen y la confianza que tenía el pueblo en dicha representación, en dicha institución pública” (pp. 262 y 263, resalte del original). Como se puede apreciar, el argumento subyacente es que la actividad delictiva de la defensora de los habitantes, realizada en el ámbito de su vida privada, no puede causar un daño social; que solo cuando delinque en el ejercicio de sus funciones y violentando su deber de probidad, tiene la posibilidad de causar un daño de esa naturaleza. En otras palabras, la opinión del órgano juzgador no es, simplemente, que a la luz de los hechos acreditados la actuación de la defensora no causó un daño a la sociedad, sino que, por la naturaleza de las actuaciones, ese daño no es posible. Esta cámara no comparte dicho criterio. Desde que presentó el memorial de acción civil, la Procuraduría General de la República señaló que “Es indudable que los hechos aquí demandados constituyen hechos de corrupción que además del daño directo que pudieron ocasionar al erario público, se ha provocado un daño social, por la disminución de credibilidad en los funcionarios públicos y que aquí se reclama con la interposición de la presente Acción Civil Resarcitoria de conformidad con lo establecido en el artículo 38 del mismo cuerpo legal” (acción civil subida al escritorio virtual el 30 de noviembre de 2016, p. 30). Entonces cabe preguntar: ¿puede la comisión de treinta y dos delitos de uso de falso documento —o veintinueve, si se toman en cuenta las nulidades aquí dispuestas— por parte de la Defensora de los Habitantes, en el marco de una actividad delictiva coordinada y estructurada a través de varios años, minar la credibilidad de dicha institución? La respuesta es afirmativa. En primer lugar, porque la misma Ley de la Defensoría de los Habitantes de la República considera esencial la calidad moral de quien ha de ostentar su dirección. El artículo 4 de dicha ley señala que “Podrá ser nombrada defensor o defensora de los habitantes de la República, la persona costarricense que se encuentre en el ejercicio de sus derechos civiles y políticos, que sea mayor de treinta años, con solvencia moral y profesional de prestigio reconocidos […]”. Véase que ese es un “requisito de ingreso”, una condición previa para aspirar al cargo de Defensor de los Habitantes; el sujeto debe haber dado muestras de ser titular de esa solvencia moral, aún antes de formar parte de la institución. Quien pretende ocupar el cargo no puede alegar que su comportamiento previo, al no haberse realizado en el ejercicio de las funciones, no es relevante; se trata de un requisito consustancial al cargo. No podía ser de otra forma, si se considera cuál es la función de dicho órgano. El artículo 2 de su ley describe así su atribución general: “La Defensoría de los Habitantes de la República es el órgano encargado de proteger los derechos y los intereses de los habitantes. / Este órgano velará porque el funcionamiento del sector público se ajuste a la moral, la justicia, la Constitución Política, las leyes, los convenios, los tratados, los pactos suscritos por el Gobierno y los principios generales del Derecho. Además, deberá promocionar y divulgar los derechos de los habitantes”. ¿Cómo podría velar por la moral en el funcionamiento del sector público un jerarca que tuviera serios cuestionamientos en ese ámbito? Ello se refuerza aún más con lo indicado en el numeral 6 de la referida ley, que señala: “El Defensor de los Habitantes de la República cesará en sus funciones, por cualquiera de las siguientes causales: / […] d) Haber sido condenado, en sentencia firme, por delito doloso”. La condición de delincuente, a título doloso, es absolutamente incompatible con la de defensor de los habitantes, sin importar si el delito se cometió, o no, como parte del ejercicio del cargo. No se trata solo de una exigencia legal, más o menos afortunada. En realidad, la honorabilidad del defensor de los habitantes es fundamental para el cumplimiento de los deberes de la Defensoría, ya que las competencias que le ha atribuido la ley son meramente investigativas y de denuncia (artículos 12 a 14 de la normativa citada); el Defensor solamente ejerce una magistratura moral. Careciendo del peso moral requerido, que se construye de cara a la ciudadanía, la fuerza institucional se debilita y el cumplimiento de su función se entorpece. Si los ciudadanos llegan a considerar que el Defensor de los Habitantes tiene un comportamiento moral inapropiado en sus negocios y que incurre en actuaciones delictivas sistemáticas, en contubernio con terceros, se puede llegar a afectar, severamente, la eficacia de la institución en nuestra sociedad. Por todo lo anterior, esta cámara de apelación no puede compartir el supuesto básico que asume el tribunal de mérito para rechazar el daño social. El comportamiento delictivo doloso de la persona defensora de los habitantes, verificado en su ámbito privado, sí puede llegar a generar un daño a la institución y, consecuentemente, afectar a la sociedad. Debe quedar claro que el tribunal no prejuzga sobre la procedencia del extremo en cuestión, lo cual implicaría el análisis de la prueba en el caso concreto, tema que es de exclusiva competencia del tribunal de juicio; simplemente se afirma que el presupuesto fundamental del que partió el a quo es equivocado, lo que amerita la nulidad dispuesta.

XV.- Voto Salvado del Juez González González. Se declara con lugar el primer motivo de impugnación del licenciado Fabio Oconitrillo Tenorio y la licenciada Gloriana Jiménez Rey, en su condición de abogados defensores de la imputada [Nombre1] , y el tercer motivo de impugnación del recurso de apelación de sentencia presentado por la sindicada [Nombre1] , bajo el patrocinio legal del Dr. Javier LLobet Rodríguez. Consecuentemente, se absuelve penalmente a [Nombre1] por treinta y dos delitos de uso de documento falso que se le atribuyen en perjuicio de la fe pública. Por como se resuelve, se ordena el levantamiento de las medidas cautelares ordenadas en contra de [Nombre1] . Sobre el fondo: Con respeto al voto de mayoría que suscriben los Jueces Mena Artavia y Araya Vega, concurro a emitir un voto disidente, en síntesis, porque estimo que en el sub judice era de aplicación las normas tributarias (Código de Normas y Procedimientos Tributarios), por su especialidad, y no las generales (Código Penal), con relación al tema de las falsedades documentales que se acusa cometió la encartada. De modo que, era de ineludible correlación los artículos 66, 67, 70, 81, 89 y 92 del Código de Normas y Procedimientos Tributarios (en adelante [Nombre27].), Ley N˚ 4755, con los numerales 23, 368 y 372 del Código Penal, para concluir que se está ante un concurso aparente de normas cuando, para defraudar a la hacienda pública (hecho ilícito tributario que puede calificarse como infracción administrativa o delito tributario, dependiendo de la cuantía de la cuota defraudada), la mendacidad recae en el contenido de la declaración de autoliquidación de hechos generadores de una obligación tributaria (falsedad de contenido en documento privado), que luego es presentada a la Administración Tributaria por el contribuyente (uso de documento privado falso). Así, conviene citar que el artículo 65 del C.N.P.T. establece que los hechos ilícitos son uno y que, dependiendo de si se clasifican como infracciones administrativas o delitos tributarios, se conocerán por la Administración Tributaria o el Poder Judicial. Empero, siempre bajo el entendido de que el sujeto pasivo no podrá ser sancionado por el mismo hecho ilícito tributario en más de una ocasión, sea con el mismo fundamento y por los mismos hechos (doble pronunciamiento frente a una misma incriminación), como garantía de seguridad jurídica que le proporciona el principio non bis in ídem. El artículo 66 del C.N.P.T. lo dispone así: “Comprobación de hechos ilícitos tributarios La comprobación de los hechos ilícitos tributarios deberá respetar el principio "non bis in idem", de acuerdo con las siguientes reglas: a) En los supuestos en que las infracciones puedan constituir delitos tributarios, la Administración trasladará el asunto a la jurisdicción competente, según el artículo 89, y se abstendrá de seguir el procedimiento sancionador mientras la autoridad judicial no dicte sentencia firme. La sanción de la autoridad judicial excluirá la imposición de sanción administrativa por los mismos hechos. // De no haberse estimado la existencia del delito, la Administración continuará el expediente sancionador con base en los hechos considerados por los tribunales como probados. b) En los supuestos en que la Administración Tributaria ya haya establecido una sanción, ello no impedirá iniciar y desarrollar la acción judicial. Sin embargo, si esta resulta en una condenatoria del sujeto, las infracciones que puedan considerarse actos preparatorios del delito, sean acciones u omisiones incluidas en el tipo delictivo, se entenderán subsumidas en el delito. Por tanto, las sanciones administrativas impuestas deberán ser revocadas, si su naturaleza lo permite”. Este principio, aunque sobre un ilícito tributario diferente al que aquí se conoce (cierre de locales), fue desarrollado por la Sala Constitución al sostener: “VII.