Double conformity in criminal appeals after two consecutive acquittalsDoble conformidad en apelación penal tras dos absolutorias consecutivas

Resolution: 2021-0983 Case File: 14-002617-0994-PE (7) CRIMINAL SENTENCING APPEALS COURT. Second Judicial Circuit of San José. Goicoechea, at eight hours and twenty minutes on the first of July of two thousand twenty-one.

APPEALS filed in the present case brought against [Name 001], [...]; for the crime of RAPE AND ANOTHER to the detriment of PERSONS OF LEGAL AGE.

The judges Rosaura Chinchilla Calderón; Patricia Vargas González and Kathya Jiménez Fernández participate in the decision on the appeals. Appearing before this court are the presbyter [Name 012] and his legal representative, attorney Vanessa Zúñiga Mora; attorney Fernando Arias Zúñiga, as public defender of the accused together with him; attorney Claudia Villafuerte Orellana and attorney Carlos Meléndez Lugo, representing the Public Prosecutor's Office, and attorneys Carol Madrigal González and Yahaira Sibaja Peña, in their capacity as lawyers from the Civil Defense Office for the Victim, and,

WHEREAS:

I.- That by judgment number 113-2021, at nine hours and thirty minutes on the eighteenth of February of two thousand twenty-one, the Criminal Trial Court of the Third Judicial Circuit of San José, southwest venue, Pavas, resolved: "THEREFORE:

In accordance with the foregoing, the rules of sound rational criticism, and Articles 39, 41 of the Political Constitution; 1, 22, 30, 31, 45, 50, 71, 76, 103, 106, 161, 162 of the Penal Code; 265, 334, 341, 346, 343, 349, 351, 356, 358, 363, 364, 365, 366, 367 to 375 of the Code of Criminal Procedure. 1045 and 1048 of the Civil Code and the Current Rules on criminal liability of the 1941 Penal Code, this Court UNANIMOUSLY declares [Name 001], responsible as the perpetrator of ONE CRIME OF SEXUAL ABUSE AGAINST A PERSON OF LEGAL AGE TO THE DETRIMENT OF [Name 003] and TWO CRIMES OF SEXUAL ABUSE AGAINST A MINOR, TO THE DETRIMENT OF [Name 005], sentencing him to the penalty of TWO YEARS OF IMPRISONMENT FOR THE FIRST, THREE YEARS OF IMPRISONMENT FOR THE SECOND AND THREE YEARS OF IMPRISONMENT FOR THE THIRD PROVEN CRIME, which are materially concurrent with each other, so the TOTAL PENALTY IMPOSED FOR THE THREE PROVEN CRIMES IS EIGHT YEARS OF IMPRISONMENT.

Likewise, [Name 001] is acquitted of all penalty and responsibility for a crime of Rape that was attributed to him to the detriment of [Name 005]. The penalty imposed shall be served in the place and manner determined by penitentiary regulations, after crediting any preventive detention that the now-sentenced individual may have suffered for this matter. By majority vote, this Court, in order to guarantee compliance with the sanction imposed, imposes on [Name 001] the precautionary measures of: 1) Maintaining a fixed domicile where he can be located. 2) Signing in every fifteen days at the location where the case file is held. 3) A prohibition on leaving the country is ordered. 4) [Name 001] is ordered to surrender his passport to this Court within 24 hours. The measures imposed are ordered until the process concludes. Co-judge Mata Sánchez issues a dissenting Vote and imposes preventive detention for six months against [Name 001] pursuant to numeral 258 of the Code of Criminal Procedure. The criminal process is resolved, with no special ruling on costs. Regarding the Civil Claim for Damages (Acción Civil Resarcitoria): The Civil Claim for Damages is granted, directly condemning [Name 001] and Temporalidades de la Arquidiócesis de San José jointly and severally, to pay the moral damages caused to the Civil Plaintiff [Name 005], which amount is set at five million colones. The civil defendants [Name 001] and Temporalidades de la Arquidiócesis de San José are condemned to pay the costs generated by the filing of the Civil Claim for Damages, which are set at one million colones. The sums granted herein shall be paid within 15 days from the finality of this ruling; otherwise, legal interest will accrue on the total amount granted according to the interest rate for six-month certificates of deposit of the Banco de Costa Rica. Once this judgment is final, register it in the Judicial Registry and issue certified copies of the relevant parts to the Instituto Nacional de Criminología and the Sentence Enforcement Court, issuing the corresponding official letters, orders, and standard testimonials. The full reading of the judgment is scheduled for February 25, 2021, after sixteen hours." (sic, folios 748 and 749). Cinthya Elena Ramírez Angulo; Siany Mata Sánchez Mauricio Jiménez Vargas. Trial judges.

II.- That, against the preceding ruling, the presbyter [Name 012] as legal representative of Temporalidades de la Arquidiócesis de San José; attorney Fernando Arias Zúñiga, as public defender of the accused; and attorney Claudia Villafuerte Orellana, representing the Public Prosecutor's Office, filed appeals.

III.- That, having verified the respective deliberation in accordance with the provisions of Article 465 of the Code of Criminal Procedure, the court considered the issues raised in the appeals.

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

Judge Chinchilla Calderón drafts the opinion; and,

WHEREAS:

I.- Admissibility. Attorney Fernando Arias Zúñiga, as public defender of the accused; the presbyter [Name 012] as legal representative of Temporalidades de la Arquidiócesis de San José, the third-party civil defendant; and attorney Claudia Villafuerte Orellana, representing the Public Prosecutor's Office, filed appeals against the judgment issued in the case. Given that these were filed through reasoned briefs submitted to the trial court body and within the legal deadline (as they were delivered, respectively, on March 17, 16, and 15, 2021, according to folios 763, 751, 795 of volume II, and since the judgment was delivered in full on February 25, 2021, according to folio 750, the 15-business-day deadline did not expire until March 18, 2021), they must be admitted, without further formalities being necessary, as otherwise, the mandate established in Article 8.2.h of the American Convention on Human Rights and what was resolved by the Inter-American Court of Human Rights in the case of Mauricio Herrera Ulloa vs. Costa Rica, judgment of July 2, 2014, would be breached. (B) By judgment number 1925-2019, at 11:15 a.m. on October 28, 2019, the Criminal Tax Court of the Second Judicial Circuit of San José resolved: "THEREFORE: The appeal filed by attorney Claudia Villafuerte Orellana, representative of the Public Prosecutor's Office, is granted. The appealed judgment and the trial that preceded it are annulled, and a remanded trial is ordered before a new panel of the trial court body. By virtue of the foregoing, a ruling on the challenge presented by the lawyer from the Civil Defense Office for the Victim is omitted, as it is deemed unnecessary. NOTIFY. Gustavo Adolfo Rojas Gutiérrez. Gustavo Gillen Bermúdez Raúl Madrigal Lizano. Criminal Sentencing Appeals Judges." As a result of this remand, the mixed decision (conviction for abuses and acquittal for rape) that is now being challenged was issued, specifically, in the case of the prosecution's representation, regarding the acquittal for the crime of rape. As can be verified, the now-appealed decision is the second consecutive acquittal judgment existing in this matter on the issue of rape. In view of this, the defense attorney has requested, in the hearing held, that its inadmissibility be declared, applying the rules of double conformity. To determine if this challenge is formally acceptable, an additional analysis must be made because other legal provisions are involved, as this court has already stated, both with a panel partially different from the current one —R. Chinchilla, A. Solís and A. Araya: decision number 2018-1210 of December 7, 2018— and with the current panel, through decision number 2021-536 at 08:40 on April 13, 2021. On those occasions, it was recapitulated that, through Law No. 8503 on Apertura de la casación penal, in force since its publication in La Gaceta No. 108 of June 6, 2006, Article 451 bis was added to the Code of Criminal Procedure. This numeral became Article 466 bis due to the inclusion of a series of articles through Law No. 8720 or Ley de protección a víctimas, testigos y demás sujetos intervinientes en el proceso penal. This article had the following text: "Article 466 bis.- Remand trial. The remanded trial must be held by the same court that issued the judgment, but composed of different judges. The Public Prosecutor's Office, the private prosecutor, and the civil plaintiff may not file an appeal in cassation against the judgment produced in the remanded trial that reiterates the acquittal of the accused ordered in the first trial, but they may do so regarding the civil action, restitution, and costs. The appeal in cassation filed against the judgment of the remanded trial must be heard by the respective Court of Cassation, composed of judges different from those who ruled on the previous occasion. If it is not possible to compose it with new judges, because the impediment covers both regular and substitute judges, or there is not a sufficient number of substitutes, the competence shall be assumed by the regular judges who are necessary, notwithstanding the cause and without disciplinary liability regarding them." According to this rule, among other things, an appeal in cassation—the only way to challenge a criminal judgment at that time—was not admissible against a judgment that, for the second time, acquitted the accused. Numeral 466 bis of the Code of Criminal Procedure incorporated the principle of double conformity or single prosecution, whose purpose is to limit the punitive power of the State, so that individuals are not subjected to endless criminal proceedings, going through trials over and over again until the expected conviction is achieved. Through this, any person subjected to criminal proceedings was guaranteed that, if after a second trial, they were acquitted again, they would not have to face a new trial, since this second acquittal judgment cannot be appealed. Said provision was repealed by Article 10 of the Ley de Creación del Recurso de Apelación de la Sentencia, otras Reformas al Régimen de impugnación e implementación de nuevas reglas de oralidad en el proceso penal, No. 8837 of May 3, 2010. However, it was reinstated by the Sala Constitucional upon granting the constitutional challenge (acción de inconstitucionalidad) No. 12-007781-0007-CO through decision No. 2014-13820 of August 20, 2014, at 4:00 p.m. (binding erga omnes according to Article 13 of the Ley de la Jurisdicción Constitucional) stating: "The Public Prosecutor's Office, the private prosecutor, and the civil plaintiff may not file an appeal in cassation against the judgment produced in the remanded trial that reiterates the acquittal of the accused ordered in the first trial, but they may do so regarding the civil action, restitution, and costs." There, it was expressly recognized that this institution is an instrument that limits the punitive power of the State and guarantees the accused's right to be judged within a reasonable time, safeguarding not only the right to prompt and complete justice but also the principle of progressivity. While it is true that this rule originally operated for purposes of the appeal in cassation, in the opinion of this chamber, the context under which it was issued in 2006 must be understood, since, at that time, the appeal in cassation was the only means to challenge criminal judgments. With the creation of the appeal remedy (recurso de apelación) in criminal matters, this is precisely the ordinary way to challenge the criminal judgment; therefore, although reference is made there to the appeal in cassation, in the current context of criminal procedural law, it must be understood that its concrete application relates to the appeal remedy (recurso de apelación). Despite this, subsequently, the Sala Constitucional, by majority, through a clarification sought on its own motion via judgment No. 2014-17411, modified the content of that judgment number 2014-013820, thus practically revoking its own pronouncement (without saying so and without that being procedurally proper via the addendum route, according to the first paragraph of numeral 147 of the Code of Criminal Procedure: "provided that such acts do not entail a modification of what was resolved") and limited the validity of this institution solely to the appeal in cassation, making the application of that rule, which remains in effect by order of the same Court, impossible. After that, several judicial consultations on constitutionality were formulated, both by this chamber with a panel partially similar to the current one (decision number 02-2016: R. Chinchilla, J. Campos and L. García) and by other criminal sentencing appeals courts of the country (in adult and minor jurisdictions), occasions on which it was stated, in summary, that this change in constitutional criterion via an addendum, leaving the initial decision intact:

• a)injured the principle of legal certainty, as well as the fundamental right of every human being to be judged within a reasonable time and to limit the punitive claim of the State to reasonable means and deadlines; b) did not adapt to the current regime of challenges, as it is not possible to directly challenge a judgment from the trial court that acquits the accused for the second time via the appeal in cassation. Trial judgments are challenged through the appeal remedy, and there is no appeal in cassation per saltum in any scenario. The Sala Constitucional did not consider that, with Law 8503 of June 6, 2006, the challenge regime was different, and only the appeal in cassation was available against trial court judgments. By changing this, to be consistent with what it had already resolved regarding the institution of double conformity, it should have indicated that said institution must be interpreted as meaning that no appeal could be filed against the trial court's judgment that has reiterated the acquittal of the accused; c) it disregarded the principle of progressivity, which prevents the dismissal from a legal system of already-granted rights that expand the scope of guarantees in protection of the fundamental rights enshrined in the Political Constitution or in human rights conventions, all of which had also been recognized in majority judgment No. 2014-013820 of the Sala Constitucional. However, these consultations were mostly declared inadmissible by the constitutional body (see decisions numbers 2015-9884, 2015-9886, 2015-9965, 2016-1210, 2016-2380, 2016-3477, 2016-4919, and 2017-16725) and some were stayed pending other decisions (see decisions numbers 2016-9452 and 2016-9453). Concomitantly, an constitutional challenge was filed, which was resolved through judgment number 16967-16 at 10:42 a.m. on November 16, 2016, where, by majority, it was denied and it was stated: "This Court has already ruled, through resolutions 2014-013820 and 2014-017411, to the effect that the restitution of Article 466 bis of the Code of Criminal Procedure refers only to the appeal in cassation, and what is provided therein cannot be extended to the appeal remedy." Finally, through decision number 2018-007208 of May 9, 2018, it reaffirmed: "The consultation is addressed in the sense that the restitution of Article 466 bis of the Code of Criminal Procedure refers only to the appeal in cassation, and what is provided therein cannot be extended to the appeal remedy. Magistrates Castillo Víquez and Rueda Leal give additional reasons. Magistrate Hernández López and Magistrate Hernández Gutiérrez issue a dissenting vote and decide to address the consultation by stating that Article 466 bis of the Code of Criminal Procedure is not unconstitutional as long as it is understood that the only interpretation consistent with constitutional law is to consider that no remedy can be filed against the second criminal acquittal judgment regarding what was resolved on criminal liability." (The emphasis is added).