- Non bis in idem. Otro tema importante con respecto al cierre, y tal vez uno de los que presenta mayor complejidad, es el de respeto a este principio y su aplicación cuando exista concurso de infracciones. El non bis in idem, tutelado en el artículo 42 de nuestra Constitución Política, pretende evitar la doble sanción por un mismo hecho; así, éste resultaría vulnerado cuando, como consecuencia de la realización de un único hecho, se impone a la persona responsable del mismo una duplicidad de sanciones. La doctrina le ha asignado como consecuencias, en primer lugar, la prohibición de sancionar penal y administrativamente por unos mismos hechos; segundo, la preferencia de las actuaciones penales sobre las administrativas, en el sentido de que el procedimiento incoado en sede penal impide cualquier ulterior, y, tercero, el deber de la Administración de respetar el cuadro fáctico analizado por los Tribunales. Estas consecuencias, derivan del carácter auxiliar y delegado que tienen las potestades sancionadoras administrativas con respecto al Poder Judicial, pues dadas las diferencias existentes entre Administración y Jurisdicción y el sometimiento constitucional de aquélla a ésta, resulta de toda lógica la prioridad de los Tribunales a la hora de conocer de unos hechos susceptibles de una doble calificación. Para la infracción de este principio debemos estar frente al mismo hecho sancionado doblemente, entendido éste como identidad del sujeto, hecho y fundamento, requisitos para cuya verificación existen problemas pues, en algunos supuestos, un mismo hecho puede lesionar intereses distintos, protegidos en normas diferentes y constitutivas de varios delitos o infracciones y dando origen, en consecuencia, a varias sanciones sin que se vulnere principio alguno. La doctrina señala que no existe bis in idem cuando del mismo hecho hayan surgido dos resultados independientes corregibles por entidades distintas o susceptibles de integrarse en esferas o categorías jurídicas concurrentes pero diferenciadas, pudiéndose corresponder distintos pero simultáneos aspectos de responsabilidad. En estos casos se trata de cuestiones de distinta naturaleza, por lo que se habla de un concurso ideal. Este supone naturalmente, un mismo hecho que viola diversas disposiciones legales, con la característica básica de que éstas no se excluyen entre sí. Debe entenderse que, no se produce violación del non bis in idem si las sanciones se acumulan total o parcialmente, precisamente porque no se da la identidad de fundamento. Contrario es el caso del concurso aparente de normas que exige la prevalencia de una de las disposiciones, determinando la inaplicación de las demás, en cuyo caso, si se acumulan las sanciones sí se produce la violación” (Resolución N˚ 2000-08191 de las 15:03 horas, del 13 de setiembre de 2000. El énfasis es suplido). Como se colige de las normas de cita y la jurisprudencia mencionada, no existe un criterio cualitativo entre infracciones administrativa y delitos tributarios, al catalogarlos a ambos como “hechos ilícitos tributarios”, sino una diferencia formal, bajo el entendido de que el ilícito administrativo también encierra en sí mismo un juicio desvalorativo ético-social que, por su menor gravedad (atendiendo a su cuantía como criterio valorativo, según el artículo 81 y 92 del C.N.P.T.) conlleva una sanción administrativa y no una penal. Aunado a que, al no existir una diferencia en el bien jurídico protegido, la hacienda pública, parece acertada la decisión, por política criminal, de regular y proteger por el derecho penal solo los intereses esenciales y amparar por el derecho administrativo las lesiones que como consecuencia de la defraudación afecten los intereses del Estado con menor intensidad, al amparo del principio de intervención mínima y de última ratio. En este contexto es que se ubica el hecho ilícito tributario denominado “infracciones materiales por omisión, inexactitud, o por solicitud improcedente de compensación o devolución, o por obtención de devoluciones improcedentes”, descrito en el artículo 81 del C.N.P.T. y el delito de fraude a la hacienda pública, dispuesto en el numeral 92 ibídem. Claro está, con relación a las conductas activas y omisivas dolosas tendientes a la defraudación del erario público, por cuanto en el numeral 81 también se incluyen conductas imprudentes o, incluso, por actuación bajo error (las cuales no se están analizando en el caso concreto). En este orden, según la norma de cita, constituyen infracciones tributarias, y se encuentran sancionadas con multa, entre otras conductas, el: “1. […] b) Presentar declaraciones autoliquidaciones inexactas. Esta infracción se configura cuando los sujetos pasivos dejen de ingresar, dentro de los plazos legalmente establecidos, las cuotas tributarias que correspondan, por medio de la presentación de declaraciones autoliquidaciones inexactas. Para estos fines, se entenderá por inexactitud: i. El empleo de datos falsos, incompletos o inexactos, de los cuales se derive un menor impuesto o un saldo menor por pagar o un mayor saldo a favor del contribuyente o responsable. ii. Las diferencias aritméticas que contengan las declaraciones presentadas por los sujetos pasivos. Estas diferencias se presentan cuando al efectuar cualquier operación aritmética resulte un valor equivocado o se apliquen tarifas distintas de las fijadas legalmente que impliquen, en uno u otro caso, valores de impuestos menores o saldos a favor superiores a los que debían corresponder. iii. Tratándose de la declaración de retenciones en la fuente, la omisión de alguna o la totalidad de las retenciones que debieron haberse efectuado, o las efectuadas y no declaradas, o las declaradas por un valor inferior al que corresponda. // La base de la sanción será la diferencia entre el importe liquidado en la determinación de oficio y el importe autoliquidado en la declaración del sujeto pasivo. […] 3. Sanciones aplicables. Las infracciones materiales descritas en los subincisos a), b), c) y d) del inciso 1 de este artículo serán sancionadas con una multa pecuniaria del cincuenta por ciento (50%) sobre la base de la sanción que corresponda. // Para todas las infracciones anteriores que pudieran calificarse como graves o muy graves, según se describe a continuación, y siempre que la base de la sanción sea igual o inferior al equivalente de quinientos salarios base, se aplicarán las sanciones que para cada caso se establecen: […] b) Se calificarán como muy graves aquellas infracciones en las que se hayan utilizado medios fraudulentos, entendiéndose por tales: i. Las anomalías sustanciales en la contabilidad y en los libros o los registros establecidos por la normativa tributaria. Se consideran anomalías sustanciales: el incumplimiento absoluto de la obligación de llevar la contabilidad o los libros o los registros establecidos por la normativa tributaria; el llevar contabilidades distintas que, referidas a una misma actividad y ejercicio económico, no permitan conocer la verdadera situación de la empresa; el llevar de forma incorrecta los libros de contabilidad o los libros o registros establecidos por la normativa tributaria, mediante la falsedad de asientos, registros o importes, o la contabilización en cuentas incorrectas de forma que se altere su consideración fiscal. La aplicación de esta última circunstancia requerirá que la incidencia de llevar