Although this chamber unanimously considers that the last majority decision of the Sala Constitucional does not conform to law (because it disregarded the principle of progressivity of human rights by making the situation more burdensome for the person twice acquitted at the trial stage, and because it affected the principle of legal certainty derived from the change in the challenge system and from the fact that a substantive decision cannot be modified via a clarification), it is clear that we cannot depart from it, insofar as it has been expressly and clearly reiterated by that majority of the constitutional magistrates and there is no higher-ranking parameter (such as a human rights treaty or a decision by an international court that expressly regulates the matter) to which reference can be made. For this reason, in accordance with the provisions of Article 13 of the Ley de la Jurisdicción Constitucional, said precedent must be applied and the respective admissibility must be granted to the appeal, despite the fact that there are two legislative bills in the Legislative Assembly (legislative file numbers 19906 and 19908) that seek to reform the aforementioned institution to give it the scope it originally had, thereby complying with what was indicated in the constitutional decisions regarding the legislative reservation. However, none of this halts the processing of this matter, without prejudice to the fact that, depending on what is resolved henceforth and the outcome of those initiatives, the retroactive application of the law may be invoked, which, according to what was indicated by the Inter-American Court on Human Rights, should not be limited solely to substantive law, as indicated in the cases Vélez Loor vs. Panamá of 2010 and Ricardo Canese vs. Paraguay of 2004. In the latter, it stated: "178. For its part, the principle of the retroactivity of the more favorable criminal law is contemplated in Article 9 in fine of the Convention (...) This rule must be interpreted in good faith, according to the ordinary meaning to be given to the terms of the treaty in their context and in light of the object and purpose of the American Convention, which is the effective protection of the human person, as well as through an evolutive interpretation of international human rights protection instruments. 179. In this sense, the more favorable criminal law should be interpreted as applying both to that which establishes a lesser penalty for crimes and to that which encompasses laws that decriminalize conduct previously considered a crime, create a new cause of justification, of exculpation, and of impediment to the operation of a penalty, among others. The aforementioned cases do not constitute an exhaustive list of the cases that merit the application of the principle of retroactivity of the more favorable criminal law. It should be noted that the principle of retroactivity applies regarding laws that were enacted before the issuance of the judgment, as well as during its execution, since the Convention does not establish a limit in this regard. 180. In accordance with Article 29(b) of the Convention, if any law of the State Party or other international treaty to which said State is a Party grants greater protection or regulates more broadly the enjoyment and exercise of any right or freedom, the State must apply the most favorable norm for the protection of human rights (...)" (the bold emphasis belongs to the original). However, none of this is within the purview of this chamber. Nor is it ignored that the Sala Tercera, through decision number 2019-62 of January 18, 2019, and with a then entirely interim panel (J. Robleto, S. Zúñiga, R. Segura, G. Alfaro and R. López), declared an appeal in cassation without merit under such conditions. Due to the importance of the arguments, despite the length of the citation, it is appropriate to transcribe the most relevant part: «...the request raised by the representative of the Public Prosecutor's Office before the Court of Cassation must be declared without merit. To reach this conclusion, it is necessary to consider: 1) the historical background of the double conformity and the purpose of the norm; 2) the scope of the double conformity as dimensioned by the resolutions of the Sala Constitucional; 3) the scope of the double conformity in the specific case. Regarding the historical background, it is necessary to consider that the double conformity was initially provided for in Article 451 bis of the Code of Criminal Procedure, when only an appeal in cassation existed against the first-instance judgment issued by the criminal courts. Subsequently, the numbering of the double conformity was moved to numeral 466 bis of the procedural code; then, the guarantee was repealed, and finally, it was reinstated in the legal system through a constitutional challenge resolved by the Sala Constitucional. In this sense, it is necessary to contextualize that, as a result of the judgment of the Inter-American Court of Human Rights (hereinafter I/A Court H.R.) in the case known as Herrera Ulloa vs. Costa Rica, issued on July 2, 2004, the State was compelled to modify the challenge regime in such a way that access to an informal, accessible, ordinary, and effective remedy would be guaranteed (ARROYO GUTIÉRREZ, José Manuel. La reforma al régimen de impugnación de la sentencia penal en Costa Rica. El recurso contra la sentencia penal en Costa Rica. Asociación de Ciencias Penales- Editorial Jurídica Continental, San José, C.R., 2013, p. 27). As usually happens with judgments of the international body, the I/A Court H.R. followed up on compliance with what was ordered in the Herrera Ulloa vs. Costa Rica case and, through various resolutions, assessed the procedure for readapting the Costa Rican legal system, which deserves special attention, given that the State had to carry out two legal reforms regarding the means of challenge in criminal proceedings to guarantee the rights provided for in Article 8.2 h of the American Convention on Human Rights (ACHR), a reform procedure through which the double conformity was incorporated and repealed. Among these compliance resolutions is that of September 12, 2005, which ordered that the procedure for supervising compliance with the pending points of implementation remain open, including for these purposes, the adaptation of the domestic legal system in accordance with Article 8.2 h of the American Convention on Human Rights. Subsequently, the first legal reform intended to comply with the provisions of the I/A Court H.R. was Law No. 8503 called Ley de Apertura de la Casación Penal, published in the Official Gazette La Gaceta 108, of June 6, 2006, which modified the appellate regime of the criminal process, with the purpose of: "de-formalizing and granting greater breadth and flexibility to the appeal in cassation, which in our criminal legal system constituted the legal mechanism for challenging the criminal judgment, so that it constituted a procedural instrument that materialized the right to appeal the ruling before a higher court, according to the parameters that the Inter-American Court of Human Rights stipulated in the Herrera Ulloa case" (VARGAS ROJAS, Omar; JIMÉNEZ GONZÁLEZ, Edwin Esteban. Impugnación de la sentencia penal: apelación, casación y revisión. Instituto de Investigaciones Jurídicas, San José, C.R., 2012, p. 73). Precisely, it is through this legal reform that the guarantee of double conformity is included in our positive legal system, by adding Article 451 bis to the Code of Criminal Procedure, which provided, with respect to what matters: "The remanded trial must be held by the same court that issued the judgment, but composed of different judges. The Public Prosecutor's Office, the private prosecutor, and the civil plaintiff may not file an appeal in cassation against the judgment produced in the remanded trial that reiterates the acquittal of the accused ordered in the first trial, but they may do so regarding the civil action, restitution, and costs. The appeal in cassation filed against the judgment of the remanded trial must be heard by the respective Court of Cassation, composed of judges different from those who ruled on the previous occasion. If it is not possible to compose it with new judges, because the impediment covers both regular and substitute judges, or there is not a sufficient number of substitutes, the competence shall be assumed by the regular judges who are necessary, notwithstanding the cause and without disciplinary liability regarding them" (...) This reform included in the criminal procedural norms a limit to the punitive claim exercised either publicly or privately, establishing that against two acquittal judgments issued at trial, no appeal in cassation could be filed, thus preventing regressions ad infinitum, that is, nullifying the possibility of ordering remands to trial indefinitely and without any limit, which emerges with crystal clarity from the historical data related to the process of approving the law. It should be remembered that the Ley de Apertura de la Casación, and consequently the inclusion of the double conformity in the Costa Rican legal system, had as its antecedent a proposal for legal reform from the Judicial Branch that was discussed in the Corte Plena and subsequently sent to the Legislative Assembly, where through the previously established process, the bill became a law of the Republic. It is precisely within the body of the Judicial Branch where the double conformity was discussed extensively, expressly indicating that the purpose of the norm is precisely to prevent the case from being remanded indefinitely. On that occasion, Magistrate González Álvarez stated that: "with this, what in doctrine is called double conformity is being closed, which at this moment is open and could occur, and indeed cases of spiral have already effectively occurred, that is, a trial is held for the accused and he is acquitted, the Public Prosecutor's Office appeals and the Court annuls the judgment, orders a remand and in the remanded trial he is acquitted, the Public Prosecutor's Office appeals, the Court annuls the judgment and sends it back again and they acquit him again, that is, a spiral issue, and we are closing the possibility that the accusing party cannot file an appeal against the second acquittal in the remanded trial, so that the only thing they can appeal would be regarding the civil action, restitution, and costs, closing it as has been the recommendation, even arising from the postulates of the judgment of the Sala Constitucional relating to closing the appeal by the Public Prosecutor's Office, which is already quite closed in itself. Let us remember the thesis that at least the possibility is being given that they can appeal once against an acquittal, which is already quite closed following the pronouncements of the Sala Constitucional" (Article XIII of Minutes No. 38-2004, of the extraordinary session of the Corte Plena, held at 1:30 p.m., on December 13, 2004, the underlining does not belong to the original). In the same vein, in response to a query from Magistrate Villanueva, the then Magistrate Arroyo Gutiérrez indicated in the same session that: "we must put ourselves in the shoes of the person who is acquitted once and acquitted a second time and the system keeps telling him: no, you have to go to trial a third or fourth time; that really goes against every principle of security and against the fundamental rights of individuals. In pure accusatory systems, let's say, Anglo-Saxon ones, the possibility that the State has to accuse a person is unique. Exceptionally, as you know, a review of a case is possible, but here we have the State against a citizen whom it is supposed to accuse when it has grounds to do so, taking him to trial and exposing him before the community as a potential criminal offender, and there is a jury and a judge who say: you are innocent, you are guilty, just once." We are giving the State two opportunities here, but you will understand that taking a person to trial more than twice is truly a matter of fundamental human rights and fundamental legal certainty, which is why it seems to me that the bill on this point also salvages a reasonable minimum of action by the State against a criminally prosecuted person” (emphasis not in the original), a position that was seconded by the then President of the Supreme Court of Justice Luis Paulino Mora Mora, who added: "That is a thesis of an interpretation that some authors have given to Article 8.2.H of the American Convention on Human Rights, pointing out that it is a right of the accused, but it is not a right of the prosecution to have the possibility of a second review, which is why according to that thesis in its most restrictive sense the Public Prosecutor’s Office in the accusation only has one chance, if it does not achieve a conviction in the judgment it has no possibility of further discussion. We have recognized here the possibility for the Public Prosecutor’s Office to file the appeal once, and what is being done in this case is restricting that for the reenvío it no longer has that possibility" (emphasis not in the original). As recorded in the minutes cited supra, as part of the same discussion and in a new intervention, former Magistrate Arroyo Gutiérrez highlighted the value of legal certainty by replying: "Regarding this, 8.2.h, what it guarantees is the appeal in favor of the convicted person, it does not exclude the possibility of an appeal by the accusing party, it does not mention it. What 8.2.h does is guarantee the convicted person, and in that context, we should also not lose sight of what the American Convention does, because that is what is directly related to what they have sent us, so that, if I understood correctly, Magistrate González Camacho, effectively, when the possibility of the accusing entity of the Public Prosecutor’s Office of reiterating its accusation several times is limited, it is limited because it is not being eliminated, it is limited to two, obviously what is being done is trying to weigh legal certainty, fundamental rights within the framework of a rule of law and so that the citizen knows at some point that the matter has concluded, because it could be perpetual." Moreover, the Constitutional Chamber had already ruled on the double conformity as a guarantee of legal certainty, establishing that: “The prohibition is based on legal certainty in the exercise of the ius puniendi of the State, which cannot be maintained indefinitely until a conviction is handed down” (vote 2009-007605 of the Constitutional Chamber, at 14:43 hours, on May 12, 2009, emphasis not in the original). Despite the aforementioned reform aimed at complying with the provisions of the judgment in the case of Herrera Ulloa vs. Costa Rica, in the resolution of the I/A Court H.R. of September 22, 2006, related to the supervision of compliance with the judgment, it was decided to keep the compliance supervision process open in relation to the adaptation of the domestic legal order, pursuant to Article 8.2 h of the American Convention on Human Rights; however, it must be considered that the report submitted by the State to the I/A Court H.R. that served as the basis for keeping the process open was sent on January 30, 2006, that is, approximately 6 months before the approval of the Law Opening the Cassation Appeal, so at that time, compliance with the judgment could not be evaluated considering said reform. Subsequently, as recorded in the resolution of the Presidency of the I/A Court H.R. of June 2, 2009, issued on the occasion of the supervision of compliance with the judgment of the I/A Court H.R. cited supra, the Inter-American Commission on Human Rights (hereinafter IACHR) brought to the attention of the I/A Court H.R. the insufficiency of the Law Opening the Cassation Appeal to comply with the provisions of the CADH, stating: «That the Inter-American Commission analyzed the so-called Ley de Apertura and considered that it “broadens to a certain extent the criminal cassation appeal in order to adapt the cassation appeal to Article 8.2.h of the Convention through three fundamental changes i) the relaxation of the admissibility of the cassation appeal; ii) the granting of additional powers to the authorities that must decide on the appeal to review in toto the actions of the trial court; and iii) the relaxation regarding the admission of evidence. The Commission took note of “these important reforms promoted by the State […]; at the same time it considered that their effectiveness and the consequent compliance with what was ordered by the Court in its judgment of July 2, 2004, must be evaluated based on the application of the new model to concrete cases.” 19. That, in relation to the statistical information provided by the State, the Inter-American Commission considered that it has not been demonstrated that the State's procedural system has been redesigned in order to provide greater judicial guarantees to citizens. Finally, it requested the Court to “declare that the State adopted legislation aimed at adapting the Costa Rican legal order to the provisions of Article 8.2.h of the American Convention, in relation to Article 2 thereof, whose application and consequent evaluation of effective compliance is still pending, so the supervision procedure must be kept open regarding this point» (emphasis not in the original), which made it necessary to convene a private hearing to verify said observations of the IACHR. Subsequently, as recorded in the resolution of the I/A Court H.R. of July 9, 2009, related to the compliance supervision process, the representatives of the State of Costa Rica pointed out that Bill No. 17.1443 called “Ley de Creación del recurso de apelación de la sentencia, otras reformas al régimen de impugnación e implementación de nuevas reglas de oralidad en el proceso penal” was in process, a reform that the State reported meant the culmination of: “an arduous process of partial reforms dating back to the eighties of the last century, all aimed at ensuring compliance by the internal procedural order [of Costa Rica] with the obligations arising from the American Convention, especially Article 8.2.h, in relation to Article 2 thereof” (emphasis not in the original). However, in the absence of approval of the bill, the I/A Court H.R. kept the compliance supervision procedure open. Finally, through Law No. 8837 called Ley de Creación del Recurso de Apelación de la Sentencia, otras Reformas al Régimen de Impugnación e Implementación de Nuevas Reglas de Oralidad en el Proceso Penal, published in the Official Gazette La Gaceta 111, of June 9, 2010, compliance was given to what was ordered in the case Herrera Ulloa vs. Costa Rica, as can be inferred from the resolution of the I/A Court H.R. of November 22, 2010, related to the compliance supervision procedure. On that occasion, the I/A Court H.R. reasoned that the State: “considered that the reforms introduced by the Ley de Apertura needed to be strengthened and, motu proprio, initiated a new process of legal reform, which concluded with the sanction of Law No. 8.837. Through said law, in addition to maintaining the cassation appeal, the appeal of criminal judgment was created which, inter alia: a) allows the judgment to be reviewed by a higher court; b) consists of a simple appeal, without major formalities, which avoids requirements or restrictions that infringe upon the essence of the right to appeal, and c) makes possible the comprehensive examination of all the issues debated and analyzed by the trial court. 16. The Inter-American Court concludes that, by guaranteeing the possibility of a broad review of the judgment issued by a criminal trial court at the domestic level, Costa Rica has fully complied with the fifth operative paragraph of the Judgment and, with this, the present case is concluded. The future application of the appeal of judgment is not a matter of the supervision of compliance in the Herrera Ulloa case.” Despite the foregoing, by means of Article 10 of Law No. 8837, the double conformity provided at that time in Article 466 bis of the Code of Criminal Procedure (former 451 bis of the Code of Criminal Procedure, but whose location in the procedural regulations was changed as a result of Law No. 8720 of March 4, 2009, called Ley de Protección a Víctimas, testigos y demás intervinientes en el proceso penal, reformas y adición al Código Procesal Penal y Código Penal) was repealed. On the other hand, in relation to the process of reinstating the double conformity, by means of a filing dated June 13, 2012, an acción de inconstitucionalidad was brought against the elimination of the guarantee cited supra, a proceeding that was declared with merit through vote of the Constitutional Chamber 2014-013820 at 16:00 hours, on August 20, 2014, ordering that: “The unlimited power to challenge the acquittal may also indirectly violate the principle of prompt and complete justice; unlimited challenge may legitimize, in some cases, a process of indeterminate duration, despite repeated acquittals. The repressive power is an act of such relevance over fundamental rights, especially liberty, good name, and privacy, that it is required, in any event, that the possibility of bringing an acquitted citizen to trial multiple times have an insurmountable limit, the definition of which, of course, corresponds to the ordinary legislator, which in this case refers to the reiteration of a cassation appeal when an acquittal has been handed down. This is how the repealed provision defined it, imposing a limit that is constitutionally reasonable and proportional.” From a reading of the entirety of the Constitutional Chamber’s ruling, the following corollaries can be extracted: a) based on the principle of legal certainty, the need to limit the ius puniendi can be inferred; b) it is not possible to maintain an authorization to challenge, without limit, the acquittal handed down in a criminal case; c) the State cannot act as a persecutor ad infinitum; d) the guarantee of appeal provided in Article 8.2 h of the American Convention on Human Rights belongs exclusively to the accused; e) the second acquittal is unchallengeable in cassation; f) the unlimited power to challenge may violate the principle of prompt and complete justice, legitimizing, in some cases, processes of indeterminate duration; g) the ne bis in idem principle imposes a restriction on the possibility of prosecuting a citizen, in this case, through a limit on the challenge, although the aforementioned principle (the Chamber indicates) is not fully applicable in the double conformity. Subsequently, the Constitutional Chamber, acting ex officio, by means of resolution 2014-17411 at 16:31 hours, on October 22, 2014, added to the resolution cited supra by using a literal grammatical interpretation of Article 466 bis of the Code of Criminal Procedure, indicating that: “since the reinstated provision refers only to the cassation appeal, what is provided therein cannot be extended to the appeal. According to the literal meaning of the provision being revived, the limitation was provided only for cassation, and not for the appeal, since the appeal was incorporated only in 2011 and the provision that revives this limitation to cassation dates from 2006. Therefore, the provision revives the limitation only for the extraordinary cassation appeal, because the provision was originally provided only for this, since the appeal did not exist at that time” (emphasis not in the original). The constitutionality of the scope of the double conformity was challenged through a new acción de inconstitucionalidad brought by the Public Defense, given the existence of a criminal case where two acquittals were handed down and the accused was awaiting a third trial as a result of the reenvío ordered in that case by the Court of Appeal of Criminal Judgment of the Second Judicial Circuit of San José, so in the petitioners' opinion, limiting the double conformity to cassation without including the appeal prevents the full application of the institute. However, the Constitutional Chamber denied the extensive application of the double conformity to the appeal of criminal judgment and reiterated that the limitation on the exercise of ius puniendi through the double conformity applies only in relation to the cassation appeal, establishing that the limitation of the appeal after two acquittals must be established by the legislator and not through case law. In this regard, the aforementioned vote stated: “This Chamber has already ruled, through resolutions 2014-013820 and 2014-017411, to the effect that the reinstatement of Article 466 bis of the Code of Criminal Procedure refers only to the cassation appeal and what is provided therein cannot be extended to the appeal. The resolutions of this Chamber cannot be subject to an acción de inconstitucionalidad. What this action seeks is for this Chamber to change what was expressed in the indicated resolutions, and no appeal whatsoever is available against the resolutions of this Chamber. Furthermore, the interpretive claim regarding Article 466 bis of the Code of Criminal Procedure falls under the competence of the legislator, when it seeks to include the appeal in said provision” (vote 2016-016967 of the Constitutional Chamber, at 10:42 hours, on November 16, 2016, emphasis not in the original). Finally, in a factual scenario where the accused was acquitted on two occasions at trial and despite that, the Court of Appeal of Criminal Judgment ordered the reenvío of the case, the Constitutional Chamber reiterated what was set forth in resolution 2016-016967 cited supra and added that: “the conformity of the challenged provision with the Political Constitution has already been resolved by this Constitutional Court on repeated occasions, expressly addressing the arguments formulated to the effect that not only should the unconstitutionality of the aforementioned precept be declared, but rather that this Constitutional Tribunal annul and modify the criterion expressed in decisions No. 2014-013820 and 2014-017411 in relation to that provision, which cannot be done in this proceeding. In short, this is an extreme on which this Constitutional Tribunal should not intervene, but rather, on the contrary, its resolution is a matter for the Legislator, who must determine the viability of extending the scope of that precept to the appeal, as sought by the petitioner, which falls within its scope of normative configuration. Consequently, the questioned precept is not considered unconstitutional and, therefore, what is appropriate is the rejection on the merits of the action” (vote 2018-006095 at 9:20 hours, on April 18, 2018). Having clarified the background of the double conformity and its purpose, as well as the process for its incorporation into the legal order, its subsequent repeal, and finally its reinstatement, it is necessary to establish when the double conformity becomes applicable, taking into consideration the limits set in the ruling of the constitutional jurisdiction regarding the scope of the institute. In this sense, it must be borne in mind that Article 13 of the Ley de Jurisdicción Constitucional provides that the case law and precedents of the constitutional jurisdiction are binding erga omnes and therefore, among all reasonable ways of interpreting the provision, one must always choose that which conforms to constitutional case law. Thus, the votes of the Constitutional Chamber set forth supra related to the scope of the double conformity constitute an insurmountable barrier in the legal interpretation that the jurisdictional body cannot ignore when resolving a conflict. In this case, based on votes 2014-013820, 2014-017411, 2016-016967 and 2018-006095, all of the Constitutional Chamber and related to acciones de inconstitucionalidad concerning the double conformity, it can be inferred that when Article 466 bis of the Code of Criminal Procedure establishes a limit to challenging the second acquittal, a literal grammatical reading of the provision must be made, understanding that the limit to the ius puniendi is restricted to the scenarios of the cassation appeal and not the appeal of judgment, as the constitutional body expressly recognized (…) In the specific case, even though the case law of the constitutional body has made a literal grammatical reading of Article 466 bis of the aforementioned regulations, based on said method of interpretation (…) regardless of the reasoning set forth by the ad quem and its consistency with the provisions of the Constitutional Chamber in relation to the possibility it had of analyzing the merits of the appeal of judgment instead of declaring it inadmissible, the fact is that the factual scenario provided in Article 466 bis of the Code of Criminal Procedure is verified here and, consequently, given a second acquittal handed down by the trial court, a cassation appeal cannot be filed, a conclusion that is consistent with the case law of the Constitutional Chamber, making it improper to analyze the correctness of the ad quem’s resolution. Said conclusion is consistent with a subjective voluntarist or teleological interpretation, insofar as, based on the background of the provision, it can be clearly established that the purpose of the double conformity was to prevent reenvío trials ad infinitum and aims to guarantee the principle of legal certainty. In this regard, it must be remembered that the double conformity is a primary guarantee (FERRAJOLI, Luigi. Derechos y garantías. La ley penal del más débil. Editorial Trotta, seventh edition, Spain, 2010, p. 43) of the fundamental right not to be criminally prosecuted indefinitely (GUTIÉRREZ CARRO, Agustín. La inimpugnabilidad de la segunda absolutoria penal como garantía de derechos fundamentales: un ejemplo del enfoque postpositivista al servicio del garantismo. Revista Digital de la Maestría en Ciencias Penales, number 8, 2016, consulted at https://revistas.ucr.ac.cr/index.php/RDMCP/issue/view/2191). From this perspective, claiming that the double conformity only proceeds when the ad quem and the a quo decide in accordance with the law implies a requirement not provided in the provision that would empty the guarantee of the double conformity of its content and would require that in all cases, the Third Chamber of the Supreme Court of Justice must review the merits of the resolution of the Court of Appeal of Criminal Judgment to see if it conforms to substantive and procedural law, which is absurd, since in the balance struck by the legislator between the principles of legal certainty and effective judicial protection when establishing the double conformity as a limit to the ius puniendi, prevalence was given to legal certainty when two acquittals are handed down, without considering whether the acquittal was appropriate or not. For these reasons, considering that in this specific case two acquittals have been handed down at the trial stage, assessing the purpose of the provision, in accordance with the scope of the resolutions of the Constitutional Chamber related to the double conformity, it must be concluded that the appeal filed by the representative of the Public Prosecutor’s Office (…) must be declared without merit.” However, even though this chamber agrees with the jurisdictional reasoning expressed supra—that is, it agrees both with the need to maintain the double conformity figure and with the observations that the repeal of the provision by the legislator was a mistake, especially when done supposedly to comply with an international ruling, and likewise agrees that the Constitutional Chamber, in its interpretive exercise, disregarded human rights principles and revoked its own decision by an improper means (adición)—it cannot but acknowledge that, given the existence of a binding vote from the Constitutional Chamber, express and final on the point, it must be applied. Not doing so would be to incur in errors similar to those attributed to said constitutional body, and there are no conventionality criteria, of higher rank regarding domestic law, to set aside the constitutional vote. Therefore, the ruling of the Third Chamber on the issue of the double conformity does not bind this body not only because the law does not give it that character and there exists a principle of higher rank (constitutional and conventional) of judicial independence but also because, in any case, it does not nullify the analysis that has been set forth (where the Constitutional Chamber itself, in a later and explicit vote on the constitutionality of the various interpretations, ruled contrary to said thesis). That is, the substantive criterion of the cassation body is not shared insofar as it disregards the last binding vote of the Constitutional Chamber. Therefore, in principle and from this perspective, the prosecutorial challenge must be heard and the request, raised by the defendant’s counsel during the hearing held, for it to be declared inadmissible must be rejected, saving the responsibility of those who compose this court for the consequences of the vote of the Constitutional Chamber (not shared, but which binds us). II.- As the first ground of the public defender’s appeal, the violation of the principle of effective judicial protection, actions contrary to due process in the reception of evidence, and disintegration of the court by using electronic means irregularly are alleged. He states that while he understands that, due to the pandemic circumstances, the use of technological tools is appropriate, he criticizes the way it was used in this specific case because on December 3, 2020, in one of the continuances of the trial and when the tenth day of suspension was about to expire, two of the alternate judges connected to the hearing via Microsoft Teams from their homes, as health orders were issued to them due to suspicion of being infected with SARS-Cov-2. He states that, instead of annulling the trial, it was decided to continue it by that means and incorporate documentary evidence, but that was a disintegration of the court in violation of the principle of effective judicial protection, the content of which he explains. He indicates that the judges who were not physically present in the courtroom did not take cognizance of the content of the documentary evidence incorporated that day, as they did not have access to the physical case file, and that the stress factor both were experiencing—being under a health order regarding a disease that by that date had killed two million people worldwide—could affect the levels of concentration, immediacy, and integration. He says that the protocol defined in circular 102-2020 refers to the possibility of the parties connecting remotely, not that the court does so. Furthermore, in his conclusions, he referred to the psychological expert reports conducted on the victims that were incorporated on December 3, 2020, but the judgment did not allude to the issue, which demonstrates, in the appellant's opinion, the magnitude of the disintegration, as that evidence was incorporated on that same date and was not paid attention to. He transcribes case law pronouncements on the integration of courts and alludes to the vote of the Constitutional Chamber number 1624-2020 which, as he explains (although this chamber did not locate any ruling on that issue with that number), states that while technological measures are permitted due to the pandemic, they must respect fundamental rights and adds that a botched job that brings with it the nullification of the basic content of a guarantee cannot be permitted. He asks that the challenged judgment be annulled. As the second ground of appeal of the defense’s appeal, the violation of the principles of effective judicial protection, due process, and natural judge in the reception of evidence is alleged due to disintegration of the court, because during the trial proceedings, specifically while testimonial evidence was being received, Judge Mauricio Jiménez Vargas remained asleep for several moments that the defender cites by referring to the audiovisual files and time sequences (five in total) and that all of this happened during the testimony of the victim [Name 005] and of the accused. He transcribes, in part, vote number 1559-2019 of this court (with a different composition) and asks that the judgment be annulled. During the oral hearing, the challenger did not refer to this issue, nor did the defendant. When responding to the appeal, the prosecuting attorney requested that it be denied. Regarding the first argument, she indicated that, while what happened with the judges did occur, she considers the defender to be disloyal because he does not inform that neither he nor his client expressed opposition to the debate proceedings being conducted in that manner. She adds that the female judge who was presiding in person at the trial explained to the parties the way in which that hearing would be conducted and, starting at minute 00:05:06, gave the floor to all parties to state their position on the matter, and the defender stated that it was his interest and that of his client that the trial could continue. She states that the court’s technician had previously coordinated with the defender so that he would not present the defense witness scheduled to be heard that day, which shows the total consent of the parties for the debate proceedings to be conducted in the manner they were and for the order of evidence incorporation to be altered and for the early incorporation of documentary evidence to be admitted. Therefore, the documentary elements admitted in the order to proceed to trial were incorporated, mentioning them, without any of the procedural subjects requesting the full reading of any of the documents. Being connected via Microsoft Teams, Judge Ramírez Angulo and Judge Jiménez Vargas were able to observe and hear the incorporation that, by reading, the presiding judge of the court, who was physically present in the courtroom, was performing, and it is not until the deliberation phase when, in practice, judges take cognizance of the entire content of the admitted documents. She concludes that it is materially impossible for the three judges, in this or any other trial, to jointly read the documents at the time of the incorporation of the evidence. Regarding the other argument, she states that, indeed, upon observing the videos at the moments indicated by the appellant, one can appreciate that Mr. Jiménez closes his eyes, and this could be due to tiredness or even to refresh his sight, but that it is not possible to affirm with certainty, nor in a reasoned manner, that those biological reactions constitute interruptions in the judge’s cognitive development and perception of the parties' arguments, the reproduction of the evidence, or the rites of the trial. She indicates that this trial extended over several months, that the victims’ accounts and the accused's statement were lengthy, and that, moreover, if one observes the entirety of the trial, it can be inferred that the appellant suffered the same biological consequences he accuses, without that implying he was sleeping, since biologically a person can close their eyes without that meaning they are dozing, so she requests the complaint be denied. During the oral hearing, the prosecutor who appeared stated that the protocol stipulated in circular number 102-2020 of Full Court was complied with and that only assumptions are made that the documents were not accessed. He refers to votes from this court on the issue of judges dozing (votes number 2016-326 and 2016-346). The representative of Temporalidades de la Arquidiócesis de San José stated she would not address this appeal, and the attorney from the Oficina de Defensa Civil de las Víctimas did not elaborate on the issue. The complaints are not meritorious and will be addressed jointly as they refer to issues related to the manner in which the trial was conducted. Firstly, effective judicial protection, or the human right to have judicial systems that resolve conflicts according to law, is not hindered because, in the worst pandemic the world has seen in this century, the way of working is readjusted by guaranteeing the validity of the basic principles for judging individuals in order to protect the health and life of the community, avoiding mass movements that generate the spread of the SARS-CoV-2 virus (and its variants) causing COVID-19. On the contrary, if through existing technological development it is possible to establish measures that reconcile these rights, one should not hesitate to adopt them because, as the Inter-American Court of Human Rights indicated in its Declaration of April 9, 2020, “it is essential that access to justice be guaranteed” and this is for all people.