incorrectamente los libros o los registros represente un porcentaje superior al cincuenta por ciento (50%) de la base de la sanción. ii. El empleo de facturas, justificantes u otros documentos falsos o falseados, siempre que la incidencia de los documentos o soportes falsos o falseados represente un porcentaje superior al diez por ciento (10%) de la base de la sanción. iii. La utilización de personas o entidades interpuestas cuando el sujeto infractor, con la finalidad de ocultar su identidad, haya hecho figurar a nombre de un tercero, con o sin su consentimiento, la titularidad de los bienes o derechos, la obtención de las rentas o las ganancias patrimoniales o la realización de las operaciones con trascendencia tributaria de las que se deriva la obligación tributaria, cuyo incumplimiento constituye la infracción que se sanciona. // Cuando la infracción sea calificada como muy grave, se impondrá una sanción del ciento cincuenta por ciento (150%) sobre la totalidad de la base de la sanción que corresponda” (El resaltado es propio). Como se aprecia, la acción de “empleo de datos falsos”, necesariamente conlleva una conducta dolosa tendiente a engañar o defraudar a la hacienda pública, en tanto se exige el conocimiento de que los datos no sean verdaderos y que, con su uso (voluntad del agente), se producirá “un menor impuesto o un saldo menor por pagar o un mayor saldo a favor del contribuyente o responsable”. Incluso, se cataloga como muy grave aquellas infracciones en la que se determine “El empleo de facturas, justificantes u otros documentos falsos o falseados” o “La utilización de personas o entidades interpuestas”, cuando se utilicen para ocultar a la Administración Tributaria su condición de sujeto pasivo de la obligación tributaria, haciendo figurar (que no es otro modo más de inducir a error a la hacienda pública) “…a nombre de un tercero, con o sin su consentimiento”, la titularidad sobre: i) bienes o derechos, ii) la obtención de las rentas o las ganancias patrimoniales y, iii) la realización de las operaciones con trascendencia tributaria. Corolario, lo expuesto por el a quo, sobre que la norma del artículo 81 del C.N.P.T. solo hace referencia a errores contables o materiales que se presentan en las autoliquidaciones que se catalogan como inexactas, es incorrecta, por contravenir la literalidad y gramática de la norma y, como de seguido se expondrá, su interpretación teleológica. En este sentido, no puede soslayarse que la norma citada fue modificada por el artículo 1° de la ley N° 9069 del 10 de setiembre del 2012, "Ley de Fortalecimiento de la Gestión Tributaria", por lo que, prima facie, en apego al principio de irretroactividad de la ley y de aplicación de la ley sancionatoria en el tiempo (artículo 11 del Código Penal), esta reforma solo le sería aplicable a las conductas realizadas por medio de las autoliquidaciones sobre el impuesto de renta que se presentaron en los períodos fiscales del año 2012 y 2013; mientras que su redacción anterior a los eventos efectuados por medio de las autoliquidaciones de los períodos 2009, 2010 y 2011. No obstante, la descripción normativa del artículo 81 C.N.P.T. vigente para estos últimos períodos fiscales no era muy diferente y, en una u otra, siempre se mantuvo el injusto por las conductas engañosas efectuadas en perjuicio de la hacienda pública. Nótese que, conforme la reforma que sufrió este numeral por el artículo 2˚ de la ley N˚ 7900 de 3 de agosto de 1999, siempre se sancionaba la presentación de declaraciones inexactas por “el empleo de datos falsos […] de los cuales se derive un menor impuesto o un saldo menor a pagar o un mayor saldo a favor del contribuyente o responsable”. Igualmente establecía que este era un tipo de engaño a la Administración Tributaria, pero que solo sería sancionado (administrativamente), si se superaba la cuantía que para aquel momento estaba dispuesta. Así lo describe el mencionado artículo: “En los casos descritos en este artículo en que la Administración Tributaria determine que se le ha inducido a error, mediante simulación de datos, deformación u ocultamiento de información verdadera o cualquier otra forma idónea de engaño, por un monto inferior a doscientos salarios base, la sanción será del setenta y cinco por ciento (75%)” (El énfasis es suplido). Corolario, no se puede negar que con una u otra redacción del artículo 81 del C.N.P.T., según las reformas de ley que ha sufrido dentro del período en que se dio el hecho generador tributario (antes y después del año 2012), siempre se ha mantenido la misma finalidad de la norma tributaria, cual es diferenciar el injusto administrativo del injusto penal a partir de la cuantía económica que se deriva de la defraudación. Esto es así, por cuanto el artículo 92 del C.N.P.T., que estuvo en vigencia desde 3 de agosto de 1999 (ley N˚ 7900) y hasta el 10 de setiembre de 2012 (ley N˙ 9069), disponía: “Inducción a error a la Administración Tributaria. // Cuando la cuantía del monto defraudado exceda de doscientos salarios base, será sancionado con prisión de cinco a diez años quien induzca a error a la Administración Tributaria, mediante simulación de datos, deformación u ocultamiento de información verdadera o cualquier otra forma de engaño idónea para inducirla a error, con el propósito de obtener, para sí o para un tercero, un beneficio patrimonial, una exención o una devolución en perjuicio de la Hacienda Pública. // Para los efectos de lo dispuesto en el párrafo anterior debe entenderse que: a) El monto defraudado no incluirá los intereses, las multas ni los recargos de carácter sancionatorio. b) Para determinar el monto mencionado, si se trata de tributos cuyo período es anual, se considerará la cuota defraudada en ese período; para los impuestos cuyos períodos sean inferiores a doce meses, se adicionarán los montos defraudados durante el lapso comprendido entre el 1º de enero y el 31 de diciembre del mismo año. // En los demás tributos, la cuantía se entenderá referida a cada uno de los conceptos por los que un hecho generador es susceptible de determinación. // Se considerará excusa legal absolutoria el hecho de que el sujeto repare su incumplimiento, sin que medie requerimiento ni actuación alguna de la Administración Tributaria para obtener la reparación. Para los efectos del párrafo anterior, se entenderá como actuación de la Administración toda acción realizada con la notificación al sujeto pasivo, conducente a verificar el cumplimiento de las obligaciones tributarias referidas al impuesto y período de que se trate” (El resaltado es propio). Como se aprecia, al igual que lo hacía el artículo 81 del C.N.P.T., se sancionaba a quien indujera a error a la Administración Tributaria, entre estos, por simulación de datos o cualquier otra forma de engaño (dentro las cuales no se puede excluir la inclusión de datos falsos en las declaraciones de autoliquidación del tributo), con el propósito o finalidad de obtener un beneficio patrimonial -sea para sí o para un tercero-. Asimismo, en consonancia con el artículo 81 C.N.P.T., el artículo 92 (vigente para los períodos fiscales que se acusan defraudados, año 2009, 2010 y 2011) disponía que el injusto tributario solo sería considerado delito, y no una infracción administrativa, cuando excediera del quantum económico dispuesto para tales fines -doscientos salarios base para dicho momento-. Este injusto penal no vario con la reformar al artículo 92 de cita, efectuada por el artículo 1° de la ley N° 9069 del 10 de setiembre del 2012, "Ley de Fortalecimiento de la Gestión Tributaria", que dispone: “Fraude a la Hacienda Pública. // El que, por acción u omisión, defraude a la Hacienda Pública con el propósito de obtener, para sí o para un tercero, un beneficio patrimonial, evadiendo el pago de tributos, cantidades retenidas o que se hayan debido retener, o ingresos a cuenta de retribuciones en especie u obteniendo indebidamente devoluciones o disfrutando beneficios fiscales de la misma forma, siempre que la cuantía de la cuota defraudada, el importe no ingresado de las retenciones o los ingresos a cuenta o de las devoluciones o los beneficios fiscales indebidamente obtenidos o disfrutados exceda de quinientos salarios base, será castigado con la pena de prisión de cinco a diez años. // Para los efectos de lo dispuesto en el párrafo anterior debe entenderse que: a) El monto de quinientos salarios base se considerará condición objetiva de punibilidad. b) El monto no incluirá los intereses, las multas ni los recargos de carácter sancionador. c) Para determinar la cuantía mencionada, si se trata de tributos, retenciones, ingresos a cuenta o devoluciones, periódicos o de declaración periódica, se estará a lo defraudado en cada período impositivo o de declaración y, si estos son inferiores a doce meses, el importe de lo defraudado se referirá al año natural. En los demás supuestos la cuantía se entenderá referida a cada uno de los distintos conceptos por los que un hecho imponible sea susceptible de liquidación. // Se considerará excusa legal absolutoria el hecho de que el sujeto repare su incumplimiento, sin que medie requerimiento ni actuación de la Administración Tributaria para obtener la reparación. // Para los efectos del párrafo anterior, se entenderá como actuación de la Administración toda acción realizada con la notificación al sujeto pasivo, conducente a verificar el cumplimiento de las obligaciones tributarias” (El énfasis es suplido). En este caso, al revisarse el contenido etimológico de la acepción “defraudar” esta se precisa como: "1. tr. Privar a alguien, con abuso de su confianza o con infidelidad a las obligaciones propias, de lo que le toca de derecho. 2. tr. Frustrar, desvanecer la confianza o la esperanza que se ponía en alguien o en algo. 3. tr. Eludir o burlar el pago de los impuestos o contribuciones" (REAL ACADEMIA ESPAÑOLA: Diccionario de la lengua española, 23.ª ed., [versión 23.3 en línea]. https://dle.rae.es. Recuperado el 17 de noviembre de 2020. Al igual que, para el Diccionario citado "burlar" está definido como "2. tr. engañar (inducir a tener por cierto lo que no lo es)". A través de estas distintas definiciones, puede concluirse que el contenido de la acción ilícita en el artículo 92 del Código de Normas y Procedimientos Tributarios, es similar a la del derogado numeral 92 de ese mismo cuerpo legal y, a su vez, en parte de la conducta ilícita administrativa descrita en el artículo 81 del C.N.P.T., puesto que en todas ellas impera la conducta de inducir a error a la Administración Tributaria con el propósito obtener, para sí o para un tercero, un beneficio patrimonial, en perjuicio de la hacienda pública. De este modo, como lo ha sostenido la Sala Constitucional, criterio que comparte quien suscribe este voto de minoría: “…el ordinal 81 y 92 del Código de Normas y Procedimientos Tributarios, responden a una naturaleza jurídica y a faltas diversas, una de tipo administrativo y otra de índole penal. Particularmente, debe de notarse que, a pesar que ambos artículos contienen, dentro de alguna parte de su descripción fáctica, que a la administración tributaria se la haya inducido a error “mediante simulación de datos, deformación u ocultamiento de información verdadera o cualquier otra forma de engaño idónea”, lo cierto es que, de otra parte, entre éstos existe una diferencia esencial en cuanto a su regulación […], que radica precisamente en la determinación del quantum económico que se deriva del error o defraudación, el cual, a su vez, se calcula con respecto a los salarios base a los que se hizo referencia en el considerando anterior y sobre los cuales, se aclaró, esta Sala no emitirá criterio alguno” (cfr. Resolución N˙ 2015-10498 de las 09:43 horas, del 15 de julio de 2015). En otras palabras, las dos normas coinciden en cuanto ambas sancionan la conducta ilícita de inducir a error a la administración, empero, la aplicación de una u otra responde a la naturaleza jurídica de si es administrativa o penal, a partir de la cuantía defraudada. Queda claro, para el tribunal constitucional y para quien suscribe este voto de minoría, en este supuesto fáctico, que la competencia de la sede administrativa o penal no obedece a criterios cualitativos, sino a uno formal o de política criminal, como supra se expuso y, por ende, el quantum económico reviste suma importancia, al ser considerado por el legislador como “una condición objetiva de punibilidad” (aspecto que se tratará infra). Aunado a esto, conforme al artículo 120 C.N.P.T. en nuestro entorno rige el principio de autoliquidación de la obligación tributaria, el cual consiste en que el contribuyente, de manera voluntaria, liquide lo que debe cancelar por el pago de tributos, una vez que se configure y verifique el hecho generador. De modo que, esta autodeterminación debe efectuarse “…de acuerdo con las declaraciones juradas que presenten los contribuyentes y responsables en el tiempo y las condiciones establecidas por la Administración Tributaria […] Debe entenderse por declaración jurada, la determinación de la obligación tributaria efectuada por los contribuyentes y responsables, bajo juramento, en los medios aludidos en los párrafos anteriores, con los efectos y las responsabilidades que determina este Código” (artículo 122 ibídem). Además, estas “…se presumen fiel reflejo de la verdad y responsabilizan al declarante por los tributos que de ellas resulten, así como por la exactitud de los demás datos contenidos en tales declaraciones […]” (artículo 130 ibíd.). Bajo este norte, se verifica que las normas tributarias no hacen una referencia expresa a si tales documentos de autoliquidación son públicos o privados. Sin embargo, recurriendo a la literalidad de los artículos referidos, y a la definición de documentos que se hace en el Código Procesal Civil, puede catalogarse aquellos como privados. En este orden, la ley utiliza un método de exclusión para poder calificar los documentos, entendiendo que son documentos privados aquellos que “…no tengan la condición de públicos”, y que son documentos públicos “…todos aquellos redactados o extendidos por funcionarios públicos, según las formas requeridas y dentro del límite de sus atribuciones y los calificados con ese carácter por la ley. También, tendrán esa naturaleza los otorgados en el extranjero con ese carácter en virtud de tratados, convenios internacionales o el derecho internacional. A falta de norma escrita, tales documentos deben cumplir los requisitos del ordenamiento jurídico donde se hayan otorgado. // El documento otorgado por las partes ante un notario hace fe, no solo de la existencia de la convención o disposición para la cual ha sido otorgado, sino aun de los hechos o actos jurídicos anteriores que se relatan en él, en los términos simplemente enunciativos, con tal de que la enunciación se enlace directamente con la convención o disposición principal. // Las reproducciones de los documentos tendrán la eficacia probatoria de estos, si el funcionario autorizante certifica la razón de ser copias fieles de los originales. La misma eficacia tendrán las copias simples, cuya autenticidad no haya sido impugnada oportunamente” (artículo 45 incisos 2 y 3 del Código Procesal Civil, ley N˚ 9342 del 03 de febrero de 2016). En este sentido, una autoliquidación tributaria no es extendida por funcionario público dentro del marco de sus atribuciones, por el contrario, por más que se realice en un formulario suministrado por el Estado (físico o electrónico), es el propio contribuyente o los demás responsables quienes emiten su materialidad y contenido. Ni tampoco la ley, como supra se expuso, así lo califica. Sin dejar de mencionar que, por su obviedad, no son documentos otorgados en virtud de instrumentos internacionales o confeccionados ante notario público. Por ende, el empleo de datos falsos en una autoliquidación tributaria afectará al contendido de un documento privado y, como tal, dicha conducta se encuentra descrita tanto en el artículo 81 como en el 92 del C.N.P.T. como medios utilizados para lograr inducir a error a la Administración Tributaria en procura de obtener un beneficio en perjuicio de la hacienda pública. Esto cobra relevancia, conforme al cuadro fáctico que se acusó y tuvo por demostrado, y a los reclamos de la defensa técnica y material, sobre la existencia de un concurso aparente de normas entre los ilícitos tributarios y el ilícito de uso de documento falso descrito en el artículo 372 del Código Penal, por el cual resultó condenada [Nombre1] . El tribunal de juicio tuvo por demostrado, entre otros eventos más específicos, que: “5. En virtud