The opposite, namely, closing justice services, would indeed affect that right, and keeping them open while forcing travel and in-person contact in situations of real risk (areas with increased contagion or health alerts for individuals) seriously endangers the health and life of the people whose protection is, ultimately, the purpose of the entire legal system. It is necessary to recall that human rights are not absolute but admit exceptions insofar as they must be reconciled with other (human rights) of other persons given the characteristic of interconnection between them, which is inherent to the matter. If the Law admits that the greatest value protected by legal systems (the life and dignity of persons) can be excepted when the life of another person is at risk (cases of legitimate defense, for example), with greater reason this exercise of balancing and proportionality must be performed when rights of different orders are involved, as occurs between life and health (higher priority) with respect to certain legal forms that, in any case, can be varied by others without ceasing to protect the substantive right safeguarded (the right to defense, to refute and contradict evidence, etc.). Therefore, in principle, the mere existence of mechanisms different from in-person ones for conducting hearings during periods of crisis is not, in itself, a violation of constitutional principles, unless it is proven that, due to the specific manner in which it was carried out in a specific case, it did generate an unconsented and irreparable impact on one of them. In the present case, the trial developed in this manner: a) it began on November 9, 2020 (see record at folio 660); b) the second hearing took place three days later, on November 12, 2020 (see folios 661-662); c) it continued six days later: November 18, 2020 (see folio 663); d) it proceeded the next day, November 19, 2020 (see folios 665-666); e) within the ten-day period, other consecutive hearings were scheduled for November 23 to 25 (see folios 667 to 668 bis); f) according to health order OD-407-2020 issued in the name of Judge Jiménez Vargas, it was in effect from November 27 until December 10, 2020, and he was medically excused (incapacitado) from December 7 to 10, 2020. The same information was provided by Judge Ramírez Angulo regarding the dates of her health order, adding that she did not require any medical leave (incapacidad médica) because she presented no symptoms (see reverse of folio 826); g) the trial continued on the sixth day after the last session had closed, that is, it proceeded on December 03, 2020. On this occasion, Judge Jiménez and Judge Ramírez were under a health order but without medical leave (incapacidad médica). They connected from their homes via Teams and, as recorded in the trial minutes and the recordings, on that occasion all the documentary evidence stipulated in the order to open trial was incorporated, but the parties stated that they did not want any of those documents read, mentioning some that were still missing from that list or whose processing was pending (see folio 669); h) on the tenth day from that date, it continued on December 17, 2020 (see folio 670), an occasion on which Judge Mauricio Jiménez Vargas and Judge Cinthya Ramírez Angulo already connected via Teams. It should be noted that the medical leave (incapacidad médica) for the first of the judges had already ceased by then; i) the trial continued on January 08, 2021 (see folios 671 to 674). It must be taken into account that the Judicial Branch had a collective closure (for vacations, holidays, and public holidays) from December 18, 2020, to January 04, 2021, so, therefore, that period is non-business days and from the last session to this one, six business days elapsed; j) the trial continued on January 18, 2021 (sixth day) according to folio 681; k) it proceeded on January 20, 25, 27, and 28, 2021, that is, without the ten-day period being exceeded between each one (folios 683, 685, 689, and 690); l) it continued on the seventh day, February 8, and the ten-day period was also not exceeded between that and the following sessions held on February 11, 16, and 18, 2021, this last date being when the operative part was issued, then, within five days, specifically on February 25, the full judgment was handed down (see folios 692-697 and 750). That is, in no case were ten days exceeded between one session and another — which is the maximum possible between hearings, regulated by Article 336 of the Code of Criminal Procedure (Código Procesal Penal), for the act to maintain validity —; in none of the referred hearings were the male and female judges on medical leave (incapacitados médicamente), but in two of them they did have a health isolation order that made it necessary for the proceeding to be held with them in their homes (connected simultaneously by videoconference, via Microsoft Teams, that is, through audiovisual means by which they could speak, listen, see, and be seen) and the rest of the persons were located in the courtroom (from where they could see, speak, and hear the judges who were not in the courtroom), a moment when no one voiced any objection to what was done (but that, in any case, had it been voiced, it did not prevent proceeding in that manner, as will be indicated). This and the non-assessment of some documents in the judgment is what is alleged to be detrimental to rights. The first thing that must be indicated is that the mere existence of an isolation order does not mean that the official is on medical leave (incapacitada médicamente). This distinction is important because leave due to health reasons generates a suspension of jurisdiction and this, in turn, implies that the person cannot perform any jurisdictional act: "The suspension of jurisdiction consists of the fact that the judge, during a period, cannot issue any pronouncement, and that any issued will be absolutely null. A judge has suspended jurisdiction when they have been imposed the disciplinary sanction of suspension, when a judge has been granted special leave, when a judge is on leave due to illness (incapacitado por motivo de enfermedad), when a judge is enjoying their vacation. It should not be confused with the suspension of competence (...) because the suspension of jurisdiction means that the judge in that condition cannot perform any act relating to that function. That is, the impossibility to carry out such procedural or administrative acts is total." [Arguedas Salazar, Olman (2000), Teoría General del Proceso. Editorial Juritexto, 1st ed., San José, Costa Rica, 2000, p. 21]. This is extracted from the same numeral 162 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) which, although it treats this institute jointly with the loss of jurisdiction (which are not equivalent since the former is temporary and the latter permanent), does distinguish its effects, and in numeral 168 ibidem stipulates the nullity of acts performed by those with suspended jurisdiction. In these cases, the person cannot perform any work of their jurisdictional activity during a certain period, and if, despite that, they execute it, the act lacks effects. This has been indicated, for example, in judgments of the formerly named Criminal Cassation Court of San José (Tribunal de Casación Penal de San José) (L. García, R. Chinchilla, and E. Salinas) number 2011-263 and the Criminal Sentence Appeals Court of San José (Tribunal de Apelación de Sentencia Penal de San José) number 2013-2614 (R. Chinchilla, L. García, and J. Arce, with a note by the latter). For their part, health isolation orders are administrative acts issued by the Ministry of Health within the framework of what is stipulated by Article 365 of the General Health Law (Ley General de Salud), which provides: “The isolation of a person or group of persons means their separation from all others, with the exception of the personnel in charge of their care during the period of transmissibility or their placement in places and under conditions that prevent the direct or indirect transmission of the infectious agent to persons or animals that are susceptible or that can transmit the disease to others, according to the severity of the case.” Note that isolation is not only for sick persons but for those suspected of being so because they have had close contact with an affected person, as distinguished by numeral 378 of that law, since in its subsection b) it stipulates: “[Name 003] the person suspected of a contagious disease or that person who, even without presenting evident symptoms or signs of said disease, is subject to an isolation order by reason of being a close contact with a causal agent of the disease, a fixed fine of three base salaries.” Precisely for this reason, Article 336 subsection d) of the Code of Criminal Procedure (Código Procesal Penal) establishes: “The hearing shall be held without interruption, during the consecutive sessions that are necessary until its completion; but it may be suspended for a maximum period of ten days, in the following cases: (…) d) If a judge (…) becomes ill…” In this matter, as detailed, there was no medical leave (incapacidad) of any of the cited judges during the trial hearings; rather, only on two occasions were they covered by health isolation orders, for which they were in their homes connected by electronic means, which, as stated, is not, in itself (but rather by the manner in which it is carried out or the circumstances surrounding the matter, which must be analyzed casuistically), a cause for any disintegration of the court, given the current possibilities of interconnection, which, moreover, guarantee the perception of image, tones of voice, capture of contexts to rule out that the declarant reads, is told something, or is accompanied (coached or intimidated), which allows verifying levels of immediacy and concentration. In the case of collegiate courts and regarding the defense-professional and defense-material relationship, these means (if applied adequately) can also allow immediate private communication to guarantee the right to defense and private deliberation. Consequently, it will be necessary to determine casuistically whether, by the circumstances surrounding a specific matter, any of the underlying guarantees was violated, but the form, in itself, is not censurable. Now, having clarified the above, the appellant's complaint is not, in itself, the videoconference link, nor the isolation situation of those judges (to which the defense itself showed its consent), but rather the disagreement lies in the fact that, in their opinion, they could not become aware of the content of the documentary evidence incorporated that day because they did not have access to the physical case file, a claim that, incidentally and with a view to the duty of loyalty (Article 127 of the Code of Criminal Procedure (Código Procesal Penal)), the cited professional did not voice at the time and, furthermore, if it were acceptable, it would be equally applicable to courts integrated in person in which documentary evidence is incorporated without the need for reading by agreement of the parties and only one of the judges has the physical case file in their hands and the others have an immediate material impossibility of knowing the content, an issue which, for the reasons that will be stated, has no impact on the parties' rights and demonstrates the impropriety of the complaint. In this matter, there is no evidence (beyond the speculation of the appellant) that the other judges lacked access (prior, simultaneous, or subsequent) to the documentary evidence incorporated. It must be remembered that the computer means available today imply the possibility of photographing or scanning documents and transmitting them through mobile messaging services, emails, or even online in real time. In any case, since the parties also did not request that these documents be read (which consisted of what was stipulated in the order to open trial, according to folios 669 front and reverse) and the trial then continued, there was no adversarially affected or immediacy affected in this regard, and the cited judges could perfectly well access their content at another time. That is, what is alleged here is nothing more than respect for the formality considered for its own sake, without protection of any ulterior principle, which is not admissible by virtue of the aphorism ‘pas de nullité sans grief’ (no nullity without prejudice). The appellant indicates that, since the illness for which the male judge and the female judge were preventively isolated, given the suspicion that they carried it, was one that had killed, as of that date, two million people worldwide, this could affect the levels of concentration and immediacy that such judges had, given the nervousness and emotional impact this can generate. And while that could be so (who in the same conditions would not be, or is it perhaps thought that judges are automatons without thoughts or feelings?), it would only apply if some effective incorporation of evidence had taken place that required active attention from the court members and that could not be captured at other times, and if such a thing were demonstrated, but this is not the case, in which the cited documents were not effectively read (they were only mentioned by type or folio) given that the parties consented to such a procedure, and all of them were in the court's possession during the subsequent development of the trial for its analysis. The fact that the psychological expert opinions performed on the victims and that were incorporated on December 03, 2020, were not expressly mentioned in the judgment does not imply that, if that were the case (which is mentioned here only hypothetically), the defect (if it exists) is due to the issue of the health order or the virtual incorporation of the document, but rather to other reasons in the deliberation and writing phase of the decision, which occurred after what is alleged, an issue (whether they were effectively analyzed or not and their weight) that will be taken up again in later sections of this decision. In summary, this Chamber does not find any grievance or irregularity with what was done, which, moreover, conforms to the stipulations contained in the ruling of the Constitutional Chamber (Sala Constitucional) number 11122-2020, in which, although referring to another topic (legislative sessions), it is comparable to the one discussed here insofar as, in both, it concerns state actions governed by principles regulated and designed for times different from the current ones. There it was indicated: «…the Political Constitution is a living normative body, whose interpretation must adapt to new circumstances. When the Constitution mentions concurrence or present votes, it must be understood that this concurrence or presence is not only physical but can also be virtual, as current technologies allow. Even more so, in circumstances of national emergency in which, in order to protect people's health, physical distancing is imposed to prevent the spread of the Covid-19 virus. Certainly, the emergency exists, and the State organs must continue functioning, with adaptations of course, but they must continue functioning for the better satisfaction of the public interest (…) As mentioned in the explanatory statement of the consulted draft, the Office of the Attorney General of the Republic (Procuraduría General de la República) has pointed out that, "new information and communication technologies are not foreign to the Administration and cannot be, insofar as these technologies are changing the society upon which public power acts. It would be contradictory for the State to become obligated to develop or promote information and communication network infrastructures of broad coverage, that are accessible and affordable, and that use the best available technology (…) but simultaneously the State finds itself limited in making use of that technology and the networks that are constituted." (C-298-2007, August 28, 2007). Highlighting that the same consulted draft emphasizes the exceptional nature of the measure, which would be maintained as long as objective and reasonable circumstances occur that prevent holding legislative sessions with the physical presence of deputies. So it concerns a reform to face the current social reality of our country.» (The highlighting is supplied). Similarly, already for judicial matters in specific criminal matter, and more concretely regarding persons deprived of liberty (but equally extensible to those who are not, who may also suffer limitations to other constitutional rights), said Chamber indicated, in ruling number 2021-2260, expressed the following: «…the Justice Administration System and the Penitentiary System must adapt to the current limitations that health measures impose on us, and design and implement the actions that are necessary, so as not to paralyze criminal proceedings, and to guarantee compliance with the constitutional and procedural rights and guarantees held by indicted persons who are deprived of liberty. The foregoing premise is what this Chamber has been developing throughout the precedents issued regarding the effects of the current pandemic within the functioning of the Public Administration. Specifically, regarding criminal procedure and the rights of persons deprived of liberty, it has ordered the design and execution of care protocols for massive cases (of Covid-19) and for medical care requests (both within the Penitentiary System), and in turn, it has ordered that the Jail authorities of the Judicial Investigation Organization (Organismo de Investigación Judicial) implement timely coordination with the respective Criminal Courts and Tribunals, to avoid overcrowding (…) Also, this Chamber, through its precedents, has guaranteed that hearings or trials involving persons deprived of liberty are held, without such proceedings being delayed beyond what is reasonable. And recently, it has validated the use of technologies, such as Videoconferencing, to hold hearings and even trials. The foregoing implies that the Chamber's line maintains that the ordinary thing is the presence of the indicted person within the hearing, so that they can exercise their material defense, and that, in extraordinary cases, their physical or direct presence can be dispensed with, substituting it for their participation through technological means…» (The boldface is supplied). The reasoning is valid, by parity of reason, for other procedural subjects. The other argument, regarding that, while the witness evidence was being received, Judge Mauricio Jiménez Vargas remained with his eyes closed for several moments while the victim [Name 005] and the indicted person were testifying, is also not admissible insofar as having one's eyes closed does not mean one is asleep, and even if it were hypothetically accepted that the latter had occurred for brief seconds that are confirmed in the recording, the judgment analyzed both testimonies, without it being alleged or confirmed that relevant aspects of each of them were left unconsidered, so there was no preterition of evidence or, otherwise, impact on the safeguarded guarantee. This Chamber respects the opinion expressed by another section of this same court through ruling number 1559-2019 (R. García, A. Araya, and G. Figueroa) and cited by the appellant, but does not consider it applicable to the case, because here it has not been proven that the judge was distracted performing other tasks and that this affected the weighing of the evidence, which is what that case refers to: “…the judge was distracted during the depositions of the victim and Mrs. […] , to the point that there were moments when, despite the victim or her mother not making any statement, he continued performing said dynamic of consulting documents and typing on the computer, thus denoting, clearly and evidently, that he was also not taking notes of their testimonies, as could be observed, by way of example, during the deposition of the victim, in the sequences: 00:27:35 to 00:27:45; 00:28:34 to 28:52; 00:29:31 to 00:30:03; 00:31:26 to 00:31:45; 00:36:08 to 00:36:46; 00:36:49 to 00:37:05; 00:38:56 to 00:39:20; 00:40:04 to 00:40:26; 00:41:39 to 00:42:11; and 00:42:50 to 00:43:08, of the judgment counter. He maintained the same attitude during the identification of the indicted person, minutes 00:04:25 to 00:09:40, and also did not suspend said action during pauses (for example, before receiving the testimony of the aggrieved party's mother, where he deployed a similar dynamic, sequence 00:00:39 to 00:02:40), and although because it is an interruption of the trial —where evidence is not being received— his concentration would not be demandable, the truth is that his conduct is only taken here as a reference that the described judge was performing, even tasks unrelated to the trial and to the recording of what was declared by the appearing persons, as could eventually be considered, but —according to the foregoing— this is completely ruled out, since it is not logical that he continue typing when no testimony is being given. Furthermore, it is observed that this situation was repeated on the various occasions when the victim resorted to body language during her narration, and her gestures were also not seen by the indicated member of the collegiate body, who in that way demonstrated his absolute disinterest, disrespect, and lack of consideration toward what was narrated by the victim.” Rather, through ruling number 2016-326, this Chamber, with a partially different composition than the current one (R. Chinchilla, P. Vargas, and J. Campos), has indicated: «it cannot determine that that body incurred constant distractions or of such magnitude that they affected the necessary concentration that judges must have during the adversarial process, without the mere fact, confirmed, that on certain occasions a judge uses the cited device (which is not necessarily for matters unrelated to the functions they perform at that moment) being, in itself, a cause for nullity, but only insofar as it implies a lack of attention to what is happening or is of such a magnitude that this can be validly inferred, as has been considered by different compositions of this Court, for example, in ruling number 166-2015 of 13:10 hrs. on February 02, 2015 (Arce, Campos, and Solís) in which it was stated: "It is important to clarify and underline that for this Sentence Appeals Chamber, the sole circumstance that a judge makes a simple, occasional, and quick query of a cell phone (for example, for messages), does not necessarily imply the nullity of the sentence, but rather the problem arises when –as in this case– the use of the device is very repeated and extends for important periods, such that the distraction affects the capacity to perceive or observe essential elements or events of the trial, necessary for an adequate understanding of the issues to be resolved" (in the same sense, ruling number 2015-388 by Jiménez, Solís, and Gullock) or in ruling 2014-831 (Chinchilla, García, and Gullock) in which it was mentioned: "...although in the audiovisual file (...) one can note that said official, in effect, reads a file, dialogues with the judicial technician, reviews documentation, and makes a note on her cell phone, this cannot lead to the conclusion, as the appellant does, that such acts meant a rupture of the principle of concentration or that the Court had disintegrated, since all these acts are compatible with the function of directing the trial, and there is no additional element to even think that the file she was reading was one different from the one pertaining to this case, because she consults it when the indictment is being read and during the questioning and testimony of the victim, which is necessary to do to determine if it is necessary to incorporate pieces from the case file for the purposes of interrogations. Note that the dialogue with the Court's assistant is very brief and usually occurs, not only in this case, to attend to matters pertaining to the case, such as the order of locating witnesses, verifying that the recording is being made, giving instructions to members of the public or trial guards without the continuity of the trial developing, etc., and the existence of intelligent communication devices means that these are not exclusively for receiving and sending text messages or calls, but rather allow taking notes, making annotations, and even displaying legislation that is stored digitally. Similarly, it is confirmed that, as the Prosecutor's Office rightly points out, the cited official even intervened asking clarifying questions and moderating the trial, so that she showed herself, at all times, attentive to what was happening in the trial, without the defense having invoked a single argument, protest, or activity that was not attended to in a timely manner and that allows evidencing that the invocation of this alleged defect aims at the protection of a substantive matter, principle, or ulterior purpose, and not the simple invocation of nullity for its own sake, in attention to the simple, empty, respect of forms. Likewise, although at other moments during the development of the hearing two of the judges exchanged words between themselves, and on another occasion (...) all three did so, it was for a very short period without such behavior implying, unfailingly, the lack of attention to what was happening and the loss of concentration, although it must certainly be agreed that it is a bad practice, since it is disrespectful to the persons who continue to have the floor. However, it does not entail any defect that allows declaring any nullity, which is why this matter is not even similar to the precedent invoked by the appellant..." (See, in a similar sense, ruling number 2015-118: Salazar, Jiménez, and Rivera, in which the sentence was annulled for manifest lack of attention). That is, although for reasons of respect, courtesy, and responsibility, cell phones or tablets should not be used in the courtroom to observe or answer messages, and if they must be used for matters pertaining to the hearing, it should be advised —for transparency— to the other procedural subjects that they are being used for that purpose, this does not mean that necessarily every time this rule is broken it implies the nullity of what was resolved, since, from old times, it has been insisted that nullity cannot be decreed for its own sake, but only insofar as the form (in this case, attention) safeguards a greater guarantee that is demonstrated or presumed, reasonably, to be breached (the attention to and valuation of the evidence). In this order of ideas, the audiovisual file has been observed (…) and it is determined that although (…) it is observed that the judge (…) is leaning back against the backrest of his chair, apparently with his eyes closed, this does not mean that he was distracted or asleep or not paying attention to the interrogation (…) said judge adopts that position starting from sequence (…) but that did not prevent him from saying some phrases to the presiding judge (at the beginning of the statement) or making different movements (drumming fingers, passing his hand over his face, removing his glasses, etc.). Even, in sequences (…) he makes different movements (looking at the female judges when they talk among themselves), which denotes that he was paying attention. In any case, during the approximate three minutes that he remains in that position, in addition to the different movements he was making, what was being produced were clarifying questions from one of the female judges to the officer, that is, the bulk of this deponent's testimony had already been given. (…) since the gestures of supposed distraction that the appellants point out are very specific and very fast aspects, at moments when no determining or unreproducible act was being produced at another moment, it is appropriate to reject this allegation that assumes that judges must remain immobile, almost like automatons, ignoring that they are human beings who also tire and that paying attention does not necessarily mean that they must remain in rigid positions.» In this matter, during the time sequences indicated by the appellant, the cited judge, although it could be accepted that he kept his eyes closed (which is also not clear from the recording), did not evidence that he was disconnected from what was happening, since in file 11112020020415-2 (DVD 2) in sequence 1:06:00 to 1:06:40 (which is only forty seconds), the presiding judge rests his chin on his hand, moves the other, and finally settles back in the seat, while one female judge asks and the other maintains a listening posture; at minute 1:07:50, the presiding judge is observed still but it is not determined that he is asleep or dozing (previously, moreover, he has removed his mask and drunk water from a cup); in sequence 1:21:45 to 1:24:00, while one female judge types, another reviews documents, and the presiding judge, although leaning back in the chair, adjusts his tie with his hand and makes side-to-side movements with his head as if looking at the papers his colleague is reviewing, all while the questions are about nicknames, persons who visit the site, etc., and in the time counter from 1:30:15 to 1:31:25, the judge is seen reading documents from the case file and turning pages, crosses his arms, fixes his hair, changes position, or remains still.

Finally, in file 08022021090810-2 (DVD 5 with the number manually corrected) starting at sequence 26:10, the presiding judge rests his head on his arm and remains that way until minute 09:00 when a lawyer intervenes, all while the defendant was testifying about how he obtained his visa and the project with sister parishes in the United States; and as for minutes 54:35 to 57:00, while the judges observe their respective monitors, the presiding judge remains passive (except at the end when he adjusts his face mask), almost motionless, all while the defendant refers to a gentleman from the community not involved in the trial and that this gentleman's children slept in bunk beds in the parish while their father was hospitalized. In short, neither the segments are conclusive of inattention on the part of any official, nor were they extensive, nor are the topics decisive or unaddressed in the judgment. Therefore, these complaints must be rejected.