de lo anterior, la acusada [Nombre1] , como representante y miembro de la Junta Directiva de las empresas antes descritas [Sociedad Anónima Edificio ADROFER, Consultoría ORS y Asociados Sociedad Anónima e Inversiones BEYOF Sociedad Anónima], ideó un plan delictivo para beneficiarse patrimonialmente a través de sus empresas mediante el pago inferior de tributos, lo cual logró al incluir datos falsos en declaraciones ante la Dirección General de Tributación del Ministerio de Hacienda. Para ello además usurpó la identidad de la ofendida [Nombre5] , para lo cual contó con la colaboración y participación activa de quien en vida se llamó [Nombre6] , quien fungió durante el período investigado como auxiliar de contabilidad, persona de confianza de la señora [Nombre1] . De ésta manera, en los periodos fiscales comprendidos entre el año 2009 y el año 2013, la acusada [Nombre1] , incluyó datos falsos en los formularios oficiales de la Dirección General de Tributación del Ministerio de Hacienda, de la Declaración Anual de Clientes, Proveedores y gastos Específicos (Formulario D 151) y de la Declaración Jurada del Impuesto Sobre la Renta (Formulario D 101) de las empresas Inversiones BEYOF S.A., Edificio ADROFER S.A. y Consultoría ORS y Asociados S.A. En dichos documentos la acusada señaló falsamente que la ofendida [Nombre5] brindaba servicios profesionales a las empresas señaladas, en virtud de lo cual se le pagaban honorarios que se clasificaban como gastos de las empresas y por lo tanto reducían la base imponible de los tributos que debían pagar. Del mismo modo, la acusada [Nombre1] , en los periodos fiscales sucesivos que van del año 2009 hasta el año 2013, incluyó datos falsos en los formularios oficiales de la Dirección General de Tributación del Ministerio de Hacienda, de la Declaración Anual de Clientes, Proveedores y gastos Específicos (Formulario D151) y de la Declaración Jurada del Impuesto Sobre la Renta (Formulario D101) de la ofendida [Nombre5] , señalando falsamente que dicha ofendida brindaba servicios profesionales a las empresas señaladas, en virtud de lo cual se le pagaban honorarios” (cfr. archivo de sentencia, páginas 105 y 106). Como se puede colegir, el empleo de datos falsos sobre los pagos por servicios profesionales realizados por las empresas que representaba la encartada (que incluyen la inserción de dicho hecho en las autoliquidaciones del impuesto sobre la renta propia, como la utilización de personas con la finalidad de ocultar su identidad como sujeto pasivo obligado del tributo), fue ejecutado por la encartada [Nombre1] como un medio para poder alcanzar el fin propuesto, cual era el lograr inducir a error a la Administración Tributaria y procurarse un beneficio patrimonial a partir de reducir la carga impositiva y el pago del tributo sobre la renta. Así lo comprendió el tribunal de instancia, al resolver: “Las acciones concurren materialmente, en total se insertaron datos falsos en treinta y dos documentos, lo que determina la falsedad de los mismos, de ello tuvo pleno conocimiento la encartada [Nombre1] , propiamente del contenido falso, pues correspondían a una maquinación artificiosa para deformar la realidad para así beneficiar a las empresas y perjudicar a la Hacienda Pública, es decir, se ejecutaron actos engañosos motivados por el ánimo de lucro injusto, con el cual se indujo a error a los órganos de supervisión tributaria y produjeron un perjuicio a la Hacienda Pública, porque finalmente, si bien no se ha realizado una determinación o fijación tributaria, lo cierto es que sí se declaró menos impuesto, lo cual surge como consecuencia lógica e ineludible, pues las acciones llevaron a una disminución en la renta bruta y la consecuente disminución de la carga tributaria. Esta afectación generada, es a su vez una consecuencia directa del error en que se indujo a la destinataria de las operaciones, sea la institución que por ley le compete el control, verificación y fiscalización de las obligaciones tributarias, al hacerle creer que se habían verificado pagos por servicios profesionales a la señora [Nombre5] ” (cfr. folio 131. El resaltado es suplido). No cabe duda para el órgano jurisdiccional que la encartada, en formularios auténticos, por ser los que suministró la Administración Tributaria (fuesen estos físicos o electrónicos), por sí o por interpósita persona, empleó contenido falso en declaraciones de autoliquidación. Al igual que calificó estos como “actos engañosos” por resultar una “maquinación artificiosa para deformar la realidad”, que “indujo a error a los órganos de supervisión tributaria”, que finalmente “produjeron un perjuicio a la Hacienda Pública” y logró beneficiar a las empresas de la sindicada. Esta, precisamente, es la conducta típica que se describe en el artículo 92 del Código de Normas y Procedimientos Tributarios (antes y después de la reforma realizada por el artículo 1° de la ley N° 9069 del 10 de setiembre del 2012, "Ley de Fortalecimiento de la Gestión Tributaria"), y a su vez, como se ha venido advirtiendo en este voto disidente, la descrita en el artículo 81 del mismo cuerpo legal. Por ello, era imprescindible la determinación del quantum económico defraudado, para poder establecer si se estaba ante una infracción tributaria o un delito tributario. Así lo recoció el propio órgano juzgador al señalar: “Ciertamente no se acusó el delito de "Fraude a la Hacienda Pública", previsto en el artículo 92 del Código de Normas y Procedimientos Tributarios, que es una Defraudación Tributaria, un tipo penal de naturaleza especial, lo cual se descartó en la investigación preparatoria a cargo del Ministerio Público, porque este tipo penal establece dentro de los elementos objetivos, que la cuantía de la cuota defraudada debe superar los quinientos salarios base. No obstante, lo indicada (sic) hasta acá deja en evidencia que, como acciones materiales, no es posible distinguir entre el uso de documento falso y el engaño encaminado a la obtención de un beneficio patrimonial, en este caso existe una sola acción desde el punto de vista natural o físico. A lo anterior se une no solo la necesidad de que el fallo se sustente correctamente para una mejor comprensión de los comportamientos realizados por la imputada, particularmente en un caso como el que aquí nos ocupa, en donde el uso del documento falso es precisamente el medio que utiliza el agente para perpetrar el engaño y la consecuente inducción en error al fisco” (cfr. documento de sentencia, páginas 131 a 132. El énfasis es propio). Del anterior extracto se pueden apreciar, como conclusiones a las que arribó el tribunal de instancia: i) Que se está ante un ilícito tributario por defraudación, que no llega a calificarse como delito porque no excede de quinientos salarios base y este es un elemento objetivo del tipo penal; ii) El uso del documento falsos (la mendacidad en el contenido de las autoliquidaciones) es el medio utilizado por el agente para perpetrar el engaño e inducción a error a la Administración Tributaria y; iii) Existe una sola acción, por cuanto es imposible distinguir entre la falsedad documental y el engaño efectuado para procurar el beneficio patrimonial. En cuanto a la primera de las afirmaciones, yerra el tribunal de instancia al considerar que el monto de la cuantía del fraude sea un elemento objetivo del tipo penal. Por el contrario, de la lectura del artículo 92 del C.N.P.T. (antes de la reformar efectuada en el año 2012) se podía comprender que la expresión: “Cuando la cuantía del monto defraudado exceda de doscientos salarios base, será sancionado con prisión de cinco a diez años quien induzca a error a la Administración Tributaria […]” hacía referencia a una condición objetiva de punibilidad, y no un elemento objetivo del tipo penal. Esto quedó más claro, cuando luego de la reforma de dicho numeral a través de la ley N° 9069, del 10 de setiembre del 2012, que incrementaba el monto de la cuantía de doscientos a quinientos salarios base, el legislador realizó una interpretación auténtica, al señalar que: “…Para los efectos de lo dispuesto en el párrafo anterior debe entenderse que: a) El monto de quinientos salarios base se considerará condición objetiva de punibilidad. […]”. De este modo, más haya de que se comparta, o no, que el quantum económico defraudado corresponde a una condición objetiva de punibilidad o es un elemento objetivo del tipo penal (el resultado), lo cierto es que la ley costarricense se decantó por la primera, y conforme a esta tesis se debe considerar como típica, antijurídica y culpable cualquier conducta defraudatoria a la hacienda pública, aunque no supere la cantidad mencionada de quinientos salarios base. Esto debido a que, aunque la relevancia penal de un comportamiento depende del desvalor de la conducta realizada, pueden existir consideraciones de política criminal que afectan a la conveniencia de castigar este tipo de conductas, como en este caso, cuando el resultado defraudatorio a la hacienda pública no supera un monto específico. Así se entiende que: “ La penalidad o punibilidad es, por tanto, una forma de recoger y elaborar una serie de elementos o presupuestos que el legislador, por razones utilitarias, diversas en cada caso y ajenas a los fines propios del Derecho penal, puede exigir para fundamentar o excluir la imposición de una pena y que sólo tienen en común que no pertenecen ni a la tipicidad, ni a la antijuricidad, ni a la culpabilidad, y su carácter contingente, es decir, sólo se exigen en algunos delitos concretos. […] Las condiciones objetivas de penalidad son circunstancias que, sin pertenecer al injusto o a la culpabilidad, condicionan en algún delito concreto la imposición de una pena. Al no pertenecer tampoco al tipo, no es necesario que se refiera a ellas el dolo del autor, siendo indiferente que sean o no conocidas por él” (Muñoz Conde y García Arán. Derecho Penal. Parte General. Edición 8˚. 2010. páginas 399 a 401). En síntesis, la tesis del a quo, sobre que en el sub judice no se configuró la tipicidad del fraude a la hacienda pública, descrito en el artículo 92 del C.N.P.T., ni el injusto penal, a partir de la ausencia de una defraudación mayor a los quinientos salarios base, quebrantó el principio de legalidad y la interpretación auténtica que el legislador le otorgó al quantum económico como una condición objetiva de punibilidad. Esto resulta trascendente, por cuanto este fue el criterio empleado (la atipicidad de la conducta de fraude a la hacienda pública) para demeritar la tesis de la defensa, que sostenía que la falta de acreditación de un perjuicio para el erario público mayor a quinientos salarios base, tornaba la conducta de la encartada -de emplear datos falsos en las declaraciones de autoliquidación- únicamente perseguible por un hecho ilícito tributario de carácter administrativo (artículo 81 del C.N.P.T.) y que las falsedades instrumentales quedaban subsumidas en el disvalor del resultado por especialidad. Esto bajo el criterio implícito en el fallo de que, la atipicidad del fraude a la hacienda pública dejaba subsistente las falsedades instrumentales utilizadas como medio, las cuales procedió a sancionar por lesionar un bien jurídico diferente (fe pública). Primero, como supra se expuso, tal decisión pasó por desconocer que la cuantía es una condición objetiva de punibilidad que no afectaba el injusto penal, ni tampoco la culpabilidad del autor, y; segundo, si bien tal criterio no resulta del todo incorrecto, por cuanto, en principio, las falsedades instrumentales concernientes a documentos públicos y auténticos, o de aquellos equiparados (366, 365 y 370 del Código Penal) podrían estar en tal condición, debido a que el artículo 92 C.N.P.T. no los excluiría conforme lo dispone el artículo 21 del Código Penal [En igual sentido, “Derecho Penal. Parte Especial (Zárate et al., 2018, pág. 527)]; en el caso concreto, la especie de los documentos que se acusó utilizó la sindicada era otro, ya que las declaraciones de autoliquidación tributaria son documentos privados, por lo que la mendacidad empleada en estas -en apariencia- a lo sumo podrían configurar un delito de uso de documento falso de naturaleza privada, sancionado por el artículo 368 y 372 del Código Penal, cuyo desvalor de acción es mucho menor al contendido cuando se falsifica o usa documentos públicos, auténticos o equiparados. La desaplicación de las normas sustantivas mencionadas, llevaron al a quo a descartar el uso del artículo 23 del Código Penal (concurso aparente de normas), a pesar de que, de forma acertada, había considerado la falsedad documental (concerniente al empleo de datos falsos en el contendido de las declaraciones de autoliquidación del tributo de la renta) como el medio utilizado para perpetrar el engaño e inducción a error a la Administración Tributaria. Incluso, reconoció que se estaba ante una sola acción. Claro está, se debe hacer la salvedad de que esta no era en sentido natural o físico como erradamente se mencionó en el fallo, sino en unidad jurídica, entre cada una de las falsedades como medio para lograr la defraudación al erario público y la inducción a error a la Administración Tributaria, que se consumó en cada uno de los períodos impositivos (2009, 2010, 2011, 2012 y 2013) con el perjuicio para la hacienda pública que ocasionó la sindicada. Esto por cuanto, no solo se acreditó el factor final -procurar el beneficio patrimonial en perjuicio del erario público-, sino también el factor normativo, toda vez que las falsedades documentales resultaron actos y acciones tendientes a engañar al órgano verificador tributario; se dieron en relación de medio a fin, por cuanto se logró causar con estos un resultado, que significó ser el perjuicio que se ocasionó al erario público, y los aspectos fenomenológicos (espacio y tiempo) mostraban cercanía, en tanto, como lo sostuvo el órgano jurisdiccional, una de las circunstancias que permitió acreditar la participación de la encartada en todos los hechos, fue que las declaraciones de autoliquidación con contenido falso (tanto de sus empresas como las de [Nombre28] ), en cada uno de los períodos fiscales, se presentaron con poco tiempo de diferencia, en las ventanillas autorizadas para ello por el órgano receptor o por medio de los sistemas electrónicos que la Administración Tributaria dispuso al efecto. De modo que, el uso del documento que contenía la información falsa (declaración de autoliquidaciones tributarias), fue consustancial con la acción defraudatoria en cada uno de los períodos impositivos, por cuanto este era el medio que dispuso el Estado para que el contribuyente o las personas responsables indicaran el hecho generador de la obligación tributaria y proporcionaran la información necesaria para la determinación del tributo que debían cumplir. Sin omitir que, es en estas declaraciones de autoliquidación donde el legislador estimó se podía presentar: “El empleo de datos falsos, incompletos o inexactos, de los cuales se derive un menor impuesto o un saldo menor por pagar o un mayor saldo a favor del contribuyente o responsable” (artículo 81.1.b.i del C.N.P.T.). Ello permite concluir, a su vez, que se está ante unidades de acción en cada uno de los períodos impositivos, entre la utilización de las autoliquidaciones tributarias que contenían información mendaz (uso de documento privado falso) y el acto propio de la defraudación a la hacienda pública. Aunado a que, en este tipo de ilícito (artículo 92 del C.N.P.T.) tales falsedades resultan ser actos acompañantes típicos (o copenados), cuyo castigo no tiene lugar de manera autónoma, a menos de que no se configure el mencionado delito (cuya gravedad es notoriamente mayor en relación a la pena a imponer 5 a 10 años de prisión, con relación al otro, 1 a 6 años). Esto por cuanto, como se ha venido advirtiendo en este voto disidente, existen muchas formar en que las conductas de fraude a la hacienda pública pueden desarrollarse, empero, la mendacidad en las declaraciones de autoliquidación tributaria es una de las típicamente descritas para hacerlo, como se sanciona en el artículo 81 tantas veces mencionado. De modo que, al disponer el artículo 368 del Código Penal que la falsificación de documento privado requiere, como un elemento esencial para su configuración, que “pueda resultar perjuicio”, y entendiendo que la falsedad de contenido (ideológica) en documento privado sí está sancionada en dicha norma (cfr. Resolución N˚ 2020-1196 de este Tribunal de Apelación de Sentencia, de las 15:30 horas del 22 de julio de 2020 -González González, [Dirección1] y [Dirección2] ), esto debe reconducir