III.- As a third ground of appeal, the defense counsel alleges insufficient evidentiary intellectual reasoning since, in his view, the court's substantiation amounts to nothing more than a sum of empty phrases that never materialize into logical reasoning based on rational arguments. He states that although the judgment need not be a literary piece, in this case the document presented countless spelling errors (more than 300 errors) and formal errors (of the 98 pages of the judgment, 70 are transcriptions) and that this is an indication of deficient argumentation. He narrates that there are two aggrieved persons in the case and that a sexual offense against a minor and another against an adult are charged. Regarding the conviction for the acts committed against [Name 005], he transcribes part of the reasoning and adds that said aggrieved person was not consistent, clear, or precise and was contradicted by exculpatory evidence, which, in his understanding, was not examined. He refers to the account of this aggrieved party (who was granted full credibility); to what the defendant mentioned in that regard, and he comments that the statement of the former was nullified by the complainant's own mother (whose declaration he mentions), who contradicted him, especially regarding time, which contradictions were not analyzed, since the name of [Name 014] is not even mentioned. The same happened with the statement of [Name 015], a version he refers to and which, he narrates, was mentioned only once. He says that this deponent's credibility is undermined based on documentary evidence that bears no relation to these acts, because the emails used to assert that he lied—by saying that [Name 005] did not live or work in the parish—are dated January 21, 2011, six years after the alleged abuses and refer to activities of the [...]. That evidentiary material, he states, was offered to prove the 2010 acts, not those of 2005, which he describes as extremely serious. He adds that there were weaknesses in the analysis of [Name 058], whose credibility was undermined due to animosity toward the aggrieved party, which was concluded from some WhatsApp message screenshots. He indicates that this sentiment and the affection toward the defendant were admitted by the witness himself, but the latter demonstrates that he was not lying, so his statement should have been analyzed together with the rest of the evidence. The same happened with witness [Name 018]. He says that not only was the exculpatory evidence not analyzed, but the contradictions in the aggrieved party's statement were also not explored in depth (first he said the room was small and a sleeping mat would not fit, and then that it was very large, among others that the appellant lists with various quotes from the ruling). Regarding the acts against [Name 003], he mentions what was proven and affirms that generic phrases are used, which do not detail the evidence, and assertions are made that are grammatically poorly written and have spelling errors. He transcribes a paragraph from page 73 of the judgment, in which the court made, in his view, a statement of possibility, which should have implied doubt, but which ended up reaffirming a certainty, and from there onward he specifies other comments on various paragraphs of the judgment, with transcriptions thereof. He says there were no logical arguments for denying value to the witnesses and that the reasoning employed is to believe the aggrieved party and consider everything that contradicts him as not very truthful, but without analyzing content. He adds that his theory of the case consisted of stating that the complaint is part of a plan devised by [Name 003] and other persons to have the defendant removed from his position as parish priest of Santa Marta, as revenge for having undermined the authority and respect that said persons had in the community. He refers to the fact that there were two individuals issuing complaints against the priest, before the formal complaint, and that, when doing so before a superior, the latter met with the local Pastoral Council, determining that the discomfort was only theirs. He says there was a witness, [Name 078], whose declaration is not included in the judgment, but who did appear at trial, who stated that, since his arrival at that parish, there was already discontent from those persons, without the defendant being removed despite that context and without the relative of the uncomfortable parishioners going through the requested channels, but rather going directly to the press. In subsection C) of this argument contained in his brief, the appellant sets forth his theory of the case (describing what each witness contributed) and comments on why this, in his view, is proven or raises doubt about the existence of the acts. He complains that the declaration of [Name 078] does not appear in the judgment, but it is in the audiovisual recording, and what he said about the call from a lady who conveyed communal discontent with the priest, the alleged manipulation by the latter of others (from which only they escaped), and that a relative of an aggrieved party wanted to file an ecclesiastical complaint and [Name 003] appeared in that capacity, but they did not agree on the ways to process it. He refers to the fact that [Name 022] declared that his godson [Name 023], an altar boy at the parish, attended preschool at an educational center near the church, which is why some days he would pick him up and keep him with him in the religious building while the child's mother came for him and they left for their home. He narrated how, on August 5, 2014, officials from the Patronato Nacional de la Infancia appeared at the parish, stating they had received an anonymous complaint through the 9-1-1 emergency system, which indicated that the aforementioned minor was being sexually abused by the priest [Name 001]. This situation was also described by the accused, noting that he was even interviewed by the PANI officials and was able to take a photograph of the document they showed him, which is recorded on folios 482-483 of the case file. The appellant indicates that, although it is not possible to affirm with certainty that the anonymous call was made by Mrs. [Name 038], Mr. [Name 033], or [Name 003], there is an important indication that there was a plot whose purpose was to harm the priest, because whoever made the report had information regarding the ecclesiastical complaint that [Name 003] had filed against [Name 001] months earlier, since that document literally reads: “Reitera que dicho sacerdote ya tiene denuncias en la curia metropolitana y que teme por la PME” ("Reiterates that said priest already has complaints in the metropolitan curia and that he fears for the PME"). The appellant states that this information, of a private nature, could only have been known by [Name 001] himself, the persons in charge of processing this ecclesiastical process, Mr. [Name 003], and those with whom [Name 003] shared such confidence. [Name 003] lived alone, in an apartment located on the same property as his aunt [Name 038] and her husband, [Name 033]. However, PANI determined that the situation was not credible; no judicial or administrative process was generated from this intervention, and [Name 001] was not affected. The appellant concludes that, since on July 17, 2014, [Name 003] filed the canonical complaint before the Metropolitan Curia, but this did not result in the departure of the defendant from the parish, they decided to make the anonymous complaint to PANI, that is, on August 5, 2014. As this also did not yield the desired results, on August 8 he filed the criminal complaint and made it public through the press on August 26, 2014. Finally, the goal of removing Mr. [Name 001] from the Santa Marta parish was achieved. On August 28, 2014, two days after the story of [Name 003] was published in the newspaper La Nación, Mr. [Name 005] came forward to file a criminal complaint against [Name 001] for acts that occurred in 2005. According to the declarations of [Name 005] himself and Ms. [Name 003], this was in order to give “more legal weight” to the complaint of [Name 003]. [Name 005] declared that he depended economically on [Name 001] for six years and received financial assistance from 2005 to 2014, which he stopped receiving of his own volition. However, the accused tells us—the appellant continues stating—that it was due to economic limitations of the Santa Marta parish and on his own initiative that [Name 005] was made to understand that it was no longer possible to continue helping him to cover his university expenses, and this refusal caused [Name 005] to become upset. According to [Name 038] and to [Name 005] himself, the latter befriended Ms. [Name 034] through the collaboration he provided at the Santa Marta parish, as he helped them prepare rooms for premarital catechesis and anything else they needed, which led to [Name 038] inviting him for coffee and meals at her home, with her family, even with [Name 003]. This friendship between [Name 005] and Ms. [Name 034] Mora is relevant, the appellant continues stating, since [Name 038] acknowledged in cross-examination that it was she who told [Name 005] that [Name 003] had filed a complaint against [Name 001]. Furthermore, she told [Name 003] to call [Name 005], because apparently something had also happened to him with [Name 001]. The appellant says that the evidence presented reveals the relevant role of Mrs. [Name 038] in this entire case. He adds that once [Name 005] comes forward to file a complaint, he affirms that the young man [Name 035] was also abused, because he said he had seen [Name 001] touching his penis, a situation he reaffirmed in the oral hearing and provided his telephone number so they could contact him; but when this person appeared as a witness at trial, he denied those assertions, making it clear they were false. The aggrieved party, the appellant continues saying, sought to add more people to denounce [Name 001], such as the young man [Name 066], who received a message through the Facebook Messenger platform from a fake profile, but they offered him 950,000 colones in exchange for filing a complaint against [Name 001]; it even said his complaint would be more credible because he was a person very close to him. This message appears on folio 486 and was recognized by [Name 066] in his capacity as a witness. The appellant adds that, during the oral hearing, both [Name 003] and [Name 005] denied being friends, but from the forensic psychosocial assessment performed on the latter (SPPF-2015-00080, visible on folio 136 of the case file) it is evident that [Name 005] recognizes [Name 003] as his friend. On folio 137, third paragraph, it states that a friend named [Name 003] told him that he had suffered an alleged rape by the same parish priest and asked [Name 005] to tell what had happened to him so that both complaints would have greater legal weight. This friendship between both aggrieved parties is plausible since [Name 003] lived with [Name 038], his aunt, and [Name 005] acknowledged being a close friend of [Name 038]. The appellant concludes this section by saying that «Claramente no es posible afirmar con un grado de certeza absoluto que [Name 038] y [Name 033] orquestaran todo un plan para lograr su cometido de sacar a [Name 001] de la Parroquia de Santa Marta a toda costa y vengarse por “quitarles su corona”, llegando al extremo de instrumentalizar a su sobrino [Name 003] y a su amigo [Name 005] para interponer una denuncia por abusos sexuales. Pero tomando en cuenta toda la información obtenida a través del contradictorio tampoco es una posibilidad automáticamente descartable, sino que merecía una valoración suficiente por parte del tribunal, que si consideraba que no era admisible siquiera para generar una duda debió al menos valorarla, analizarla y descartarla. Sin embargo, una vez más, el tribunal ignora esta teoría por completo. Simplemente la calificó como una “nebulosa para restar credibilidad”, aún y cuando fue expuesta desde el alegato de apertura como nuestra Teoría del Caso.» ("Clearly it is not possible to affirm with absolute certainty that [Name 038] and [Name 033] orchestrated an entire plan to achieve their goal of removing [Name 001] from the Santa Marta Parish at all costs and to take revenge for 'taking away their crown,' going to the extreme of instrumentalizing their nephew [Name 003] and their friend [Name 005] to file a complaint for sexual abuse. But taking into account all the information obtained through the adversarial process, it is also not an automatically dismissible possibility, but rather deserved sufficient assessment by the court, which, if it considered it not even admissible to generate a doubt, should have at least assessed it, analyzed it, and dismissed it. However, once again, the court ignores this theory completely. It simply described it as a 'smokescreen to undermine credibility,' even though it was presented from the opening statement as our Theory of the Case.") (See appeal in the case file). He mentions that at the reading of the judgment, the aggrieved parties or the accused were not present, but witness Carlos Mondragón was, demonstrating that he was interested in the matter. He maintains, in summary, that no examination was conducted on the value of the declarations in terms of coherence, contradictions, non-verbal language, body posture of the speakers, behaviors and reactions during questioning, etc.; that the effort the court made to link his client does not overcome the logical path, and that although there are some indications that are admitted out of procedural loyalty, they are not sufficient to be certain that Mr. [Name 001] committed the offenses attributed to him. He states that, in this case, unlike others, there was exculpatory evidence that categorically denied the event reported by [Name 003], questioned the honorability and sincerity of [Name 005], and exposed well-founded doubts about the intention that moved them to denounce his client, without this being analyzed in depth. He emphasizes his claim that all the elements that supported the defendant's version or raised doubts were ignored or discarded based on untenable arguments or simple arbitrariness, as it is not enough to say that the witnesses were not believed, which is, in essence, what the judges did. He requests that the judgment be annulled and a retrial be ordered.

He requested that an oral hearing be scheduled. During this, the appellant reiterated these statements, setting forth the theory of the case. For his part, the defendant said that it was all a revenge plot by the referred family to remove him from the place. When responding to the appeal, the prosecutorial representation considers that the complaint should not be upheld, since, from the aggrieved party's declaration given both in his complaint and at the oral hearing, it was possible to determine, with certainty, the time frame and to locate it in the year in which both events occurred. It holds that the defense counsel seeks to replace the intellectual reasoning of the court with a series of elements or circumstances regarding whether [Name 005] lived or not in the parish house (casa cural) of the Los Guido parish, thereby giving credibility to exculpatory witnesses who, in the judgment, were duly contradicted, which makes their intellectual exercise inadequate, as it is their own subjective and biased assessment. It adds that from the logical path and the intellectual reasoning of the judgment, it is possible to consider the acts for which he was convicted as proven. The same technique is used to challenge the conviction imposed on the accused for the acts committed against [Name 003], since the appeal expresses disagreement because the judgment did not admit the defensive thesis centered on an alleged revenge carried out by the aggrieved party's aunt, arguments that were duly rejected by the trial court (a quo). It concludes by mentioning that, regarding the analysis of credibility and culpability for the accused acts carried out in the judgment, this was correct, but not regarding the imposed sentence nor the acquittal for one of the offenses, which is challenged in a separate appeal. The representative of Temporalities of the Archdiocese of San José stated she would not comment on this appeal, and the lawyer from the Office of Civil Defense for Victims did not elaborate on the matter. The complaint is not admissible. In the case of the conviction, the defendant was charged with two segments of specific events: i) one (composed of two acts) that occurred in the Parish of Los Guido de Desamparados during the year 2005 when the accused, on two different occasions, while they were sleeping, touched his penis or performed touching in genital areas and masturbatory acts to the detriment of the aggrieved party [Name 005], who at that time was 16 years old and was one of the youths helped by the priest (it should be noted that, to his detriment, but in the year 2010 and in the [...], the defendant was charged with a rape offense, for which he was acquitted and which will be discussed further in another section of this same decision). These events, for which he was convicted, were classified as two offenses of sexual abuse against a minor; and ii) the other event occurred at the [Name 039] in the first half of October 2013 to the detriment of [Name 003] (then an adult) when, while they were watching a television program in one of the rooms of the parish house (casa cural) and accompanied by a third person, the accused proceeded to touch the aggrieved party's genitals. This was classified as a sexual abuse offense against an adult. It is true that, in this matter, the oral hearing lasted for multiple sessions held between November 9, 2020, and February 16, 2021 (without covering every day or both sessions in that period). It is also true that the judgment, approximately 98 pages long, begins the intellectual analysis from recital (Considerando) III, located on page 70, and that the rest of that text focuses on describing both the accused acts and the evidence received orally, which included 19 declarations: that of the defendant, that of both aggrieved parties ([Name 003] and [Name 005]), and that of the following persons: [Name 038] Mora, [Name 079], [Name 041], [Name 078], [Name 042], [Name 043], [Name 044], [Name 045], [Name 046], [Name 047], [Name 048], [Name 058], [Name 049], [Name 015], [Name 014], and [Name 018]. It is also true that the judgment contains multiple spelling and typing errors. However, none of this implies, in itself, a lack of reasoning if one takes into account that the majority of said statements refer to matters unrelated to the investigated acts, as this Chamber has been able to verify from reading the summary of those declarations (which, for the most part, have been accepted by the parties and, when they have not been, have required this court to verify the recordings, without finding significant differences from said summaries). Note that a good part of the declarants refer to the fact that the defendant, a priest of the Catholic Church, carried out extensive humanitarian work and social support for youths with various socio-economic problems so they could continue their studies, and that it was within that framework that he became connected with the aggrieved parties; also, many other witnesses mentioned that there was a kind of dispute between the defendant and a married couple from one of the communities (with a certain indirect family link to one of the complainants), a disagreement that, according to one group of witnesses, arose because they were displaced by the defendant from their parish functions or because, in other versions, they wanted the priest removed as they had reports of improper matters regarding him. None of these facts are relevant to this matter, nor, even hypothetically accepting or completely excluding them, is it susceptible, by itself, of explaining why two persons, of different origins and backgrounds, would provide data related to abuses suffered by the same active subject in different places or moments of their lives; nor why the version of each one of them is internally consistent and complements each other in certain details, nor why they coincide with the other declarants on many of the peripheral topics that the latter did delve into. That is to say, the fact that a person carries out extensive humanitarian work is not an obstacle to them committing an offense, of any kind, including a sexual one. The fact that a person receives help from another does not mean that, therefore, they must maintain a gratitude that borders on the blurring of their dignity and, even less, that they must face the humiliations of which they may be a victim. And, finally, the existence of a conflict between some persons (whether due to the handling of religious, financial, or social matters, or because some have information about criminal acts of the other and, on that basis, seek to raise alerts among others) does not imply a spurious motive for filing a complaint; and while it could be an indication, this is discarded and insufficient to assert such a thing, when the acts are repetitive, to the detriment of different victims (one of whom has no relationship with those persons allegedly involved in the conflict), occur in a similar manner (regarding the exploitation of conditions, toward males, etc.), albeit at different times and places (which also denotes a pattern of conduct). As such, the fact that, despite the duration of the oral hearing and the amount of testimony presented, the judgment is not very extensive in its intellectual reasoning has an adequate explanation and is due to the fact that most of the material presented was not pertinent to the case and, to that extent, a paragraph was sufficient to indicate why, even if the witnesses were truthful (and especially if they were not), this did not affect in any way the credibility of the aggrieved parties regarding events that occurred in circumstances that were not of common access, since, in the generality of occasions, they occurred without witnesses or in the presence of a third person who was asleep or distracted. In this vein, the fact that persons who have been violated by another address that person, publicly or privately, directly (orally or in writing) or through their relatives, telling them they are "going to pay" and disseminate the events in the community, before superiors, or in ecclesiastical or judicial processes, or through news reports, does not necessarily imply a spurious motive, because if they have indeed been victims of such events, they have reason to raise their voices and alert others, which, moreover, from the religious perspective in which all participants are situated, constitutes a false and contradictory discourse regarding what someone in the defendant's position should do. As this is the logic that permeates the entire presentation and the theory of the case raised by the appellant—that if "A" exists, "B" cannot exist, when, in these cases, "A" does not imply "B," nor the reverse, and both scenarios can perfectly coexist without being contradictory since, it is reiterated, the existence of disagreements between two persons and the defendant does not imply that two aggrieved parties unrelated to those persons are lying—this court will not delve deeper into these peripheral aspects. The appellant, regarding the acts against [Name 005], maintains that the aggrieved party was not consistent, clear, or precise and his statement was contradicted by exculpatory evidence that was not examined, but he merely issues his own value judgments, without examining or showing the specific shortcomings of the resolution he challenges, nor indicating why the arguments presented violate the rules of sound judgment (sana crítica), without this Chamber verifying, from the generality of the argument, any specific error in the trial court's (a quo) argumentation. Nor is any pretermission of evidence noted, nor does the appellant specify, except for his generic complaint, which evidence was not assessed or in which essential segments, nor is there any error in the trial court grouping together all the declarations referring to peripheral topics (regarding the quality of person the defendant was, a matter not being judged here) and giving acceptable reasons why they did not contribute to the investigated event without going deeper into the matter. The contradictions mentioned by the appellant between the aggrieved party and his mother (who was only a hearsay witness and not an eyewitness), which the appellant himself acknowledges have greater relevance on the temporal issue, do not change what was decided to the extent that it was the complainant who, being the victim and the one who directly experienced the acts, was in a better position to specify their occurrence, especially since he remained silent for this reason, even with his relatives, for some time. Nor is it significant whether the complainant said the room was small and a sleeping mat would not fit and then that it was very large, as these are comparative and decontextualized references, without the size of the physical space affecting the classification of the crime or the defensive strategy, which has remained unchanged despite those allusions. Similarly, the express hypothetical inclusion of the references made by [Name 014] or [Name 078] does not have the merit of modifying what was resolved, since, it is reiterated, neither was an eyewitness and only alluded to matters that were narrated to them, or, in the case of the latter, to peripheral topics related to the defendant's functions or the complaints against him and the ecclesiastical processes generated. Note that although, in the case of Muñoz, his testimony was not transcribed in the part describing the evidence in the judgment (in point 6 on page 41 of the judgment in PDF, where it only refers to the audio), this does not mean that his statement was ignored, as he is cited and the summarized content of his declaration is mentioned in different parts of the decision, without the legislation (Article 143 of the Code of Criminal Procedure) requiring such references to be made in a specific place or in a particular way. In this regard, for example, on page 94 of the digitized judgment in PDF, it states: "…en el contradictorio se evidenció a través de las declaraciones de [Name 038] y los propios miembros de la iglesia el padre [Name 079] y [Name 078], la insuficiente vigilancia que se ejercía sobre las actuaciones del demandado civil [Name 001], mismas que incluso fueron de conocimiento de la Iglesia desde antes al 10 de julio de 2014, sin que se tomaran acciones para controlar lo que estaba sucediendo e incluso enmendar las situaciones acontecidas y en forma contraria se tomó una posición de callar lo que era de su conocimiento amparados en la doctrina del perdón que rige a la iglesia católica" ("...in the adversarial hearing it was demonstrated through the declarations of [Name 038] and the church members themselves, Father [Name 079] and [Name 078], the insufficient supervision exercised over the actions of the civil defendant [Name 001], the same actions that were even known to the Church before July 10, 2014, without taking actions to control what was happening and even to remedy the events that had occurred; and, conversely, a position was taken to remain silent about what was known, sheltered by the doctrine of forgiveness that governs the Catholic Church"). The fact that [Name 015] was mentioned only once in the judgment also does not affect the validity of said decision, because it is not the quantity of references, but their content, that must be assessed; and, in the case of that deponent, the court did not grant him credibility because "…de la declaración de [Name 058] se extrajeron elementos de importancia, que incluso contradice lo dicho por otros testigos, tal es el caso de la afirmación de que en la habitación había una cama matrimonial utilizada por el padre y no como se indicó por el imputado, [Name 018] y [Name 015], se trataban de tres camas individuales, o la presencia de [Name 005] durmiendo en el lugar pese a que se negó por todos los testigos de descargo, que residiera en el lugar, incluso que laborara en la iglesia parroquial, cuando se aportaron correos del imputado dirigidos a girar instrucciones a [Name 005] de actividades propias de la parroquia que son contestes con una persona que labore o preste un servicio en el lugar, tal es el caso del correo de fecha 21 de enero de 2011 que reza: “La tercera Comunidad Catecumenal de Hatillo ha solicitado la capilla del Llano para una convivencia. Avísales a ellos que si: [Name 054] [Value 001] o [Value 002]. Luego le avisas a los encargados de la Capilla a Doña [Name 055] como sacristana y a [Name 056] de la junta. En Poas de Aserrí el sábado 29 se realizará a las pm una marcha MULTITUDES UNIOS CON JESÚS organizado por iglesias cristianas incluyendo la católica. Solo para que sepas por si alguien pregunta. El jueves 27 de enero debo estar en la Delegación policía. Anotalo en mi agenda y recuérdamelo por favor” (sic) Contradicciones que en igual sentido se reiteran con expresiones vía correo como el correo que el padre [Name 001] remite a [Name 005] en fecha dos de diciembre, a saber: “Gracias, me siento muy bien, estas realizando bien tu trabajo, hasta estoy pendiente del pago de la casa a [Name 058], de tu celular y de ti mismo. Ese es el [Name 005] que me agrada el que hace algo productivo, por los demás por ti mismo a hasta tengo ganas de que entres a la U, como si fuera yo el que voy a entrar. I love You.” (sic) Dejando en evidencia que él pagaba la casa donde residía, situación que ha sido negada durante el interrogatorio en juicio, incluso fue el sustento para desprestigiar al ofendido a quién en todo momento se le ha colocado como un interesado aprovechándose de los demás." ("...from the declaration of [Name 058], important elements were extracted, which even contradict what was said by other witnesses, such as the assertion that in the room there was a double bed used by the priest and not, as indicated by the defendant, [Name 018], and [Name 015], that there were three single beds; or the presence of [Name 005] sleeping at the place even though all the exculpatory witnesses denied that he resided at the place, even that he worked at the parish church, when emails from the defendant were provided directing instructions to [Name 005] regarding activities typical of the parish that are consistent with a person working or providing a service at the place, such as the email dated January 21, 2011, which reads: [quotes email] (sic) Contradictions that in the same sense are reiterated with expressions via email, such as the email that Father [Name 001] sent to [Name 005] on December second, namely: [quotes email] (sic) Making it evident that he paid for the house where he resided, a situation that was denied during questioning at trial, and was even the basis to discredit the aggrieved party, who at all times has been portrayed as a self-interested person taking advantage of others.") All these pieces of evidence, as has been set forth, were analyzed by the Court in an integral manner and, in the terms presented, allowed it to lean toward giving total credibility to the statement of the victim, discarding the version of the facts established by both the technical and material defense, which in itself has been contradictory, imprecise, and clearly forced to justify compromising situations that were impossible to conceal despite the large amount of testimonial evidence that was received and with which an attempt was made to create a fog regarding the existence of the act and the credibility of the victim, who, logically and due to the nature of the crime and the dynamics in which it was executed, is the only one who could establish the spatial-temporal circumstances of the act and, essentially, the modus operandi of the offense that has been considered…” (emphasis added). Note that, from the transcribed text, it is extracted, firstly, why the defense witnesses were not credible and, therefore, their contradictions were not explored in greater depth, but, in addition to this, it is possible to verify that the reference made to the email the defense criticizes has the purpose of highlighting the credibility of the victim's version, referring to the fact that he did support the parishes where the accused worked (he mentioned several) and that he did pay for his housing and studies, a thesis attacked by the defense. Therefore, although the email is from January 21, 2011, six years after the alleged abuses and refers to activities of the [...], from this material the closeness between both subjects can be inferred and it supports the victim's thesis more than that of the accused. The principle of the community of evidence implies that an element, once offered and admitted, may be used for different purposes, so that, although this material could have been offered to prove facts from 2010, it does not prevent it from being used and extracting indications regarding previous or different events. Regarding [Name 058], the court, contrary to the appellant's complaint, was thorough in its analysis. On page 78 of the digital PDF judgment it reads: “…the statement of [Name 058] was received, who established his arrival at the Santa Marta parish at the end of October of the year two thousand, however, he indicated remembering that the accused [Name 001] together with [Name 059] and the victim [Name 003] were watching television in the bedroom, affirming not having witnessed anything strange, but rather that he simply saw Father [Name 001] leave the room and some time later the victim and [Name 022] speaking normally, placing himself in a place and time that the aggrieved party stated was unoccupied at that moment. A situation that is considered by this Court, interpreting complacency on the part of this witness in contradicting the statement of the aggrieved party regarding the acts generated to his detriment, which is due to the bond of this witness with the accused, [Name 001] being the one who provides him with help, understood as housing and food when he had to leave his home due to the constant problems generated in his household because of his father's involvement in drug trafficking and the domestic violence of which they were frequently victims. A situation that allowed him to succeed in his studies and acquisition of means of subsistence later on, making it clear that Father [Name 001] was always present in his life as an option for support and sustenance, evidencing that from the beginning of this process his support for the father was such that he even confronted the complainants trying to discredit them, detracting “per se” from their credibility, so that before this Court, he appeared as a witness clearly inclined to benefit the accused, to the point that he had to acknowledge that he used extremely derogatory and denigrating phrases against people who were against Father [Name 001]. In addition to the above, the defense's own case has contextualized the dynamics of the young people with Father [Name 001], including on the basis of solidarity, companionship, and love for one's neighbor that they profess, for example, they celebrated birthdays, sometimes went for walks, also ate lunch together like that same day, since [Name 059] declared that he "felt bad" not inviting [Name 003] to a plate of food because it was lunchtime, therefore the Court does not trust the account of [Name 058] since how can one believe that on that day his peers together with Father [Name 001], could have lunch and watch a movie in the only bedroom where there is cable television service in the Parish House and they were going to exclude him, that is not to be expected, unless the young man [Name 058] was not at the place. Just as it is also not logical that he was busy looking at some magazines and that for this reason he missed access to the movie, as if he easily had another television with said service, which was denied by the accused [Name 001], who said that cable television was exclusive to his room. Likewise, in the event of overcoming these contradictions, how to trust that a person who was outside the room focusing his attention on some magazines and at the same time finding out what was happening inside a room that had little visibility. Hence, all the previous circumstances lead the Court to conclude that his statement has no credibility whatsoever.” (Emphasis added). Note that the court not only discounted his statement due to feelings of animosity towards the witnesses, but also due to the contradiction with the defense's own evidence and the inherent inconsistencies of his account, without this court determining any irregularity in the scrutiny carried out, which was in accordance with the rules of logic, experience, and elementary psychology, all of which make up the rules of sound judgment. The same happens with witness [Name 018] who, on page 82 of the PDF judgment, is used by the court to partly support the victim's version (the closeness of young people at social risk with the accused) but, at the same time, to deny credibility in other aspects where he was imprecise or complacent and, finally, all these witnesses are scrutinized together stating: «…it is from this point that the Court discounts credibility to the defense witnesses [Name 018], [Name 066], [Name 063], [Name 064] and [Name 048], who at all times sought to place [Name 005] as a lying, self-interested, and bad human being who, faced with the father's negative responses to giving him more help, decided to denounce him, falsely attributing criminal acts, even in contradiction with documentary evidence that was brought to the case file, which was attempted to be decontextualized giving it a different content from what, in the Court's opinion, actually occurred. Such is the case of [Name 064] and [Name 066], witnesses from whom it was possible to infer, showed total animosity towards the victim, evidenced by the text messages indicated “In a message sent by WhatsApp to the group called “[Name 081]” in which he states “Mae cago (sic) en su madre pedaso (sic) de hijueputa y me alegro mucho que su abuela se muriera sabe que me cago en el vidrio del ataúd de su abuela malparido [Name 005]” and even made publications on social media to the general public “como pueden haver (sic) personas tan hijueputas en este mundo que se le dan (sic) de comer y muerden la mano del que les da de comer que hablan sin saber … Nadie es culpable has (sic) que se demuestre lo contrario malditos fariseos en esta vida todo se paga…Son como las culebras, pero muy sencillo las culebras se matan pizoteando (sic) la cabeza… [Name 005]\” entering into public discussions with a person named [Name 070], a person who responded “otro mae como le dije a [Name 068] ahora digame (sic) en q (sic) me ayudo ese mae a mí? En nada papi para eso siempre he bretiado (sic) para no tener que dar nada a cambio de favores y no lo dije yo lo dijo el que lo denuncio!”“ [Name 070] Mae yo hablo xg le creo a [Name 005] y si resulta mentira cosa g dudo yo voy a ser el primero en disculparme públicamente mientras no!!” (sic) [Name 064] : “Que más que [Name 005] cuando viví con él porque el hace todo eso porque como él lo encontró robando plata de la iglesia y le quitó toda ayuda por eso [Name 005] esta doido por él tiene que agradecerle por que por esa persona él tiene una carre” (sic) “Jaja siga hablando sin saber cómo te dige espero muy pronto tus discutpas ha esa persona y por este medio culebra” (sic) Y usted no es nadie para juzgar no juzguéis porque serás gusgado” (sic) [Name 070]: “Si mae ahora todo mundo busca vengarse inventando cosas pff ni q la gente fuea estúpida para no darse cuenta como están las varas pero igual para eso está la ley para gadar en el asunto y se haga pagar a los responsables en caso de g sea. (sic) and in the case of [Name 066]: who participated in these dialogues stating “esto es así [Name 058] como mierda que es ese perro que muerde la mano que le da de comer”. Elements that were considered in relation to (sic) the objectivity and credibility of the witnesses who were received during the cross-examination and allow explaining the reason for their complacent statements towards the defense's version, who with “in personae” fallacies, attempted to eliminate the existence of the act that has been considered proven. However, from the statement of [Name 058], important elements were extracted, which even contradict what was said by other witnesses…» (Digital judgment, pages 85-86 of the PDF; the emphasis is ours; the spelling errors are from the original documents). As can be seen from the transcribed text, the trial court not only did not disregard the referred evidence, but analyzed it as it should, noting the interest (which is not the same as recognizing it as being evidenced by attitudes as non-objective as the insults towards the victim) that some defense witnesses assumed, a sufficient reason to deny them credibility but which, as if that were not enough, was also linked to contradictions between them and internal contradictions of some. Finally, the fact that on the day of the reading of the operative part neither of the two victims attended and the subject of [Name 072] did, who, together with his wife, were the only ones complaining about the priest, does not imply any irregularity or indication of the falsehood of their statements, since it is in the interest of any person to verify what is resolved in a criminal process involving figures from their community and for which they even intervened by taking steps regarding what was considered the common good. For all the above reasons, the arguments raised do not have the merit to modify what was decided and must be rejected.

IV.- In the first argument of the appeal filed by the Public Prosecutor's Office, a violation of due process is alleged due to an erroneous application of the principle of correlation between accusation and judgment, which led to the non-application of the substantive norm, specifically articles 156 and 157 of the Criminal Code. The appellant argues that the accused was acquitted for the fourth event of the accusation (where [Name 005] was listed as the victim) because it was considered that, from the wording of said act, it was not possible to extract the imputation required by the criminal type of rape. However, for the appellant, this reasoning is unfounded. She transcribes what is stipulated, in this regard, in the prosecutorial document and considers that both from there and from the complaint and the statement given at trial by the aggrieved party, it is possible to determine that what is imputed fits the crime of rape, since the circumstances of time, mode, place, and the aggravating factor derived from the accused's condition as a priest are described, which generated the trust in the victim so that [Name 001] abusively carried out the action of introducing his penis into the victim's anus. Contrary to what the court indicates, in her opinion, it is not required to indicate that the active subject carried out the conduct with the intent to "rape" since the simple wording of the criminal type directly alludes to the verb penetrate. She considers that the accusation does describe this typical action and that, even by removing from the accused act the phrase “with the intention of sexually abusing the aggrieved party”, the result would have been a conviction for the crime of rape, since the accused's right of defense was not violated at any time. She concludes by saying that, regardless of whether the active subject's purpose was to abuse or rape, one does not exclude the other, since, in the case of sexual crimes, the criminal actions will always be abusive and will always have a sexual intention. She requests that this extreme of what was decided be annulled and a retrial be ordered, keeping the judgment intact regarding the conviction for the remaining crimes. The argument was reiterated at the hearing. When responding to the appeal, the defense attorney requested that the appeal be declared inadmissible (which has already been resolved in the first sections of this judgment). The representative of Temporalities of the Archdiocese of San José said she would not rule on this challenge and the lawyer from the Civil Defense Office for Victims also did not do so. The complaints are not admissible. The crime of rape attributed to the accused was to the detriment of the victim [Name 005]., was located in 2010 at the [...] and was described as follows: “1. The offended person [Name 005]. was born on September third, 1988 (…) 4. Subsequently, without being able to specify the exact date, but in the year 2010, one day in the evening hours, the victim [Name 005].

was lying in his bedroom at the [...], at which time the accused [Name 001] appeared, who, taking advantage of the relationship of trust established with the aggrieved party, as well as his power relationship since he was the Priest, with the intention of sexually abusing the aggrieved party, lay down next to the aggrieved party and abusively pulled down his boxers and immediately penetrated his penis into his anus until ejaculation.” (The name is replaced by initials). This imputation allows determining that, at the date of the events, the victim was of legal age (22 years old), had no disability, and the event is not accused of being committed with violence against persons. This is important because, based on these circumstances, the trial court determined that the prosecutorial imputation did not attribute the condition of vulnerability that the accused was said to have taken advantage of. After making extensive doctrinal and jurisprudential references on the relevance of the imputation and its normative support and copying the accused acts, the court justified the acquittal with the following arguments set forth in Considerando II.4 (page 87 and following of the PDF judgment): «An act that it sought to fit into the provisions of article 156 of the Criminal Code, which (…) establishes as an action constituting the crime “carnal access” under certain assumptions; the first, minority of the victim which in the case at hand does not apply because in the year two thousand and ten [Name 005] was twenty years old, the second when there is vulnerability of the victim, inability to resist and this is taken advantage of by the active subject to access the victim or make them access, an element that in the specific case is not described in the imputation made against the accused, the Public Prosecutor's Office wrongly opting, in the Court's opinion, to describe in the accusation elements proper to sexual abuse and not those that corresponded to the typicality of rape, which is in no way corrected by elements of aggravating factors established in article 157 of the same normative body, such as the relationship of power or that of priest, since they are not described in the current norm and in all cases for an aggravating factor to be established the base type must exist. Thus, in the case under analysis, the Public Prosecutor's Office incurs a serious error when imputing the act, which affects the possibility of this Court being able to consider it proven, since its correction at this procedural stage (trial) and by the same sentencing Court, implies a violation of the principle of (sic) correlation between accusation and judgment, for having to modify essential elements of the imputation, due process, and the right of defense that assists the accused, therefore it is considered that the appropriate course in this case is to acquit the accused [Name 001] of the crime of rape that to the detriment of [Name 005] was being attributed to him.» (Emphasis added). This Chamber agrees with the position of the trial court. Note that in the facts of the prosecutorial document, although it is mentioned that the accused used his relationship of trust and power, as a priest, this is part of the aggravating factor for rape stipulated in numeral 157 subsection 8 when indicating “The prison term shall be from twelve to eighteen years when: (…) The author carries out the conduct taking advantage of a power relationship resulting from the exercise of his position, and this is carried out by religious ministers, spiritual guides…” However, for an aggravating factor to exist, the assumptions of the basic type must be met, which stipulates: “Article 156.- Whoever makes a person of one or the other sex access or has carnal access with them by oral, anal, or vaginal means, shall be sanctioned with a prison sentence of ten to sixteen years, in the following cases: 1) When the victim is under thirteen years of age. 2) When the vulnerability of the victim is taken advantage of or the victim is unable to resist. 3) When physical violence or intimidation is used. The same penalty shall be imposed if the action consists of introducing one or more fingers, objects, or animals into the victim, by vaginal or anal means, or forcing them to introduce them themselves.” (Bold text added). Although it is on the basis of the assumption of subsection 2) that the prosecutorial body has tried to base its case, it turns out that it never described, in the facts of the accusation, what this vulnerability of the victim or his inability to resist consisted of, and it is not enough that it be proven that both in the complaint and in his statement at trial he said he was depressed, crying, or seeking comfort, but rather it was necessary that the prosecutorial body stipulate it in the accusation. In other words, although the victim, credibly, said: “In two thousand and ten I had a girlfriend (…) I felt very bad, I was unmotivated (…) I curled up in bed, I just wanted to be there because I felt bad, I took off my clothes to sleep, I stayed just in boxers and sweatpants, I took off my pajamas, I settled on my left side in a fetal position curled up, I felt sad wanting to cry, I didn't feel well, it was around ten at night (…) that room was very dark, lights off, door closed, just without a lock. When I was curled up, the door is heard and it was [Name 001] in his usual Sleepwear, shirt and boxers, he brought a drink, he sits on the bed to see what was wrong with me, he thought it was because of the turtles, I told him what happened with the girl, he lies down behind me, in that trust of so many years of sharing, words of support will relax me, I rejected the drink. I tried it, spicy, I can't stand spicy, I rejected it, I sat up not feeling like seeing him I turned back. He leaned back, we all called him Pa, when he lies down I don't know how much time passed, he behind me, what I had in front was the wall, me with my back turned, he lies down behind me, I feel it normally when he feels bad I lie next to him, I think he's going to talk when I realize he pulls down my boxers, I feel confused, he penetrates me with his penis in the Anus, it lasts a couple of minutes, he pulled my boxers completely down, as he pulled down my buttocks with one of his fingers, I'm 1.89 meters tall, [Name 001] is about one meter seventy something, no more than 75, I remain the same leaning with this side on the (sic) mattress, I didn't want to move. I just wanted the day to end.” In the prosecutorial document, it was not described that he was in a condition of vulnerability due to depression over an emotional breakup and that the accused took advantage of this. To consider it proven in this way, without an accusation that stipulates it, would be a flagrant violation of the principle of correlation between accusation and judgment, as the trial court rightly indicated, even citing jurisprudence from the Inter-American Court of Human Rights. The appellant seems to have misunderstood the trial court's argument, as it does not criticize that the word “rape” was not used nor that it was indicated that the conduct was committed with that particular intent. What is criticized is that it was not described what the cause for the configuration of the basic type consisted of, without which one cannot speak of an aggravating factor and it cannot be considered that, in the absence of this, the right of defense is not affected, since it was essential that the circumstances not be modified, as has been intended in this venue. It is not true that, in the case of sexual crimes, the actions will always be abusive because in this case it refers to persons of legal age who have availability over the legally protected interest. For this very reason, even if it were not accused as such, it could not be considered that a sexual abuse was configured. The criminal type corresponding to the date of the events for sexual abuse against persons of legal age stipulated:

“Article 162.- If the abuses described in the previous article are committed against a person of legal age, the penalty shall be two to four years in prison. The penalty shall be three to six years in prison when: 1) The author takes advantage of the vulnerability of the offended person, or said person is unable to resist or physical violence or intimidation is used. 2) The author is a direct ascendant, descendent, sister or brother of the victim. 3) The author is an uncle, aunt, niece, nephew, or cousin of the victim. 4) The author is the stepmother, stepfather, stepsister, or stepbrother of the victim. 5) The author is the guardian or person in charge of the education, guardianship, or custody of the victim. 6) The author carries out the conduct against any of the relatives of his spouse or cohabitant, indicated in subsections 3) and 4) above. 7) The author takes advantage of his relationship of trust with the victim or their family, whether or not family relationship exists.” (As amended by Article 1 of the Law “Strengthening the fight against the sexual exploitation of minors through the reform and addition of several articles to the Criminal Code, Law No. 4573, and reform of several articles of the Criminal Procedure Code, Law No. 7594”; Law No. 8590 of July 18, 2007). Note that vulnerability is an aggravating factor. Therefore, the description and proof of the circumstances of the basic type were required, that is, of the one referred to in article 161 of the Criminal Code, a numeral that had to be fulfilled in all its elements except for the age of the victim, who was already of legal age. At that date, said numeral indicated:

“Article 161.- Sexual abuses against minors and incapacitated persons. Whoever abusively carries out acts for sexual purposes against a minor or incapacitated person or forces them to carry them out on the agent, on themselves, or on another person, provided it does not constitute the crime of rape, shall be sanctioned with a prison sentence of three to eight years.” (Bold text added). But, in this case, the acts did configure the crime of rape, and therefore, the basic type of sexual abuse was not configured. Thus, the decision is in accordance with the law and the argument must be rejected since it is the prosecutorial body that must bear the consequences of its own negligence or lack of expertise when drafting the imputation, without this being able to be corrected by a jurisdictional body.

V.- In the second ground of the prosecutorial appeal, the lack of reasoning for the imposed penalty is alleged. It indicates that, starting from the third Considerando of the judgment, called “legal analysis” (which it transcribes), the court justified why it chose to impose the minimum penalties for the crimes charged and why these were considered in their simple form and not aggravated, as in the opinion of that representation they should have been convicted. It states that the judges departed from the quantum of punishment requested by the prosecutorial body, which was based on the legal classification —for the acts committed to the detriment of [Name 005] when he was a minor— under article 161 subsection 4 of the Criminal Code in force at the time of the events and which punished sexual abuse with four to 10 years in prison if any of the described aggravating factors occurred, among them that the author took advantage of his relationship of trust with the victim or their family. In the opinion of the appellant, given that the accused used his condition as a priest at the time of committing the act, he made use of the trust with the victim and that, plus the degree of harm to the aggrieved parties due to the way the acts were committed and the opprobrious consequences for the victims, made him deserving of the requested penalty. However, the judges considered that such a cause was not configured and set the minimum sanction for each crime. They consider that there was an error both in the legal classification and in the penalty. They request that the partial invalidity of the appealed judgment be declared regarding these points, but that the judgment remain intact otherwise. The argument was reiterated at the hearing. When responding to the appeal, the defense attorney requested that it be declared inadmissible (which has already been resolved). The representative of Temporalities of the Archdiocese of San José said she would not rule on this appeal and the lawyer from the Civil Defense Office for Victims also did not do so. The complaint is partially admissible. In this section, the appellant disagrees both because the proven facts were not considered part of the aggravated type and because of the amount of the sanction imposed —the minimum for the criminal type in force at that date according to the trial court—. Although the appellant limits herself to transcribing parts of the judgment (which contain reference to the three proven events) and refers, with particular emphasis, to the issue of minority (which only one of the victims had, i.e., it only affects two of the three proven facts), in the end, she requests the annulment of the entire sanction, generically. For this reason and because the transcriptions made in the appeal of the trial judgment allude indistinctly to both victims, this Chamber considers that the totality of the classifications and penalties for the proven facts is being challenged and will address the brief as such (articles 439 and 446 of the Criminal Procedure Code). For these purposes, as the events must be judged with the law in force at the time they occur (article 11 of the Criminal Code) unless subsequent legal norms are issued that are more beneficial to the accused person (articles 12 and 13 of the Criminal Code; 9 of the American Convention on Human Rights and 15 of the International Covenant on Civil and Political Rights), it is necessary, first of all, to recall what was considered proven in the contested decision, in order to properly contextualize the response to the complaint. Then, verify the law in force at that time. Thirdly, rule out that any of the multiple reforms that have occurred in the area of sexual crimes has made the more beneficial retroactivity operative and, finally, address whether the determination made by the trial court was in accordance with the law based on this framework and the evidence presented, without neglecting, of course, the principles of proportionality and resocialization that are transversal to the punitive matter. In this order of ideas, the court sentenced the accused for three crimes: i) two that occurred, on different days, during the year 2005 to the detriment of the victim [Name 005], who, at that time, was 16 years old; and ii) the other event occurring in the first half of October 2013 to the detriment of [Name 003] (then of legal age). As observed, these are events distant in time —for which reason, given the constant practice in the country of legislatively modifying the regulation of sexual crimes— it is necessary to make allusions to different laws, so, to facilitate the exercise, the successive approach will be divided by victim, although in both assumptions the analysis scheme already proposed will be followed. A) Events to the detriment of [Name 005]. The criminal type currently in force regarding the crime of sexual abuse against a minor was reformed by numeral 1 of Law No. 8590 of July 18, 2007, called Law "Strengthening the Fight against the sexual exploitation of minors through the reform and addition of several articles to the Criminal Code, Law No. 4573, and reform of several articles of the Criminal Procedure Code Penal, Law No. 7594”. Therefore, it was not in force on the date of the events (both events occurred in 2005) but it is convenient to take it into account in order to, later, verify if this modification is more beneficial (and retroactively applicable) to the accused, or not, and why. The criminal type in force today (and, it is repeated, prima facie not applicable to the proven picture, given its date of commission), stipulates:

«Article 161.- Sexual abuses against minors and incapacitated persons.

Anyone who abusively performs acts for sexual purposes against a minor or an incapacitated person, or forces them to perform such acts on the agent, on themselves, or on another person, provided it does not constitute the crime of rape, shall be sanctioned with a prison sentence of three to eight years.

The sentence shall be four to ten years in prison when:

The offended person is under fifteen years of age. (As amended above by Article 1 of Law No. 9406 of November 30, 2016, "Strengthening the legal protection of girls and adolescent women in situations of gender-based violence associated with abusive relationships.") The perpetrator takes advantage of the offended person's vulnerability, or that person is unable to resist, or bodily violence or intimidation is used.

The perpetrator is an ascendant, descendant, sister, or brother of the victim.

The perpetrator is an uncle, aunt, niece, nephew, or cousin of the victim. 5) The perpetrator is the stepmother, stepfather, stepsister, or stepbrother of the victim.

The perpetrator is the guardian or responsible for the education, care, or custody (guarda o custodia) of the victim.

The perpetrator carries out the conduct against any of the relatives of their spouse or cohabiting partner, indicated in subsections 3) and 4) above. 8) The perpetrator takes advantage of their relationship of trust, or authority with the victim or their family, whether or not a kinship relationship exists. (As amended above by Article 1 of Law No. 9406 of November 30, 2016, "Strengthening the legal protection of girls and adolescent women in situations of gender-based violence associated with abusive relationships.") For the year 2005 (the date of the proven facts to the detriment of this affected person), the crime of sexual abuse (abusos sexuales) against minors was defined by the change made to the 1973 Penal Code by Article 1 of Law No. 7899 of August 3, 1999. However, before outlining its content, it is imperative to consider some additional data that complicate the legal landscape. That Law No. 7899 of August 3, 1999 (which introduced the criminal offense (tipo penal) we are interested in, but also incorporated other crimes, such as sexual abuse against adults) was partially annulled by Constitutional Chamber sentences numbers 9453-2000 (derived from a facultative consultation (consulta facultativa) where the unconstitutionality of Article 161 of the Penal Code was alleged) and 6304-2000 (which resolved a facultative consultation questioning the constitutionality of Article 162 of the Penal Code). Although the first of those decisions merely states that one should "abide by" what was resolved in the second, the latter made the express declaration of unconstitutionality, although only for the criminal offense mentioning adult offended parties. This generated serious confusion about the scope of that ruling with respect to the minor population affected by sexual crimes, because, on one hand, a referral was made to this annulling vote (voto anulatorio), but, on the other, its content said nothing about that specific provision or subject. In other words, this expressly decreed unconstitutionality did not affect the criminal offense of sexual abuse against minors (Article 161 of the Penal Code), but only the crime against adults (Article 162 of the Penal Code), as the Constitutional Chamber emphatically ruled: "The legislator's omission to indicate the type of sanction implies a transgression of the cited constitutional principles and specifically of numeral 39 of the Political Constitution. Therefore, it is the opinion of this Chamber that the following phrases of Article 162 of the Penal Code, reformed by Law number 7899, called 'Law against the sexual exploitation of minors' (Ley contra la explotación sexual de las personas menores de edad), published in La Gaceta number 159 of August 17, 1999, are unconstitutional: a) From the first paragraph, the phrase: 'The sentence shall be two to four years', b) From the second paragraph, the phrase: 'The sentence shall be three to six years...'". As a product of this resolution, a series of laws and constitutional pronouncements related to the criminal offense of sexual abuse against adults would later be issued, but they will not be outlined in this section as they do not pertain to this matter, although they will be addressed in the other, relating to the offended person who was indeed of legal age. However, since the Constitutional Chamber (in the consultation made on Article 161 of the Penal Code related to affected minors) had referred to the resolution on Article 162 of the Penal Code (unconstitutionality regarding the crime related to adult victims), speculation began as to whether the scope (the nullity) was the same for both situations, and various interpretations on the subject emerged. Finally, it became necessary to bring the discrepancy to the body that originated it, that is, the Constitutional Chamber, and it was thus that, nearly a year later, that court, by means of vote number 10140-2001, partially revoked or annulled (since it was not unambiguous in the appropriate use of legal language and used both terms in different parts of the decision as if they were synonyms, even though they are not!) its own sentence number 9453-2000 to clarify the following: "...the operative part reads: 'Abide by what was resolved in sentence number 06304-2000 of fifteen hours fifty-six minutes on July nineteenth, two thousand.' In said sentence (06304-00), the Chamber partially annulled Article 162 of the Penal Code (...), nothing was indicated regarding Article 161 because it was not the subject of the consultation. Consequently, sentence 09453-00, which resolved the consultation of constitutionality formulated by the Trial Court of Cartago, suffers from an evident error, insofar as said article is concerned. If in the body of the sentence it was considered that the norm was unconstitutional, this should have been established in the operative part, annulling the norm from the legal system starting from the first publication of the respective notice in the Judicial Bulletin and indicating the consequences of said annulment (...) The defects noted should, in principle, be remedied in this resolution. However, it is estimated that the criterion held by the Chamber in relation to Article 161 of the Penal Code, reformed by the cited Law Number 7899, must be modified, and consequently, sentence number 09453 (...) of the year two thousand is partially revoked. Regarding the resolution concerning Article 162 of the same Law, both the recitals (parte considerativa) and operative part of the ruling are maintained," and, regarding the consultation made on Article 161 of the Penal Code (concerning the fact that the second paragraph, regarding aggravating circumstances, did not state the type of penalty—"prison"—which is mentioned in the first paragraph, but only the amount of years), it was said: "...the consultation is resolved in the sense that said article is not contrary to the principle of legality, given that, interpreting the norm both from its grammatical and legal-logical sense, there is no doubt that the legislator provided for the imposition of a 'prison sentence' in the case of aggravated conduct of sexual abuse against minors and incapacitated persons." Once the legal landscape was clarified, Article 161 of the Penal Code in force in 2005 was as follows:

"Sexual Abuse Against Minors and Incapacitated Persons ARTICLE 161.- Anyone who abusively performs acts for sexual purposes against a minor or an incapacitated person, or forces them to perform such acts on the agent, on themselves, or on another person, provided it does not constitute the crime of rape, shall be sanctioned with a prison sentence of three to eight years.