a que la potencialidad de perjuicio del empleo de datos falsos en las declaraciones de autoliquidación tributaria (que resulta ser los documentos falsos que se atribuye utilizó la encartada) están contenidos en el perjuicio que se causó al erario público. Es decir, en este supuesto fáctico concreto, en donde el autor se limita a faltar a la verdad en la narración de los hechos que actúan como presupuestos para determinar el hecho generador tributario y la carga impositiva que debe pagar (falsedad ideológica en documento privado), el desvalor de la conducta estaría abarcado en su integridad por el artículo 92 del C.N.P.T. (tipo penal de mayor complejidad por los bienes jurídicos protegidos) y operaría la regla de absorción prevista en el artículo 23 del Código Penal. De lo contrario, no resolver la concurrencia de ambos delitos con un concurso de leyes supondría una duplicidad o superposición tipológica a la hora de contemplar el perjuicio y en definitiva de doble sanción. Esto por cuanto, la lesión al bien jurídico tutelado en el delito de defraudación a la hacienda pública, no solo abarca el patrimonio, como se sostiene en el fallo de mayoría, sino que, al ser pluriofensivo, de forma indirecta también cubre la integridad del orden económico en sentido estricto, la cual deviene necesaria para una correcta planificación económica de la nación y para poder obtener las finalidades de política económica y social que un Estado social y democrático de Derecho está obligado a cumplir [En este sentido: [Nombre4] , . El delito Fiscal. 1982, pág. 210 a 211]. Asimismo, la Sala Constitucional afirma con relación a los delitos tributarios, que en estos: “En términos generales [se busca] la protección de la actividad financiera como sistema de recaudación y de la política fiscal para la aplicación de los recursos de acuerdo a los mejores criterios de justicia y equidad. En términos específicos, busca tutelar las funciones de "fiscalización y recaudación" de la administración tributaria con fines recaudatorios. Lo tutelado son las funciones de fiscalización y verificación, con la finalidad de proteger el sistema tributario como fuente fundamental de recursos para el desarrollo de la actividad financiera estatal y, al mismo tiempo, para asegurar un correcto funcionamiento de dicho sistema” (Resolución N˚ 2000-08191 de las 15:03 del 13 de setiembre de 2000). En igual sentido se ha indicado: "En cuanto a los delitos, el artículo 92 CNPT, al regular el delito de defraudación tributaria o de "inducción a error" establece como uno de sus elementos centrales el "perjuicio de la Hacienda Pública", de lo cual es fácil inferir que el bien jurídico tutelado es el patrimonio supraindividual representado por la Hacienda Pública. La supeditación del delito a un monto defraudado mínimo (200 salarios base) lleva también implícito que lo que se tutela es dicho patrimonio. Ahora, también en este delito, por la necesidad típica de un ardid cuya víctima sea la Administración Tributaria, podemos visualizar la tutela de un deber de veracidad para con ésta y, por tanto, de la función tributaria" ([Nombre7], . El delito de Defraudación Tributaria. En: Ensayos sobre Derechos Penal Económico y De Empresa. Editorial Jurídica Continental. 2013. pág. 562. El énfasis es suplido). En síntesis, también se protege como bien jurídico tutelado, tanto en el artículo 81 como en el 92 del Código de Normas y Procedimientos Tributarios, además del patrimonio, la tutela de la veracidad de la información que se suministra a la Administración Tributaria, para que esta ejerza el deber de fiscalización y recaudación de los tributos (Erario Público). Conforme a esto, y al principio de ofensividad, el desvalor de la falsedad cometida en la autoliquidación resulta comprendido en el delito de defraudación a la hacienda pública (criterio de consunción), de modo que la aplicación de este tipo penal desplaza a la del de falsedad de documentos privados (y a su correspondiente uso). En el caso concreto, esto tiene relevancia a partir de que el tribunal de instancia, aunque no pudo precisar su monto, sí tuvo demostrado la existencia de un perjuicio para la hacienda pública, que se trató de “varios millones de colones” (cfr. archivo de sentencia, página 218) que no superaron el quantum económico de los quinientos salarios base. De este modo, se tuvo por demostrados hechos que integran el injusto penal del delito del artículo 92 del Código de Normas y Procedimientos Tributarios, y se corroboró que la encartada [Nombre1] resultó culpable por estos. Empero, no podía aplicársele sanción, por cuanto se acreditó que la cuantía de la defraudación no superó los quinientos salarios base (condición objetiva de punibilidad). En este sentido, se acepta que en el concurso aparente de normas la ley penal desplazada no desaparece completamente, y puede tener efectos en ciertos casos, entre estos, cuando el delito primario no se castiga, como podría ocurrir cuando se presente una causa personal de exclusión de la punibilidad. Sin embargo, “[e]te principio tiene una excepción en el caso del hecho previo copenado” (cfr. [Nombre11] González, Francisco. Derecho Penal, Parte General, San José, Costa Rica, Tomo I, Editorial Jurídica Continental, 2008, p. 582). Nótese que, en el caso de la excusa legal absolutoria por reparación del incumplimiento tributario, que resulta ser otra condición de punibilidad, de aplicarse la tesis de que aún subsisten las falsedades en la declaración de autoliquidación del tributo, luego de que no se pueda sancionar el delito de fraude a la hacienda pública (tesis del voto de mayoría), debería procesarse al contribuyente por haberle mentido (falsedad de contenido) a la Administración Tributaria, cuando en realidad, desde una interpretación teleológica, lo que le interesa al Estado, por criterios de política criminal, es la regularización del sujeto pasivo y la recuperación del erario público, y no la aplicación de sanciones penales, al estimar que Derecho penal es la última ratio. Paralelo a esto, debe hacerse énfasis en que el criterio de consunción que se utiliza, también resulta ser una versión del principio de especialidad y, por ende, del principio de legalidad considerado conjuntamente con el principio de proporcionalidad. De ahí que, no resulta válido que se aplique la ley penal general (uso de documento falso descrito en el artículo 372 del Código Penal), cuando el artículo 89 del C.N.P.T. establece que “…Si en las leyes tributarias existen disposiciones especiales, estas prevalecen sobre las generales”. Es decir, prevalecía el delito de fraude a la hacienda pública sobre el delito de uso de documento falso privado, y si al primero no se le podía asignar pena porque se presentaba una condición objetiva de punibilidad, ello no significaba que el empleo de datos falsos en las declaraciones de autoliquidación tributaria asumieran nuevamente su autonomía, en tanto la conducta principal o en donde se consumió aquella, seguía siendo típica, antijurídica y culpable (delito) más no sujeta a pena por temas de política criminal. Sobre todo en estos casos, en donde la norma especial establece que, de no superarse la cuantía mencionada, lo procedente era proseguir con el procedimiento sancionador administrativo por el hecho ilícito tributario subsistente (infracción administrativa), y no recurrir a la ley general, se insiste, por haber disposición expresa sobre tal aspecto. Sin omitir, además, que con tal proceder tampoco se dejaría sin protección al bien jurídico tutelado (la veracidad en la información que se suministra a la Administración Tributaria), toda vez que, primero, debe tenerse presente que la no aplicación de una sanción penal, mediante la transformación de ilícitos penales en ilícitos administrativos, no supone, per se, una menor eficacia intimidatoria o aflictiva del sistema sancionador y, segundo, siempre se podría llegar a recuperar el patrimonio defraudado e imponer una consecuencia jurídica por el actuar ilícito. Corolario, tal y como se desprende de los motivos de impugnación de la defensa técnica y material, al advertirse que este supuesto excluyente de la punibilidad era evidente ab initio (la cuantía del monto defraudado a la hacienda pública), lo procedente era que se analizara con anterioridad para evitar llegar hasta la declaratoria formal de culpabilidad de la sindicada, que ahora impone a este juzgador el dictado en esta sede de la absolutoria de [Nombre1] , por cuanto, se insiste, su conducta no está sujeta a pena. De lo contrario, el sancionar las conductas de uso de documento privado falso (por emplear datos falsos en las declaraciones de autoliquidación) de forma autónoma y separada del fraude a la hacienda pública, infringiría la prohibición de non bis in ídem (artículo 42 de la Constitución Política, artículo 14.7 del Pacto Internacional de Derechos Civiles y Políticos, artículo 8.4 de la Convención Americana sobre Derechos Humanos y 66 del C.N.P.T.), en tanto podría sancionarse dichas falsedades tanto penal como administrativamente, como lo sugiere el voto de mayoría que, aunque respecto, contradice el principio de legalidad y la teoría del concurso de delitos. Esto no impide, conforme se dispone en este voto disidente, que la Administración Tributaria “…[continúe] el expediente sancionador con base en los hechos considerados por los tribunales como probados” (artículo 66 del C.N.P.T.), por cuanto en este caso, la sentencia absolutoria tiene los mismos efectos que una de sobreseimiento, por lo que se cumple con el supuesto que permite la reanudación del procedimiento administrativo sancionador (artículos 81 y 90 ibíd.) Sobre la deliberación escalonada. De conformidad con lo establecido en los artículos 361 y 465 del Código Procesal Penal, esta cámara de apelación debe deliberar para la decisión de los distintos aspectos planteados, arribando a una decisión, al menos, por mayoría. Así, implícitamente, se reconoce en nuestra legislación procesal lo que se conoce como la deliberación escalonada, en el sentido de que si un juez salva su voto con referencia a determinado tema, debe continuar interviniendo sobre los demás aspectos sometidos a su conocimiento, con la finalidad de que no se desintegre el tribunal. En este modelo de deliberación, la responsabilidad del juez disidente queda a salvo a partir de su voto de minoría y, con ello, también se garantiza su independencia judicial frente a la tesis de mayoría. También se verifica que, ante la necesidad de contar con la integración del tribunal para resolver los otros aspectos sometidos al plenario del órgano juzgador, el juez disidente participe en su determinación, para así dar contenido material a los principios de acceso a la justicia y tutela judicial efectiva (artículo 41 de la Constitución Política). Un procedimiento de deliberación diferente, sea, cuando el juez disidente se retire de la deliberación apenas emita su voto, ocasionaría que el resto de los temas sean conocidos únicamente por dos personas juzgadoras (en clara desintegración) y, como un riesgo, traería la posibilidad de que en alguno de los tópicos exista una contradicción que impida llegar a la mayoría de los votos y ocasionar la ineficacia de dicho proceso, con el concerniente quebranto a los principios citados. Este tipo de deliberación ha sido reconocida por este Tribunal de Apelación de Sentencia, otrora conocido como Tribunal de Casación Penal, en resoluciones N˚ 2009-0399 de las 09:45 horas del 17 de abril de 2009, N˚ 2010-0193 de las 11:15 horas del 24 de febrero de 2010 y N˚ 2010-0444 de las 15:40 horas del 13 de abril de 2010. Así, con sustento en los artículos 10 del Código Civil y 5 de la Ley Orgánica del Poder Judicial (que permiten interpretar las normas con base en los antecedentes legislativos y jurisprudenciales), este será el método que esta cámara de apelación aplique en este asunto. Consecuentemente, el voto de minoría que ahora se dicta, salva mi criterio con respecto al resto de los votos que emito en unanimidad con el resto del tribunal, cuando se conocen los restantes motivos de impugnación, por cuanto ya no puedo sostener en aquello el criterio aquí emitido, sin desintegrar el colegio de jueces y soslayar que este tema ya fue decidido por mayoría. Esta aclaración resulta válida, para evitar interpretaciones equivocadas que puedan considerar contradictorio que salvo el voto en este tema, empero, continúo votando con el resto del tribunal sobre otros tópicos que, evidentemente, tendrían otro resultado si se aplicara el voto de minoría (v.gr. La aplicación del artículo 130 C.N.P.T. con respecto a la rectificación de las declaraciones de autoliquidación tributaria como excusa legal absolutoria del delito de fraude a la hacienda pública, que no tiene cabida si se considera que el injusto penal acreditado es el uso de documento falso, como figura penal general, ya que definitivamente, en dicho contexto, no tendría relevancia alguna que el imputado regularice su situación ante la Administración Tributaria, más allá del reconocimiento de un arrepentimiento en su actuar).

XVI.- Nota del juez Araya Vega. En los reclamos trigésimo de los defensores y el primer motivo de su impugnación de la encartada [Nombre1] , se objeta la valoración probatoria realizada por el a-quo de la captación de llamada telefónica realizada por la agraviada a la justiciable. De forma colegiada se estimó que la grabación era ilícita y debía ser excluida, en tanto, lo relevante era la determinación del destinatario de la información y su consentimiento (cfr. en igual sentido, CSJ, S3, v. 2009-717). Ahora bien, en el caso concreto, si bien la comunicación captada fue ilícita –por ende debe ser excluida del acervo probatorio–, lo cierto del caso es que, basado en la teoría del riesgo, la conversación sostenida entre la acusada y la víctima, sí puede ser objeto de control valorativo, pero a través del relato de la ofendida no de la grabación. No se genera ninguna afectación al derecho fundamental intimidad con ello, en tanto, los reconocimientos efectuados por la encartada a la víctima si resultan ponderables a partir de su testimonio (eso sí, en el tanto el relato resultó creíble a partir de los parámetros racionales de ponderación del testimonio como lo son credibilidad subjetiva, verosimilitud, corroborabilidad externa y persistencia de la incriminación). Es decir, si bien la captación fue ilícita y genera su exclusión probatoria, a través del relato de la perjudicada sí es viable su ponderación, ya que la encartada [Nombre1] asumió el riesgo al comunicarse con la ofendida y confesarle el hecho ilícito y proponerle formas de corrección, a efecto que no trascendiera públicamente lo sucedido en virtud de su alto cargo como Defensora de los Habitantes en ejercicio. De ahí que lo concerniente al relato de la ofendida, respecto al contenido de dicha comunicación, sí resulta válido y constitucionalmente admisible.-

POR TANTO:

Se declaran parcialmente con lugar los recursos formulados por los defensores de [Nombre1] ; por ésta, en su carácter personal y por la Procuraduría General de la República. Se acogen el trigésimo cuarto y trigésimo quinto motivos del recurso interpuesto por la defensa de la imputada; el primero, el sexto y, parcialmente, el cuarto motivo promovidos por ésta en lo personal; asimismo, el único motivo del recurso del órgano que figuró como abogado del Estado. Consecuentemente: i) se dispone la ineficacia del registro realizado por [Nombre5] , de la conversación que sostuvo con la imputada [Nombre1] el tres de julio de dos mil catorce; ii) se anula la pena impuesta por todos los hechos condenados; iii) se anula la condenatoria con relación a las declaraciones D-101 números [Identificacion8] del año dos mil diez, de la empresa Inversiones Beyof Sociedad Anónima; [Identificacion10] del año dos mil once, de la empresa Edificio Adrofer Sociedad Anónima y [Identificacion11] del año dos mil once, de la empresa Consultoría ORS y Asociados Sociedad Anónima; iv) se anula la absolutoria por daño social. Se ordena el reenvío al tribunal de mérito para que, con nueva integración, se pronuncie conforme a derecho sobre los temas anulados. El juez González González salva el voto y declara con lugar el primer motivo del recurso de apelación de la defensa de la imputada y el tercero de la impugnación interpuesta por ésta en lo personal. El juez Araya Vega pone nota. NOTIFÍQUESE.- Giovanni Mena Artavia Rafael Mayid González González Alfredo Araya Vega Jueces de Apelación de Sentencia Penal Imputada: [Nombre1] Ofendido: La fe pública y otra Delito: Peculado y otros DDURANC