The sentence shall be four to ten years in the following cases:

When the offended person is under twelve years of age.

When the perpetrator takes advantage of the offended person's vulnerability, or that person is unable to resist, or bodily violence or intimidation is used.

When the perpetrator is an ascendant, descendant, brother by consanguinity (consanguinidad) or affinity (afinidad), stepfather or stepmother, spouse, or a person linked in an analogous cohabitation relationship, guardian, or responsible for the education, care, or custody (guarda o custodia) of the victim.

When the perpetrator takes advantage of their relationship of trust with the victim or their family, whether or not a kinship relationship exists." Now, the facts attributed to the accused stipulated: "1. The offended person [Name 005] was born on September third, nineteen eighty-eight, so that at the date the events began, he was sixteen years old. 2. Without being able to specify the exact date, but during the year two thousand five, when the offended person (...) was sixteen years old, on at least one occasion, on an unspecified day, while he was sleeping in the same bed as the defendant [Name 001] in the house [...], the accused [Name 001], with the intention of abusing (abusar) the aggrieved person and taking advantage of his young age, innocence, and the power relationship as a priest, abusively put his hand inside his boxer shorts and touched his penis, to satisfy his lewd desires. 3. Later, without being able to specify the exact date, but during the year two thousand five, when the offended person [Name 005] was sixteen years old, on at least one occasion, on an unspecified day, while he was sleeping in the house [...], the accused here [Name 001], with the intention of abusing the aggrieved person and taking advantage of his young age, innocence, and power relationship as the priest, abusively put his hand inside his boxer shorts and touched his penis, while he masturbated and satisfied his lewd desires." (The bold is added; the offended person's name is replaced by initials and the fact of the acquittal already referenced in another segment of this decision is suppressed). The first thing to highlight, then, is that, although the accusation alludes to the defendant taking advantage of the offended person's "young age," it also stipulated that he was 16 years old at the date of the events, so it is likely that the reference is rather due to the use of an unmodified form, from when the victim was in his youth, close to reaching the age of majority, an amount of years that cannot be considered "young." This means, secondly, that the aggravating circumstance of subsection 1 (being under 12 years of age at the date of the events, an age that would later be increased, but whose norm is also inapplicable as it is not more favorable) must be ruled out. Nor is there evidence of an accusation or proof that any kinship relationship exists between the offended person and the defendant, so subsection 4 is not applicable in that factual segment. Likewise, when contrasting the accused facts against the regulation then in force, it must be emphasized that, at that time, the defendant's condition as a priest (or religious minister) was not expressly stipulated as an aggravating circumstance in the law. Finally, in this series of preliminary considerations, it must be emphasized that the subsequent regulatory provisions (the current one and other changes introduced by Article 1 of Law No. 9406 of November 30, 2016, and which were recorded when transcribing the regulations applicable to this date) did not contemplate regulations favorable to the accused persons, as what they did was increase the penalties or the age of the victim for the aggravating circumstance to arise, as well as create more grounds for aggravation (causales de agravación). Therefore, the exceptions to the rules of extractivity by retroactive application do not apply, and ultra-activity (ultraactividad) or the (now repealed) criminal offense (tipo penal) in force at the date of the proven facts must be used. Now, what remains, consequently, is to verify whether there was an exploitation of vulnerability; whether there was an inability to resist (subsection 2); whether the perpetrator was the guardian or responsible for the care, custody (custodia) of the victim, or whether the perpetrator leveraged his relationship of trust. However, observing the prosecutorial accusation that has been transcribed, nothing is mentioned related to vulnerability, guardianship, care, custody, or education between the active and passive subjects, nor about the inability to resist. What is mentioned is an exploitation of the victim's innocence and his power relationship as the defendant's priest, but this is not equivalent to that. This implies that those aggravating circumstances were not attributed and, therefore, the court could not have referred to them, at least not without grossly violating the principle of correlation between accusation and sentence (principio de correlación entre acusación y sentencia), which integrates, in turn, the constitutional principle of due process (Article 365 of the Code of Criminal Procedure and vote number 1739-92 of the Constitutional Chamber). It remains to be determined, then, whether taking advantage of innocence and the power relationship as a priest (which was the only thing mentioned in the accusatory document) can be considered part of the relationship of trust (subsection 4 of Article 161 of the Penal Code in force in 2005) and how that was assessed in the trial judgment. In this judgment, when analyzing the legal classification and the sentence starting from Considerando (Considering) III, it was stipulated: "Hence, in the present case, the facts constituting the crime of sexual abuse against a minor ([Name 005]) are only deemed accredited, which, according to the provisions of Article 161 of the Penal Code in the abstract (...) Conduct that is deemed accredited in its simple form, because the accusatory document did not describe any of the aggravating circumstances described in the rule, despite them having been present in the case at issue on a factual level. However, this Court is a court of law, and it is required to issue the ruling with total objectivity in respect of the principles of due process, so that, in order to avoid violating the right of defense and the correlation between accusation and sentence, the facts of sexual abuse against a minor were established under the simple description of the referred criminal offense. Under this understanding, the criminal offense of 'Sexual Abuse' contains a series of objective elements describing the possible criminal conduct to be subsumed, which is complemented by the subjective type and forms the initial element of criminality. We have that the manner in which this unlawful conduct is expressed meets its typical description and is extended to other situations that may be admissible within the principle of legality and which are not necessarily explicitly covered in numeral 161 of the Penal Code. As we will see, the common characteristic of the crime of sexual abuse is expressed through the existence of abusive acts, which manifest in diverse ways and gradually form, generically, a concept of abuse capable of accommodating the various forms of their appearance. For its part, the protected legal interest is the sexual integrity and healthy sexual development of the minor (sic). In the specific case, the offended person (passive subject) at the time of the events was sixteen years old, and the defendant [Name 001] (active subject), taking advantage of the age and innocence of his victim, performed two openly abusive actions that harmed his sexual integrity, perpetrated during a time span from February to September of two thousand five, thereby having two crimes of sexual abuse deemed accredited (...) the accused [Name 001] executed two actions classified as criminal offenses protected by criminal law, in that he sexually abused a sixteen-year-old minor, touching his penis under his boxer shorts while he was sleeping, with the second occasion, in addition to an identical touching, involving him touching his penis gently, which was perceived by the offended person through the movement and a sensation of moisture on his back, all for the sole purpose of satisfying his shameless sexual desires. Acts that, for this court, were totally abusive with a clear sexual connotation. In addition to this, it must be stated that the accused sought to perform these acts clandestinely while the minor (sic) was sleeping in the same bed as the defendant, as he was a person he trusted (...) the Court considers it proportional and reasonable to impose on the defendant [Name 001] the sanction of three years in prison for each crime of sexual abuse against a minor that has been deemed accredited (...) A penalty that is also imposed taking into account the personal conditions of the now sentenced person, such that the sanction imposed is proportional to the reproach that must be made to the defendant, fitting, of course, within the principle of resocialization implicit in the penalty and the possibility that he can reintegrate into society satisfactorily, once he reflects on his acts and the effects they produced on the victims. The Court considers that the sanction imposed falls within the parameters established by Law and maintains the due proportion regarding the guilt of the accused and the seriousness of the unlawful act." (Cfr. folio 746 verso and following; the bold is added). Note that the court points out that although it was demonstrated that there was a relationship of trust and that the defendant took advantage of the victim's vulnerability to commit the two acts, none of that was included in the accusation. Therefore, if that situation were taken into account, the already cited principle of correlation would be violated. This Chamber can only coincide with the reasoning and express its concern not only because the error (to the detriment of the victim) was presented in a poorly drafted prosecutorial document, but because the prosecutor seeks to amend it, generating another error (this time to the detriment of the accused), which also implies an absolute invisibilization of the principle of objectivity that must guide the actions of the state prosecuting body (Article 63 of the Code of Criminal Procedure). Being a priest or taking advantage of a position of power does not fit into the aggravating circumstances in force at the date of the events, therefore, the basic criminal offense applied (whose punitive range was from 3 to 8 years in prison) was the appropriate one, and this means that the appeal must be rejected insofar as it attempts to have the facts considered as aggravated. Now, the fact that this was the case does not mean that this condition (of being a religious minister or having a position of power over the offended person) cannot be taken into account within the punitive framework provided for the simple type (three to eight years in prison). However, although it could be (since, certainly, a stranger abusing another person is not the same as someone who, due to their condition, places themselves before the community in a position of ethical superiority and spiritual advising), the court chose to apply the minimum penalty and not increase the lower extreme, indicating that the penalty set (three years for each act) was proportional to the reproach; it fit the personal conditions of the accused—which it mentioned in various parts of the decision, though not in this specific subsection, but which can be integrated since the judgment is a unit of meaning—and it alluded to the principles of proportionality and resocialization. The appellant prosecutor only outlines three arguments for a higher penalty: i) that an aggravating circumstance was present (an issue already dismissed); ii) that in closing arguments, she requested a higher sanction; and iii) that the defendant used his relationship as a priest and the trust he inspired. This Chamber considers that the decision on the punitive amount must be upheld. Firstly, it is necessary to indicate that the mere request for a higher sanction or disagreement with the one imposed is not, in itself, grounds to annul the sanction, as there is no (subjective) right of the prosecuting body to have a specific penalty imposed. The prosecutor, as representative of a public law entity such as the Public Ministry, is a formal party (not substantial, as they do not advance their own subjective claim but only a representation of collective interests) and, for that reason, is not the holder of any right. They can certainly appeal if they consider the decisions adopted are contrary to law, but this is so because the legal system grants them that possibility (principle of bilaterality of appeals), and they must outline the specific arguments for their disagreement with a judicial decision, two of which have already been said to be inadmissible. Secondly, it must be recognized that, in Costa Rican law, the issue of motivating the sanction is one that incorporates certain levels of discretion which, to not become arbitrariness, require a greater intellectual effort (complete and derived motivation; assessment of the guiding principles of resocialization, proportionality, etc.), but the latter does not completely eliminate margins of action for decision-making bodies, which, as long as they comply with them, can adopt decisions that are not necessarily shared but are within their sphere of discretion. This means that there is no absolutely objective parameter to determine why, in a specific case where the punitive ranges stipulated by the legislator are, for example, from one to six months in prison, a three-month sentence is appropriate and not one of two or four months. There are rules, yes, to indicate whether exceeding the minimum was correct or incorrect (if the objective elements of the type were doubly valued, if the determination of the case-rule was not followed, if the arguments used are not acceptable according to the principles that govern us, etc.), but beyond that, there is some amount of non-controllable discretion. This court has highlighted this, with various compositions. For example, in vote number 2013-2483 (L. García, R. Chinchilla, and K. Jiménez), it was stated: "It is true that, in this matter, it is not possible to establish 'tariffs' for imposing sanctions and that, to that extent, as recognized by the dominant doctrine, they have a high dose of discretion. However, so that this does not become arbitrariness, in borderline cases like the present one (where the effective execution of the sentence depends on the amount chosen, for example; or, in others, where the penalty imposed in a second process determines the revocation of a benefit in a prior process, for example), it is much more demanding that the Court make a greater motivational effort by specifying a kind of 'case-rule' (that described by the legislator and which, by meeting the basic objective elements—which cannot be double-valued—admits the minimum penalty) and objective parameters from which circumstances can be established to increase the punitive severity (for example, the presence of several aggravating circumstances, given that the type only requires one) or to decrease it (for example, remorse that can only be used to decrease the reproach). In this latter line of argument, consideration of the resocializing purpose of the sanction is essential, a purpose our national legislator (Article 51 of the Penal Code) and conventional law (Articles 5 and 8 of the American Convention on Human Rights) theoretically assume." Likewise, under the name of the Criminal Cassation Court of San José, in vote number 2011-536 (S. Zúñiga, I. Estrada, and A. Chirino), it was referred to saying that the case-rule was not enough, but that one had to rely on the "normative-threshold" (umbral-normativo): "The case-rule would be constituted by the most frequent form of the type of criminality in question, that is, the common manner of commission, without special, particularizing conditions. Starting from that 'case-rule,' conditions are then sought that specialize (aggravate) the frequent or everyday manner of committing that type of criminality. The legislator already took some type of 'case-rule' into account; that is evident, and for that reason included abstract circumstances that define it and that constitute the form of criminalization. Nevertheless, it is possible to think that the minimum and maximum extremes that were also included in the criminal incrimination will have to be decided between cases that are 'everyday' or 'frequent' and those that, by their manner of being carried out, exceed the frequent forms of the case-rule. This type of criterion would collide with some difficulties: it depends on the judge's experience in the assessment of a specific group of cases; on whether they have experience—from having tried them in other cases—in the various forms of commission, and, of course, on whether their experience is sufficient to establish a basic norm of frequent criminality (case-rule). This is why Wolfgang Frisch, for example, prefers the normative criterion and developed it from the 'normative threshold' (Wolfgang Frisch, 'The direction of the assessment of facts for determining the penalty,' published in the German journal Goltdammer's Archiv, year 1989, pp. 338 et seq.; 366 et seq.). This normative threshold takes into account the prohibition of double valuation and does not consider, for example, cases that strictly pertain to the commission while exhaustively meeting the requirements established in the criminal definition. These latter cases correspond, then, to the constellations of cases that match the minimum amount of the penalty. Those forms of commission that exceed this will tend toward the maximum of the reproach." (The underlining is added). And this was reiterated in vote number 346-2010 of that same body. In this matter, if one follows the case-rule, it can be agreed upon that the conduct of a religious minister who has a relationship of trust is more serious than that of someone lacking these conditions. However, in both this theory and the normative-threshold theory, not only must the negative conditions of the active subject be weighed, but also the positive ones, and, in this case, it follows from the evidence produced (which, it is repeated, was weighed in various sections of the judgment, though not in the penalty section, which does not prevent it from being integrated into this decision) that: i) the accused has carried out significant social work, seeking financing for people without resources, at social risk, so that they could not only obtain their food but also sources of education and following up with them to obtain jobs or trades with which to acquire independence (which neither excludes nor justifies the commission of the crimes); ii) the accused has provided emotional support for people who are victims of other types of structural violence (domestic violence), to the point that the vast majority of witnesses who appeared emphasized it; iii) the accused has no prior convictions. Also, to determine the penalty, including under the case-rule, the conditions of the crime must be weighed, and although the touchings that were performed (here accredited) against the offended person (the only conduct that can be examined, without being able to consider others for which he was exempted from sanction, as doing so would imply violating the principle of res judicata) were serious (to the point of being crimes), they were not of such intensity and consistent frequency as others that practice allows one to see and which, without a doubt, have a deeper impact on the emotional and traumatic consequences of the person harmed by them. Likewise, the age at which the offended person became a victim was not as low as other cases that forensic experience shows, which, to that extent, also generate greater trauma and effects on the psyche and healthy sexuality. For all the reasons stated, weighing all those aspects and dismissing the others, legally inadmissible, on which the appellant bases her claim, the appeal must be rejected regarding the sanctions for the crimes of sexual abuse against a minor (two crimes). Thus, the total sentence of six years for these events must remain unchanged, and the appeal on this point must be rejected. B) Events to the detriment of [Name 003].: The accredited event regarding this offended person was classified as sexual abuse against an adult (Article 162 of the Penal Code) and occurred in October 2013. The accusation charged it in the following terms: "1- Without being able to specify the exact date, but in the month of July of the year two thousand twelve, the offended person [Name 003] assumed responsibility for the ornamentation of the [...], a place where he met the priest [Name 001], the accused here, thus beginning a relationship of friendship and trust with him. 2- Without being able to specify an exact date, but during the first half of the month of October of the year two thousand thirteen, in the afternoon, the accused here [Name 001], taking advantage of the relationship of friendship and trust he had with the aggrieved person [Name 003], invited him and the sacristan [Name 022] to watch a movie in his bedroom, which is inside the Rectory (Casa Cural) located adjacent to the Church (...), a request the offended person consented to, so, without specifying an exact time, but between two and four in the afternoon, both Mr. [Name 022] and the offended person [Name 003] showed up at the bedroom of the defendant here. 3- Once in said chamber, the accused [Name 001], taking advantage of the aggrieved person [Name 003] sitting on the bed, with the sole intent of satisfying his lascivious desires and in an abusive manner, passed his elbow over his leg and then, with his left hand, touched the aggrieved person's penis and near his anus, over his clothes, and then he pulled out his own penis and performed masturbatory motions in front of the aggrieved person." (the bold is added).

As of today (2021), the criminal offense covering this matter stipulates:

«Sexual abuse against persons of legal age Article 162- Sexual abuse against persons of legal age. Whoever abusively performs acts for sexual purposes against a person of legal age, or forces them to perform such acts on the agent, on themselves, or on another person, provided it does not constitute the crime of rape, shall be sanctioned with a prison sentence of two to four years.

The sentence shall be three to six years of imprisonment when:

The perpetrator takes advantage of the vulnerability of the offended person, or the latter is unable to resist, or bodily violence or intimidation is used.

The perpetrator is an ascendant, descendant, sister, or brother of the victim.

The perpetrator is an uncle, aunt, niece, nephew, or cousin of the victim.

The perpetrator is a stepmother, stepfather, stepsister, or stepbrother of the victim.

The perpetrator is the guardian or the person in charge of the education, custody, or care of the victim.

The perpetrator carries out the conduct against any of the relatives of their spouse or cohabitant, indicated in subsections 3) and 4) above. 7) The perpetrator takes advantage of their relationship of trust with the victim or the victim's family, whether or not a family relationship exists.» (Emphasis in the original is supplied). However, this regulation is in force thanks to the approval of the single article of the law to restore the penalty for sexual abuse against persons of legal age, No. 9584 of July 4, 2018. It has already been stated, in the preceding section (and the idea must now be taken up and expanded), that the legal regulation of sexual crimes in Costa Rica has undergone multiple reforms that make the application of the law difficult and, in many cases, given the erroneous legislative technique used, they instead generate decriminalizations. This occurred with the issue of sexual abuse against adult persons (of legal age) and without disability. The Penal Code, law No. 4573 published in La Gaceta of November 15, 1970, originally did not contemplate the specifically regulated conduct. While there was a criminal offense of "dishonest" abuse (article 161) in which the victim's age was not established, it did require that one of the circumstances of rape provided for in numeral 156 ibidem be present (among which were mentioned being under 12 years of age, being deprived of reason, unable to resist, or suffering bodily violence or intimidation). Also provided for, in article 162, was the crime of estupro, which implied "consented" relations at ages where consent was admissible and which, therefore, have no relation to the factual scenario that concerns us. Subsequently, article 1 of law No. 7899 of August 3, 1999, introduced, under article 162 of the Penal Code, sexual abuse against persons of legal age, drafting a text from which the Constitutional Chamber (Sala Constitucional), through rulings number 6304-2000 and number 10140-2001, declared the penalties unconstitutional, rendering the numeral inapplicable, insofar as the sanction only stipulated a minimum and a maximum, but did not indicate its nature: imprisonment, fine, house arrest? To correct the error, law No. 8002 of June 8, 2000, was issued. Another additional reform was made through article 1 of law No. 8590 (called “Law to Strengthen the Fight Against the Sexual Exploitation of Minors through the reform and addition of several articles to the Penal Code, Law No. 4573, and reform of several articles of the Criminal Procedure Code, Law No. 7594”) of July 18, 2007, and the last one in 2018 (law to restore the penalty for sexual abuse against persons of legal age, No. 9584 of July 4), which is the one currently in force but was not in force at the time of the act (article 11 of the Penal Code). As the accredited event is situated during 2013, the earliest regulations are not of interest, only those starting from the 2010 version, at which time the text stipulated:

«Sexual abuse against persons of legal age Article 162.- If the abuses described in the preceding article are committed against a person of legal age, the penalty shall be two to four years of imprisonment.

The sentence shall be three to six years of imprisonment when:

The perpetrator takes advantage of the vulnerability of the offended person, or the latter is unable to resist, or bodily violence or intimidation is used.

The perpetrator is an ascendant, descendant, sister, or brother of the victim.

The perpetrator is an uncle, aunt, niece, nephew, or cousin of the victim. 4) The perpetrator is a stepmother, stepfather, stepsister, or stepbrother of the victim.

The perpetrator is the guardian or the person in charge of the education, custody, or care of the victim.

The perpetrator carries out the conduct against any of the relatives of their spouse or cohabitant, indicated in subsections 3) and 4) above.

The perpetrator takes advantage of their relationship of trust with the victim or the victim's family, whether or not a family relationship exists.» (Emphasis in the original is supplied).

After that, there is only one law (the 2018 one, not applicable to the case due to the date of the events). Why was it introduced? As its name indicates, “to restore the penalty" and this was so because, if one observes the first part of numeral 162 just cited (that is, through the 2007 reform, the article began by saying “If the abuses described in the preceding article”). Prior to many of those changes, as is logical to think following the numerical sequence, before article 162 came 161, which described the prohibited conduct (sexual abuse against minors). However, as a result of legislative activism, articles with a “bis" were added. This occurred between 162 and 161, such that a 161 bis was placed, thereby changing the content of the criminal offense of sexual abuse against persons of legal age and, in doing so, the conduct was exempted from sanction. This is better outlined in a prior pronouncement of this chamber, vote number 2020-1995 issued with a partially different composition to this one (R. Chinchilla, P. Vargas, and A. Herrera with a note from the first two) in which, additionally, the reasons are mentioned why, despite there being an apparent decriminalization of the conduct, it cannot be applied to this case. Judges Chinchilla and Vargas expressed their opinion and that of various compositions of this chamber, making a detailed recount of what occurred (an opinion that is endorsed by the entirety of this composition): «IV. Note from Judges Chinchilla Calderón and Vargas González: The undersigned consider it important to also indicate that the accredited events date from August 22, 2017. The current article 162 of the Penal Code, which contemplates sexual abuse against persons of legal age, was reformed through law No. 9584 of July 4, 2018, a regulation that was not in vain named “Reform of article 162 of law no. 4573, Penal Code (…) to restore the penalty for sexual abuse against persons of legal age.” This was necessary because before, through law No. 8874 of September 24, 2010, a modification was made to the penal law that had the unforeseen effect of emptying this criminal offense of its content, since the wording prior to the current one referred to “The abuses described in the preceding article” and the preceding numeral that gave it content was 161 of the Penal Code. But then, with that law, a numeral 161 bis was introduced, which meant the reference to the “preceding article” now referred to that 161 bis, which did not contemplate any criminal conduct. That is, between September 24, 2010, and July 4, 2018 (a period during which the events of the present case are situated), due to a legislative error, that conduct could not be sanctioned, at least not if one respects, as must be done in a State of Law, the principle of legality, which implies the use of grammatical interpretation as the most restrictive. In this regard, this same chamber, with different compositions, through vote number 2018-1065 of August 10, 2018 (A. Solís, R. Chinchilla, and R. Obando) indicated: «(B) Regarding the typification of the crime of sexual abuse against a person of legal age, this Chamber, with a partially different composition (A. Solís, R. Chinchilla, and J. Campos), has stated: \"(...) Through resolutions number 2014-414 (Note from Judge Chinchilla), 2014-1367 (Solís, Campos, and Rivera), 2015-171 (Campos, Chinchilla, and García), and 2015-205 (Dissenting vote of Judge Solís), those of us who make up this Appeals Chamber pronounced on the decriminalization of sexual abuse against a person of legal age, because numeral 162 of the Penal Code sanctioned as such the actions described in the \"preceding article\"; but the latter —after the reform that introduced article 161 bis—, by referring to the preceding norm, no longer sanctioned any conduct (as numeral 161 of the Penal Code did describe it), because 161 bis did not describe actions, but rather had common provisions regarding the crimes that were located before it. Thus, by virtue of the principle of legality, we considered that it was not feasible to make extensive interpretations in order to uphold the validity of a crime that had been left without any content regarding the action that configured it, concluding that sexual abuse against a person of legal age had been decriminalized by a legislative error. However, the Sala Constitucional, after these decisions, through resolution 2015-2675, of 9:05 hours on February 25, 2015, as a result of an unconstitutionality action filed against articles 161 and 162 of the Penal Code, indicated the following: \"(...) in the case of article 162 of the Penal Code, the Chamber does not deem the principle of legality and specificity in criminal matters violated, considering that the sanctioned conduct has been clearly determined in article 161 of the Penal Code. In this sense, although the wording of article 162 of the Penal Code is not very successful, it is not considered to injure the aforementioned principles, given that the Legislature, with the approval of Law No. 8874, of September 24, 2010, and with the introduction of article 161 bis, at no time intended to decriminalize the sanction provided in article 162 of the Penal Code. On the contrary, it is evident from its wording that it refers to article 161 of the Penal Code, considering that the allusion to \"the abuses described\" only makes sense if linked to that legal precept, that is, article 161 of the Penal Code, which is what systematically and historically gives it its reason. In this regard, the Chamber concludes that the law, in its current terms, is sufficiently clear so that the citizen has the certainty of knowing which actions are sanctioned by article 162, with its referral to article 161 of the Penal Code. Without justifying the lack of rigor or legislative technique in the present case —which could well have added the norm with greater skill or ability—, the truth is that the Latin numeral adverb bis means twice and, added to any whole number, indicates that such number has been repeated for the second time (thus, Dictionary of the Royal Spanish Academy, 21st edition, Madrid, 1992, p. 207), so that it can also be understood that article 162 refers to the integer 161 (which was complemented by 161 bis), insofar as it is evident that Law No. 8874 has neither expressly nor tacitly repealed the crime of ‘Sexual abuse against persons of legal age’ provided in article 162. In short, what happened is that a new article was added that literally came to be located immediately before 162, but which did not repeal or modify 161, which remains in force and is the one to which the former (article 162) clearly refers to allude to the conduct it typifies, with the variant that the victim is a person of legal age\". Taking the foregoing into account, although we do not share the opinion issued by the Constitutional Tribunal, we must apply it, as ordered in the transcribed resolution, in attention to the provision in article 13 of the Ley de la Jurisdicción Constitucional, which states that: \"The case law and precedents of the constitutional jurisdiction are binding erga omnes, except for itself\" (Appeals Tribunal of Criminal Sentencing of the Second Judicial Circuit of San José, resolution number 1273, of 10:30 hours on September 8, 2016. In the same sense and from the same Chamber, resolutions number 1521, of 9:45 hours on October 31, 2016, and 1029, of 11:00 hours on August 3, 2018). This opinion is maintained by those of us who sign this decision, and it makes even more sense because, through law number 9584 published in Alcance number 136 of La Gaceta number 137, of July 30, 2018, article 162 of the Penal Code was modified and in its content it states: \"Whoever abusively performs acts for sexual purposes against a person of legal age, or forces them to perform them on the agent, on themselves, or on another person, provided it does not constitute the crime of rape, shall be sanctioned with a prison sentence of two to four years\". However, this provision could not be applied to these events, as it is a subsequent norm, which would infringe the principle of non-retroactivity of the penal law, which is contemplated in article 34 of the Political Constitution when it states that: \"No law shall be given retroactive effect to the detriment of any person, or their acquired patrimonial rights or consolidated legal situations\"; furthermore, numeral 11 of the Penal Code establishes that \"Punishable acts shall be judged in accordance with the laws in force at the time of their commission\", the exception being the existence of a subsequent, more favorable law, but this is not the case presented in this matter. Notwithstanding what has been said, as indicated supra, due to the existence of a binding resolution issued by the Constitutional Tribunal (article 13 of the Ley de la Jurisdicción Constitucional which upheld the validity of the conduct before that reform), this Chamber must apply article 162 of the Penal Code (in its wording in force for the date of the events), establishing that the description of the typical conduct is found in numeral 161 of that same legal body.» (Emphasis in the original is supplied). That opinion is shared by the signatories who, therefore, consider that the conduct (…) was atypical at the time of the events, that is, due to the aforementioned legislative error, at that time the preceding criminal offense could not be used (which referred to a preceding article to give it content, which was modified when the bis was introduced and the content removed) nor the current one (since that would imply a retroactive application of the penal law, which is not constitutionally or conventionally possible). However, as there exists a binding vote from the constitutional body that must be applied, it must be complied with, and therefore the signing parties state their reservation of responsibility for the manner in which said conviction is issued.» (Emphasis in the original is supplied). In summary, for this tribunal, in the period from September 24, 2010 (when law No. 8874 was issued, creating the 161 bis of the Penal Code) to July 4, 2018 (when law No. 9584 of July 4 was issued to restore the penalty for sexual abuse against a person of legal age), the cited conduct was decriminalized, and as the events of the present case (2013) are situated within that period, it would be appropriate to exonerate the accused from criminal liability, according to the criterion of this judicial body. However, as the Sala Constitucional held a different position through vote number 2015-2675, of 9:05 hours on February 25, 2015, issued in an express unconstitutionality action on that point, and as its case law is binding erga omnes (article 13 of the Ley de la Jurisdicción Constitucional), this chamber can do nothing but abide by this pronouncement, making the caveat, however, that if any liability for the Costa Rican State were to derive from it, it falls on the cited body and not on the undersigned, whose personal opinion differs from that resolved by the constitutional tribunal, but the latter is of mandatory compliance for us, to the point that failing to observe it would generate liability. In addition to the foregoing, it is important to highlight that in the last two laws (the one in force at the date of the events, whose conduct was not specified, and the subsequent one, valid today and created to restore the penalty), the punitive framework of the base offense (two to four years of imprisonment) and that of the aggravated offense (three to six years of imprisonment) is the same, and the grounds for aggravation remain unchanged. That is, the latter was not a subsequent law more beneficial to the accused. The tribunal, when setting the sanction, imposed two years of imprisonment for the sexual abuse against a person of legal age. This is recorded in the issuance of the operative part, although later, when the comprehensive judgment is issued, there are some errors in this regard. The reasoning on the matter is sparse and must be read together with the arguments expressed for the other offended party (where it was emphasized that the prosecuting entity did not properly charge the aggravating circumstances and that, therefore, they could not be considered). However, if one observes the charged fact 2, it does state that the defendant took advantage of their relationship of trust; in fact 1, it is described from when they knew each other and how that relationship had originated, and the aggravating circumstance stipulated in subsection 7 does provide for the relationship of trust as an aggravation (for a minimum sentence of three years). Probably the tribunal noticed this when issuing the comprehensive judgment (when the operative part, which could not be changed, was already final) and that explains the following error: “Likewise, it has been considered accredited, one crime of sexual abuse against a person of legal age, in its simple form due to problems with the charging of the aggravating circumstances of the offense. The foregoing, for acts that occurred to the detriment of [Name 003], establishing that the defendant, in an abusive and surprising manner, touched the penis and anus of the aggrieved party over their clothing , thereby injuring the protected legal interest, namely their sexual integrity (…) the Tribunal considers it proportional and reasonable to impose on the defendant [Name 001], the sanction of three years of imprisonment for each crime of sexual abuse against a minor, which has been considered accredited, as well as three years of imprisonment for the crime of Sexual Abuse against a person of legal age that was considered accredited, the total sentence to be imposed being 8 years of imprisonment.” (The emphasis is supplied). Note that if three years were imposed for each crime and there were three crimes in total (two different offended parties), simple arithmetic makes the sum of the amounts result in nine years of imprisonment in total, but the judgment alludes to a global amount of eight. If one observes the operative part on folios 697 and 748 verso, it will be noted that a sanction of two years had been set for this event, which is the minimum for the base criminal offense, without the aggravation, which was what the tribunal intended to do by excluding the aggravation without further justification. Therefore, for this reason and not for the others put forward by the appellant (which, had that error not existed, could have been addressed in a similar manner to what was said for the other affected party), only on this issue (simple or aggravated legal classification? and sentence amount) must the claim be upheld, the judgment be annulled solely with respect to the crime of sexual abuse against a person of legal age to the detriment of [Name 003]. Note that this error cannot be corrected by this tribunal, because if it were considered that it was a simple addition error and that the a quo body intended to set the minimum amounts of the aggravated offense (three years, for a total of nine and not eight as stated), this clashes with the tribunal's argument that the accusation had not described any aggravating circumstance when that did occur, and that the simple offense was to be used, which prevents rectifying the matter in that way. If, on the other hand, one sought to correct the error by choosing the minimum sentence amount of the base offense (two years, for a correct sum of eight, which is what was imposed in the operative part), one would be choosing the sentence amount for the simple offense and endorsing an argument from the instance body (that there was no proper charging of the aggravation) when, in this case, it was given, and this would make the decision contradictory. For the reasons stated, said annulment must be decreed, and the referral ordered, at which time, in addition, the parties, if they see fit, may redirect the discussion on the eventual decriminalization referred to due to legislative changes to the corresponding constitutional channels.

VII.- On the validity of the criminal action, the normative changes that occurred, and their applicability to the case. Having dismissed the complaints related to the determination of the fact, the assessment of the evidence, and the adequate legal-criminal classification of the proven facts, it is necessary to analyze the validity of the criminal action in each event. This analysis is important because, in accordance with the provisions of articles 42, 459, and 462 of the Criminal Procedure Code (Código Procesal Penal), this tribunal is obliged to review, even ex officio (since no one raises it in this matter), any violation of due process that may occur to guarantee the right to appeal stipulated in article 8.2.h of the American Convention on Human Rights. The fact that the trial only be conducted while the criminal action is in force forms part of that principle of due process (see vote number 2216-2001 of the Sala Constitucional). If we add to this that the accredited events are quite remote in time: 2005 (crime of sexual abuse against a minor) and 2013 (sexual abuse against a person of legal age) and that multiple reforms have occurred in both substantive legislation (which establishes the sentence ranges from which the limitation periods (plazos de prescripción) are calculated) and procedural legislation (which has defined from what moment to begin, interrupt, or suspend the limitation period calculations (cómputos de prescripción) for the criminal action), a thorough scrutiny of the matter is essential to determine, both regarding the acts for which the conviction that persists according to what has been said was given, and the one for which the referral is ordered due to the sentence amount. The first thing that is imperative is to determine the applicable law (substantive and procedural) regarding the limitation period for each of these events. (A.1) Events to the detriment of [Name 005] (minor): These events to the detriment of [Name 005] are situated when he was a minor (16 years old) and during the year 2005, a date on which the applicable criminal offense (for the considerations set forth in considerando V.A, to which reference is made) was the following:

«Sexual abuse against minors and incapacitated persons ARTICLE 161.- Whoever abusively performs acts for sexual purposes against a minor or incapacitated person or forces them to perform such acts on the agent, on themselves, or on another person, provided it does not constitute the crime of rape, shall be sanctioned with a prison sentence of three to eight years.

The sentence shall be four to ten years in the following cases:

When the offended person is under twelve years of age.

When the perpetrator takes advantage of the vulnerability of the offended person, or the latter is unable to resist, or bodily violence or intimidation is used.

When the perpetrator is an ascendant, descendant, brother by consanguinity or affinity, stepfather or stepmother, spouse or person linked in an analogous cohabitation relationship, guardian or person in charge of the education, custody, or care of the victim.

When the perpetrator takes advantage of their relationship of trust with the victim or the victim's family, whether or not a family relationship exists.» Starting from the first paragraph (simple offense applied by the a quo), the amount of eight years of imprisonment was the maximum possible and generated the limit of the limitation period (plazo de prescripción) (article 31, subsection 1 of the Criminal Procedure Code) which, reduced by half due to the commencement of the process and the existence of interrupting acts (and without prejudice to what will be said about the way to start the calculation due to the victim being a minor at the date of the events), would be four years. Now, regarding the rules for the limitation period of the criminal action (prescripción de la acción penal), it must be noted that this case presents significant complexity, as it involves various legal changes: law No. 7594 in force since 1998 (issuance of the original Criminal Procedure Code) and the reforms through laws No. 8590 of 2007, 9057 of 2012, 9685 of 2019, and 9826 of 2020. In the first presentation of the articles, from the entry into force of the Criminal Procedure Code in 1998 (law No. 7594) until July 18, 2007, the procedural legislation did not stipulate any distinction if the acts occurred to the detriment of minors or if they were sexual crimes; instead, the limitation period rule (regla de prescripción) was given only by the passage of the maximum sentence time, reduced or not by half depending on whether suspensive or interrupting acts occurred. The first differentiated regulation for sexual crimes and those against children operated, precisely, through the second version of the norm, law No. 8590 of July 18, 2007, which introduced a reform to subsection a) of article 31 of the Criminal Procedure Code so that it read as follows:

“If the criminal prosecution has not commenced, the action shall prescribe:

• a)After the passage of a period equal to the maximum sentence, for crimes punishable by imprisonment; it may not exceed ten years nor be less than three, except for sexual crimes committed against minors, in which case the limitation period shall begin to run once the victim has reached the age of majority.” (The emphasis is supplied).

As the events were considered accredited in 2005, from the first day of the first month of that year (since the accusation does not specify a date in the year 2005, therefore, in attention to the facts most favorable to the defendant —article 9 of the Criminal Procedure Code—, it must be assumed they occurred at the beginning of that year), until law No. 8590 entered into force on July 18, 2007, two years, six months, and 18 days elapsed. Now, this law is procedural and of public order and, therefore, according to the binding opinion of the Sala Constitucional (see votes number 4397-99 and 11517-2000), it governs from the date of its entry into force, even for pending proceedings. So, starting July 18, 2007, the rules for judging these types of events changed, but that applies to this case if and only if, by then: i) this offended party was still a minor because, on the one hand, retroactive effect could not be given to the law to the detriment of the defendant (article 34 of the Constitution) and, on the other, if he were not, the factual scenario contemplated in that regulation would no longer be met, and ii) provided that the process had not commenced because, had it done so, the suspensive condition that heads the numeral would not occur, nor would the purpose intended by the norm be fulfilled, which is that, because the affected person lacks emotional maturity or the efficient representation of a third party, the acts to their detriment do not go unpunished. As [Name 005] was born on September 3, 1988, as proven (see accredited facts of the judgment on the merits), he turned 18 on September 3, 2006. That is, by the date the new law entered into force (No. 8590 on July 18, 2007), the offended party had already reached the age of majority, therefore that law was not applicable to his situation, and that period of eight years (of which two years, six months, and 18 days had already elapsed) continued its course, pending whether it would be computed reduced by half when a suspensive or interrupting act occurred. Now, the picture does not end there. Through law No. 9057 of July 23, 2012, the cited numeral was reformed for the third time to read as follows:

“If the criminal prosecution has not commenced, the action shall prescribe:

• a)After the passage of a period equal to the maximum sentence, for crimes punishable by imprisonment, it may not exceed ten years nor be less than three, except for crimes committed against minors, in which case the limitation period shall begin to run once the victim has reached the age of majority.” (The emphasis is supplied).

As can be seen, what it did was eliminate the reference only to sexual crimes against minors and extend it to all types of crimes against said population. Since this matter, due to the type of crime (though not the victim's age), was already included in the first list, the referenced change has no major significance here. A fourth modification to that provision occurred in 2019, through law No. 9685 of May 21, 2019, called “Law of the Right to Time, reform of the Penal Code to extend the limitation period for the criminal action (plazo de prescripción de la acción penal) in cases of sexual crimes against minors or persons without volitional or cognitive capacity.” As a result of this regulation, the cited article 31 of the Criminal Procedure Code was to be read as follows:

«ARTICLE 31.- Limitation periods for the criminal action (Plazos de prescripción de la acción penal).

If criminal prosecution has not been initiated, the action shall prescribe:

After a period equal to the maximum penalty has elapsed, for crimes punishable by imprisonment, which may not exceed ten years nor be less than three, except for crimes committed against minors, in which case the prescription shall begin to run from the time the victim has reached the age of majority.

(Thus amended the foregoing subparagraph by Article 1 of Law No. 9057 of July 23, 2012, "Reform of Several Laws on the Prescription of Damages Caused to Minors") After two years, for crimes punishable only by non-custodial penalties and for misdemeanors or infractions.

Twenty-five years after the victim reached the age of majority, in the case of sexual crimes committed against minors or against persons lacking volitional or cognitive capacity. The foregoing rule shall apply indistinctly to any perpetrator, accomplice, or participant responsible for the respective punishable act, provided that they had reached the age of majority at the time of committing the crime." (Emphasis supplied). Note that this provision distinguishes crimes of different natures against minors, as all non-sexual crimes would be governed by subparagraph a) (and the prescription runs from when the victims reach 18 years of age), and sexual crimes to the detriment of this population would be regulated by subparagraph c), and the prescription of the criminal action runs 25 years after reaching the age of majority, that is, from the victim's 43rd birthday. There are many criticisms that can be made of this regulation because, firstly, if one starts from the hierarchy of legal interests established constitutionally and in the doctrine of human rights, it is reasonable that acts that threaten the highest value should be repressed more drastically, both in terms of the types and amounts of penalties and regarding the provisions stipulated to prevent their impunity (prescription periods, etc.). In this logic, for example, attacks against life (attempted homicides, since the victim must be in a position to report—, genocide, etc.) should have a longer prescription period compared to offenses that, although they threaten essential legal interests for a person's development (their sexual freedom), are not of the same rank. On the other hand, the stipulated period (25 years after the age of majority) refers to "sexual crimes" that involve a wide range of offenses that affect, in very diverse ways, the protected legal interest and are not necessarily comparable: rape, sexual abuse, paid sexual relations, improper relations, sex tourism, dissemination of pornography, improper abduction, corruption, procuring, pimping, human trafficking, street sexual harassment, etc. Here the question that must be asked is: why 25 years for all crimes, even though they vary in severity? Finally, the last criticism lies in: what was the stipulated parameter for setting those 25 years? Even on other continents, specific treaties on the subject, such as the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (known as the Lanzarote Convention), ratified by 45 of the 47 member countries of the Council (and although open for signature by non-European countries, it has not been signed or ratified by Costa Rica) establish that: "Each Party shall take the necessary legislative and other measures to ensure that the statute of limitations for initiating proceedings regarding offences established in accordance with Articles 18, 19 paragraph 1.a and b, and 21 paragraph 1.a and b is of sufficient duration to allow the effective start of such proceedings after the victim has reached the age of majority and is proportionate to the gravity of the offence in question." [Emphasis ours]. That is, although the trend to generate differentiated prescription periods for crimes against minors is part of international human rights law, the issue of proportionality must not be abandoned, which, in the cited law, seems to have been abandoned. These and other criticisms of the regulation can be consulted in the research work of Quesada Jiménez, Jorge Luis (2020). Overlapping Imprescriptibility of Sexual Crimes Committed Against Minors or Adults of Majority Age Lacking Volitional or Cognitive Capacity. Master's in Criminal Sciences, University of Costa Rica. However, although these are not minor issues, they will not be explored in depth, as they lack consequences for the specific case. The fifth and final variation of the referenced numeral on this topic (as it was also varied regarding the liability of legal entities, but that topic is of no interest here) generated the current version, which has read as follows since March 10, 2020, according to Law No. 9826:

ARTICLE 31.- Prescription periods for criminal action. If criminal prosecution has not been initiated, the action shall prescribe:

After a period equal to the maximum penalty has elapsed, for crimes punishable by imprisonment, which may not exceed ten years nor be less than three, except for crimes committed against minors, in which case the prescription shall begin to run from the time the victim has reached the age of majority.

(Thus amended the foregoing subparagraph by Article 1 of Law No. 9057 of July 23, 2012, "Reform of Several Laws on the Prescription of Damages Caused to Minors") After two years, for crimes punishable only by non-custodial penalties and for misdemeanors or infractions, except for crimes committed by legal entities, in which case the prescription shall be ten years.

(Thus amended the foregoing subparagraph by Article 41 of the Law on the Liability of Legal Entities for Domestic Bribery, Transnational Bribery, and Other Crimes, No. 9699 of June 10, 2019) Twenty-five years after the victim reached the age of majority, in the case of sexual crimes committed against minors, and twenty-five years from the consummation of the punishable act, the last act of execution of the attempt, or the cessation of the continuous crime, as applicable, when these crimes are committed against adults of majority age lacking volitional or cognitive capacity. The foregoing rule shall apply indistinctly to any perpetrator, accomplice, or participant responsible for the respective punishable act, provided that they had reached the age of majority at the time of committing the crime.

(Thus amended the foregoing subparagraph by the single article of Law No. 9826 of March 10, 2020).

This change also does not apply to this case, as the crime is not against persons lacking cognitive or volitional capacity, which is what was introduced. After that recount, it is of interest to highlight Law No. 9685 of May 21, 2019, which referred to the criminal prescription after 25 years from the age of majority for victims of sexual crimes suffered during minority… is that provision applicable to this case? Note that, if the answer were affirmative, in this matter the prescription of the criminal action would have to begin to be counted until September 3, 2031 (date of the offended party's 18th birthday + 25 years). However, this Chamber considers that it is not, and therefore, the calculation must continue using the common rules because: i) when that law entered into force (May 21, 2019), the offended party had already reached the age of majority (as of September 3, 2006), so he was not within the factual situation provided for by the rule, which intended that victims of crimes who, at the time of its entry into force, had not reached the age of majority and had not reported, would not have the prescriptive rules in force until then applied; ii) the cited law cannot be given retroactive effect to the detriment of the accused (Article 34 of the Constitution): if the law is from 2019 and the acts to the detriment of [Name 005] date from 2005, it is clear that applying it would imply giving it that condition; iii) in all the aforementioned reforms, the beginning of the heading was respected, which refers to "If criminal prosecution has not been initiated." In the opposite sense, when the process has been initiated, these rules do not govern, even if the victim has not yet reached the age of majority. In this sense, see Ruling No. 841-2018 of the Third Chamber of the Supreme Court of Justice and Resolution No. 2014-1961 of the Criminal Sentence Appeals Court of the Second Judicial Circuit of San José (J. Campos, L. García, and R. Chinchilla) which stated: "…the reform so that the criminal action would not prescribe when dealing with sexual crimes to the detriment of minors who have not reported, but rather the prescriptive period would begin to run once they had reached the age of majority, was not introduced until July 18, 2007, by Law No. 8590 published in the official gazette La Gaceta No. 166 of August 30, 2007, and, as the date of the acts is not clear, the most favorable to the accused (Article 9 of the Code of Criminal Procedure) would apply to this factual extreme, which is to estimate that they occurred before August. As said reform does not apply to the acts investigated here, the criminal action would have been extinguished by prescription, regardless of whether, even applying that regulation, it governs the specific case, in which the complaint had already been filed, which is what that numeral excepts, whose purpose was to prevent impunity in those matters where, due to the lack of support from guardians or the lack of maturity of the minor, it was not conceptualized that one was being a victim of a crime, which would not happen either upon reaching the age of majority or if family or social support had been available, to the point that the act was reported." Also, No. 675-2018 (P. Vargas, M. Porras, and L. Murillo) which stated: "The established exception must be read in the context of the article, and from this, it is deduced that as long as criminal prosecution has not been initiated, minor victims are granted special protection, so that it is not until they reach the age of eighteen that the computation of the prescription period begins, a situation that does not occur in cases where the procedure has begun, as here the rules provided in Article 33 of the same regulatory body shall apply." Finally, in Ruling No. 2015-1034 (M. Gómez, R. Chinchilla, and J. Campos) it was indicated: "It must be taken into account that the reform so that the criminal action would not prescribe when dealing with sexual crimes to the detriment of minors who have not reported, but rather the prescriptive period would begin to run once they had reached the age of majority, was not introduced until July 18, 2007, by Law No. 8590 published in the official gazette La Gaceta No. 166 of August 30, 2007. As the provisions of said reform cannot be applied retroactively when the prescriptive period had already elapsed, and given that the complaint by the aggrieved party, in this case, was not filed until February 21, 2011 (folio 1 of the case file), it is necessary, having noted the defect with notorious impact on due process and in accordance with the powers and obligations that Articles 459 and 465 of the Code of Criminal Procedure confer upon this court, to declare ex officio the prescription of the criminal action." In the present litigation, the complaint by [Name 005] was filed on August 28, 2014 (see folio 21); that is, by 2019 when Law No. 9685 entered into force, the case was already in progress, so that law (which prevents using the common prescription rules until the offended party reaches 43 years of age) is not applicable, and the case had to be analyzed based on the common regulations. In summary, the reforms made to the original 1998 text regarding the method for starting the prescription calculation cannot be invoked in this case because: i) Law No. 8590 of 2007, which established the calculation starting from the victim's age of majority, could not be applied because the offended party [Name 005] was born on September 3, 1988, as proven (see proven facts of the merits judgment), so he turned 18 on September 3, 2006. That is, when it entered into force, the offended party was already of majority age, and the cited law could not be applied retroactively; ii) Law No. 9057 of 2012 incorporated provisions for non-sexual crimes, so it is of no interest; iii) Law No. 9685 of 2019 extended the start of the calculation to 25 years after the victim's age of majority if the process had not begun, but in this case, the judicial matter had already started with the complaint on August 28, 2014, when that law entered into force, so it did not apply; iv) Law No. 9826 of 2020 only addressed new issues related to persons with cognitive disabilities, not relevant to this situation. Therefore, the matter must be treated under the original rules on the method for calculating the prescription of criminal action from 1996-1998 (maximum penalty for the crime if there are no interruptive or suspensive acts, and half that amount if there were). Now, at the beginning of this section (A.1), it was indicated that, starting from the first paragraph (simple type applied by the lower court), the maximum possible prison sentence of eight years generated the maximum limit of the prescription period, which, reduced by half due to the start of the process and the existence of interruptive acts, would be four years. The acts occurred in 2005 (without determining an exact date, so, by the in dubio pro reo principle, one must start from the beginning of the year), so the eight years (that is, the full prescription period for the criminal action, not yet reduced by half because no interruptive act had occurred and without its calculation being suspended because the laws referring to that topic are not applicable, as stated) would have been completed by the beginning of 2012. Even if Law No. 8590 of 2007 were taken into account—which established the prescription calculation for the criminal action starting from the victim's age of majority, which occurred on September 3, 2006—the eight years would have been completed on September 3, 2014. The accused was questioned about these acts on November 25, 2014 (see folio 56). This was the interruptive act that, furthermore, reduced the prescriptive period by half. But when it occurred, the full period for the extinction of the criminal action had already completely run. It is true that, from that moment on, the four years (period reduced by half) did not run between the various acts that had effects on the matter, as the summonses to the preliminary hearing were made (among others) on these dates: the first on July 14, 2015 (folio 216), and others on May 2, 2016 (folio 291), May 23, 2016 (folio 315), and June 26, 2016 (folio 332). The first scheduling for trial was made on September 6, 2017 (folio 390), the first judgment was handed down on June 7, 2019 (folios 389-555), the appeals judgment annulling the previous one is dated October 28, 2019 (folio 616), and the scheduling for the new trial dates from January 21, 2020 (folio 628). Although the foregoing are not the only hearings or schedulings, and there are others that have an interruptive effect, they are the most relevant and allow seeing that four years did not elapse between one act and another. However, the full eight years did run from the date of the act until that first interruptive act of the questioning, and this is sufficient to determine that these acts, to the detriment of [Name 005], were judged while being prescribed, and the correct action was to have determined this. Therefore, the conviction imposed on the accused for two acts to the detriment of [Name 005] must be reversed, and in its place, an acquittal ordered due to the extinction of the criminal action by prescription, eliminating the sanction of six years in prison (three for each crime to the detriment of this affected party) from the total amount of the sentence, without this affecting the determination of civil liability. Notwithstanding what will be indicated about the civil matter in another recital (VII), the extinction of the criminal action does not affect the extinction of the civil action because, on the one hand, there is discussion about the applicable regulations regarding periods and grounds, and, on the other hand (and above all), unlike the extinction of the criminal action, the civil one is not declarable ex officio. In this matter, no express exception in this regard has been filed. Therefore, the decision reached in criminal matters in this court does not affect the ruling on civil matters, which will be analyzed later based on other conceptual bases (see section VII.A). (A.2) Acts to the detriment of [Name 003]: These events are placed in 2013, and the victim was an adult at that time. At that date, the crime of sexual abuse against an adult stipulated:

«Sexual abuse against adults Article 162.- If the abuses described in the preceding article are committed against an adult, the penalty shall be two to four years' imprisonment.

The penalty shall be three to six years' imprisonment when:

The perpetrator takes advantage of the vulnerability of the offended person, or the person is unable to resist, or bodily violence or intimidation is used.

The perpetrator is an ascendant, descendant, sister, or brother of the victim.

The perpetrator is an uncle, aunt, nephew, niece, or cousin of the victim.

The perpetrator is a stepmother, stepfather, stepsister, or stepbrother of the victim.

The perpetrator is the guardian or person responsible for the education, care, or custody of the victim.

The perpetrator carries out the conduct against any of the relatives of their spouse or cohabitant, indicated in subparagraphs 3) and 4) above.

The perpetrator takes advantage of their relationship of trust with the victim or their family, whether or not a kinship relationship exists.» (Emphasis supplied).

If one starts from the second paragraph (aggravated type as charged, although not contemplated in the judgment, and without prejudice to the fact that, if determined otherwise in the ordered new trial, the respective adjustments to these calculations be made), the maximum sentence of six years in prison generated the maximum limit of the prescription period (Article 31, subparagraph 1 of the Criminal Code) which, reduced by half due to the start of the process and the existence of interruptive acts, would be three years. As the acts occurred when the injured party was an adult, for the reasons already given in the immediately preceding section, the rules for non-computation until reaching the age of majority do not apply. Therefore, counting from 2013, the six years to generate an interruptive act would expire in 2019. In this matter, the complaint of [Name 003] was filed on August 8, 2014 (see folio 1); the accused was questioned on November 25, 2014 (folio 56); the summonses to the preliminary hearing were made (among others) on these dates: the first on July 14, 2015 (folio 216), and others on May 2, 2016 (folio 291), May 23, 2016 (folio 315), and June 26, 2016 (folio 332); the first scheduling for trial was made on September 6, 2017 (folio 390), the first judgment was handed down on June 7, 2019 (folios 389-555), the appeals judgment annulling the previous one is dated October 28, 2019 (folio 616), and the scheduling for the new trial dates from January 21, 2020 (folio 628). Although the foregoing are not the only hearings or schedulings, and there are others that have an interruptive effect, they are the most relevant, and the omitted ones do not alter the decision, as they are additional acts of interruption or, in other words, if the action is not prescribed with these, it would be even less so considering others that increase the count. Consequently, it is concluded that in this case, the prescription of the criminal action has not taken effect, and, for this reason and without prejudice to what has already been indicated regarding potential decriminalizations (which must be discussed, if deemed appropriate, in the constitutional court), the decision is not affected by the prescriptive issue. This means that the new trial ordered to determine the correct legal classification and the penalty must be maintained.

VII.- [Name 012], unlimited general power of attorney of Temporalidades of the Arquidiócesis of San José, by means of a brief authenticated by Attorney Vanessa Zúñiga Mora, challenges, in the first ground of their appeal, the reasoning of the judgment that found their represented party jointly and severally civilly liable. They state that this type of liability arises from neglect in the duty to choose and supervise the person entrusted with one or many acts. However, the civil plaintiff did not demonstrate that a legal link exists between the accused in the present case and Temporalidades of the Arquidiócesis of San José, so the criterion of imputation required by Costa Rican regulations is not met. They point out that the legal nature of Temporalidades of the Arquidiócesis of San José is not that of a corporation conceived under the rules of commercial law, nor one arising from a pact or constitutive statute; rather, its creation derives from Law No. 6062 of 1977, which granted legal personality to the Conferencia Episcopal of Costa Rica, as well as to each of the dioceses or ecclesiastical jurisdictions into which the national territory is divided so that the former could act within the legal system. They maintain that their represented party acts on behalf of the Catholic Church only to execute acts, contracts, incur obligations, and especially acquire property, which shall respond solely for the damages caused by virtue of the acts and contracts entered into by it; that is, it will eventually be liable for damages caused by its legal representatives, agents, or workers in the exercise of their functions. They maintain that priests do not represent or act on behalf of or on account of Temporalidades of the Arquidiócesis of San José; therefore, their personal or ecclesial acts do not compromise the assets of their represented party, which in no way should be liable for the damages caused by their actions, and this is inferred from the statements of priests [Name 078] and [Name 079] at trial, inasmuch as priests do not represent nor act in its name, although there are some who hold judicial and extrajudicial representation of the legal entity, in which case their actions could compromise its assets, but this is not the case for the accused. They consider that the court does not adequately justify why their represented party had to supervise Father [Name 001], when it is clear that there is no link whatsoever with him and his priestly ministry, nor did it have any reason to supervise his actions. In the second ground of the appeal by the third-party civilly claimed, the inadequate assessment of evidence is alleged, as they consider that the circumstance proven by the court—that the accused here received a salary from Temporalidades of the Arquidiócesis of San José—is completely erroneous. They maintain that the evidence provided by the civil plaintiff—consisting of the contribution study issued by the Caja Costarricense del Seguro Social (CCSS) in the name of [Name 001]—should have been interpreted and assessed in conjunction with other evidence, such as the legal opinion issued by the Directorate of Legal Affairs of the Ministry of Labor, Department of External Advisory, number DAJ-AE-108-09 dated May 8, 2009, visible on folios 45 to 48 of the civil compensatory action file, which mentions the agreement that exists between the CCSS and the Conferencia Episcopal of Costa Rica. They recount that such agreement was initially signed in 1994 to comply with what the Code of Canon Law establishes, i.e., that it was the Conferencia's obligation to guarantee the social assistance of priests in cases of illness, disability, and old age, and that in 2001, the contribution regime was changed so that they would not be classified as independent workers but rather be covered under the Reglamento para la Afiliación de Asegurados Voluntarios in its Article 2 (which they copy), to the extent that priests did not receive income from an employment relationship. They maintain that that contribution study cannot be interpreted and given value while ignoring the existing reality, because for the CCSS itself, priests are considered voluntary insured persons, do not generate income through an economic activity, have not been direct insured persons, and do not have their own income. They consider that if they are not salaried persons by their represented party, there is no employment relationship that generates a legal link between the two, nor one that supports indirect subjective liability. They recall that at trial, it was proven that it is the diocesan bishop, not Temporalidades of the Arquidiócesis of San José, who appoints priests to parishes and assigns them duties. Moreover, priests do not receive a salary; rather, they receive a subsidy or sum that allows them to cover their basic needs, which comes from donations or offerings made by the faithful in the different communities. Therefore, even though a document may state that their represented party is the employer of the priests, this is not the case, as it does not have the obligation to pay the corresponding contributions to the Fondo de Capitalización Laboral and the Régimen de Pensiones Obligatorias, which is required by law for those individuals or legal entities that maintain an employment relationship with their workers. For this reason, the document should have been assessed in harmony with the rest of the evidence. As the third allegation in the appeal by the third-party civilly claimed, lack of reasoning is alleged, as the civil plaintiff—despite attempting to support the joint and several liability of their principal by alluding to the fact that the reported acts occurred on properties owned by Temporalidades of the Arquidiócesis of San José—did not prove the fulfillment of the requirements that both legislation and doctrine demand for strict liability, since their represented party did not provide a place or property for criminal acts to be carried out with complete comfort and impunity, nor was the existence of any legal rule demonstrated that expressly establishes this type of liability for the spiritual activity performed by the church. Legal Opinion DAJ-AE-108-09 dated May 8, 2009, from the Ministry of Labor, concludes regarding the nonexistence of an employment relationship due to the failure to meet the essential elements for one to exist, and canon law is a source of law in this country; therefore, what is provided therein must be followed immediately. From this and from an agreement concluded in light of such a source to provide social security to priests, the existence of an employment relationship cannot be derived. They add that there are two judicial processes pending judicial resolution that will determine whether or not an employment relationship exists and, therefore, the obligation to contribute to the CCSS under a different category and not the one that has operated until today. Said processes are 12-004436-1027-CA and 15-001341-1178-LA, but currently, the existence of an employment relationship has not been determined, nor is there any link between their represented party and the accused. They consider that the arguments for a joint and several civil condemnation of Temporalidades for the moral damages suffered by the offended party, [Name 005], are not valid, and that the church's activity is not dangerous, is not classified as such, and per se does not provoke risks. They refer to Ruling No. 48-2008 of the First Chamber of the Supreme Court of Justice, which indicates that liability unrelated to fault cannot be derived from interpretations, and they state that the theory of created risk finds its support in the fourth and fifth paragraphs of Article 1048 of the Civil Code. However, this rule assigns strict liability to the operators of dangerous establishments and to those dedicated to operating means of transport, as both activities presuppose economic profit, which was also not proven by the civil plaintiff, as their represented party is a non-profit entity. They request that the decision be reversed. The arguments were reiterated, in summary, at the oral hearing. In responding to these allegations, the Office of the Civil Defense of the Victim considered that the arguments are not well-founded, as the judgment is duly reasoned because it was proven that, at the time of the acts, the civil defendant [Name 001] was a member of the clergy, serving as a parish priest during the period encompassing the acts. They state that there is also no doubt as to the causal link existing between the intentional actions of the civil defendant and the harmful result to the sexual integrity of the civil plaintiff [Name 005]. Furthermore, the Catholic Church has a particular status in the Costa Rican State, and its representative is Temporalidades of the Arquidiócesis of San José as a legal entity. They indicate that its liability derives from the absence of due supervision of the accused, who served in an ecclesiastical role, which was the duty of its hierarch. They state that the court based its decision on Articles 1045 and the third paragraph of 1048 (which they copy) of the Civil Code, i.e., it referred to an indirect or in vigilando subjective liability, which corresponds to liability for the acts of others.

Regarding the liability against Temporalidades de la Arquidiócesis de San José, it cites and partially transcribes vote number 2012-2411 of the Tribunal de Apelación de Sentencia de San José, which upholds it. It indicates that it was demonstrated that due vigilance was not exercised over the actions committed by Father [Nombre 001], since [Nombre 079], who was the Vicar General, and [Nombre 078], the Episcopal Vicar, had knowledge of said actions and tried to amend what had occurred, without concrete actions being taken, all of which implies a lack of vigilance that entails joint and several civil liability for the Church. It states that it is not true that it was proven that the accused received a salary from Temporalidades de la Arquidiócesis de San José, but rather that what is mentioned is that the civil defendant [Nombre 001] declared himself to be part of the payroll with a salary linked to Temporalidades de la Arquidiócesis de San José, for which documentary evidence was provided consisting of an accumulated salary report and a CCSS contribution study report, through which Temporalidades de la Arquidiócesis de San José was linked as the employer of the accused. This evidence was not to determine if there was an agreement with the CCSS for insurance payment, as the third civil party suggests, but to demonstrate the link between [Nombre 001] and Temporalidades de la Arquidiócesis de San José and to add further proof of the Church's liability, since [Nombre 001] declared that priests did not act in the name of or on behalf of Temporalidades de la Arquidiócesis, when, on his CCSS payroll, Temporalidades de la Arquidiócesis de San José appears as his employer. It indicates that the Church, as an institution and religious authority, provides a service to the community of parishioners, selects a priest who undergoes several years of study, accepts his ordination, and then the appointment is made. [Nombre 079] established that priests must submit pastoral reports and these are followed up by the Pastoral Vicar, all of which would evidence the existing relationship and the duties of selection and vigilance that ground joint and several liability. It concludes that, in the debate, there was proof that the defendant was a parish priest in the place where the events occurred and it was during that time that these took place. It alludes to moral damages and its legal support (articles 59 and 1045 of the Civil Code and 125 of the Penal Code) and how, in this matter, it was demonstrated and requests the rejection of the complaints. The other parties did not comment on the specific issue. The arguments, since they question from different perspectives the topic of joint and several liability, are connected and will be heard jointly, and must be rejected.

(A) Regarding criminal and civil prescription rules. In section VI.A.1 it was stated why, in this chamber's opinion, the criminal action is time-barred for one of the victims. However, such a decision does not affect the civil aspect. Firstly, because there has been an extensive legal discussion regarding the applicable regulations concerning the time limits and grounds for extinction of the civil action when, as in this case, the extinction of the criminal action to which that claim was linked has occurred. On the other hand, because, unlike the extinction of the criminal action which can be declared ex officio (article 42 subsection c) and final paragraph of the Criminal Procedural Code), the civil action’s extinction is not declarable ex officio (article 2.4 of the Civil Procedural Code) and, in this matter, no express exception in that sense has been filed, which will be elaborated upon in due course (see section VII.A). Regarding the regulatory discussion concerning the applicable legislation and the time limits to be used for the civil matter when the criminal action has been extinguished by prescription, it must be considered that article 868 of the Civil Code stipulates: “Every right and its corresponding action prescribe in ten years. This rule admits the exceptions prescribed in the following articles and others expressly established by law, when specific cases require more or less time for prescription.” The exceptions in the following articles are those indicated by numerals 869, 870, and 871 of the Civil Code which establish, respectively, a prescription of three years and one year and, in the last numeral, it refers: “Civil actions arising from a crime or quasi-crime prescribe together with the crime or quasi-crime from which they arise.” This article, in principle, was the one applicable for the prescription of the compensation action derived from a crime, and not 868 on decennial prescription. This in application of the Latin aphorism according to which special law prevails over general law (*leges generales non debent etendi at leges, quae habent suam particularem provisionem*: general laws should not be extended to cases that have their special provisions). Therefore, for a long time it was considered that the prescription of the criminal action and the compensation derived therefrom went together [see in this regard: Abdelnour Granados, Rosa María (1984). *La Responsabilidad Civil Derivada del Hecho Punible*. Editorial Juricentro, San José, pp. 167-168]. That was the position of the Third Chamber, for example, in vote number 565-F of 4:15 p.m. on December 12, 1994. However, for another sector, numeral 871 of the Civil Code was implicitly repealed by numeral 96, second paragraph, of the Penal Code, which establishes: “The extinction of the criminal action and the penalty shall not produce effects with respect to the obligation to repair the damage caused, nor shall it prevent the confiscation of the instruments of the crime,” (cfr. Zúñiga Morales, Ulises. *Código Penal anotado*. Investigaciones Jurídicas. p. 60). Therefore, the Third Chamber, in vote number 297 A- of 2:55 p.m. on July 9, 1993, made a constitutional query on the topic and the Constitutional Chamber, when resolving it, ordered:

“…in the case of a crime there is an eminently public interest, in the other (case of purely civil injury) the interest is basically private. Hence, if, even mediating that public interest in the case of a crime, the criminal action prescribes, in accordance with the provisions of article 82 of the Penal Code, the logical thing, contrary to what was expressed in the query, is that the civil action prescribes together with the former, since this is, in relation to the former, merely secondary, and therefore, it would be a contradiction if, for the principal act, which is the crime, a subject can no longer be pursued, when that interest is merely private while the other is public. Thus, if, in accordance with the criminal law itself, certain crimes prescribe in a period shorter than ten years, the legislator would act wrongly if it granted greater legal protection to the purely private interest of the party injured by the crime than to the principal public interest and extended the prescription period of the civil action, for example, to ten years, so that even when no criminal sanction could be imposed, the offended party could collect the damages and losses derived from a criminal action.” (Constitutional Chamber. Vote number 5029-93 of 2:36 p.m. on October 13, 1993).

Given this, the Third Chamber continued applying the prevalence of numeral 871 of the Civil Code for a long time: see, for example, votes number 85-99 of 9:40 a.m. on January 21, 1999, and 891-99 of 9:15 a.m. on July 19, 1999. However, the topic was retaken in the following terms: “The Constitutional Chamber of the Supreme Court of Justice ordered that upon the criminal action prescribing, the same would occur with the civil claim, which contradicts article 96, second paragraph, of the Penal Code. We affirm the foregoing because prescription is a cause of extinction of the criminal action. Furthermore, the Penal Code is a special and later law than the Civil Code, thus making it clear which legislation was applicable to the case. The problem is not whether article 871 is constitutional or not. The important thing is that there is a later and special norm that rendered it without effect. We understand then that the prescription of the criminal action, a cause of extinction of the criminal action, does not produce effects on the obligation to indemnify”. [SANABRIA ROJAS, Rafael (2000): *La Prescripción de la acción penal en la nueva legislación procesal costarricense*. Editorial Jurídica Continental. San José, p. 100]. This thesis has finally prevailed almost peacefully in the jurisprudence of recent decades, with some relevant exceptions, such as the dissenting opinion in vote number 2021-193 of the Tribunal de Apelación de Sentencia Penal de Cartago, which states: «II. Dissenting vote of Judge Fernández Mora:

In this matter, I must record my dissent with the majority in ordering a remand trial to determine civil liability, despite having determined the prescription of the criminal action for some of the offenses, since from my perspective, the civil action also prescribed concurrently with the criminal one, as provided by current legislation. Article 871 of the Civil Code states that: "Civil actions arising from a crime or quasi-crime prescribe together with the crime or quasi-crime from which they arise." In other words, since the crime being tried had prescribed long before the facts were charged, by the express decision of the legislator, the right to claim civil compensation on the part of the offended party also prescribed, so it is not possible to interpret that in this case the prescription of the civil action ran independently from the criminal action. It should be noted that I am aware of the position adopted by the Criminal Cassation Chamber starting with vote No. 20020861 of 10:00 a.m. on 08/20/2002, which holds, among other conclusions, that article 871 of the Civil Code was tacitly repealed by article 96 of the Penal Code and that the term (*sic*) for the civil action to prescribe is ten years. However, in accordance with the constitutional principle of judicial independence that protects me in my jurisdictional function, I disagree with the reasoning that the honorable Cassation Chamber has provided, since it is not true that one can speak of a tacit repeal of article 871 of the Civil Code, as will be indicated below. Nor is it accurate to establish that in all cases, the calculation of civil prescription is decennial, when a norm expressly exists that provides otherwise, as indicated by article 868 of the Civil Code: "Every right and its corresponding action prescribe in ten years. This rule admits the exceptions prescribed in the following articles and others expressly established by law, when specific cases require more or less time for prescription." (…) it should be noted that article 109 of the Penal Code refers to: "The obligations corresponding to civil reparation are extinguished by the means and in the manner determined in the Civil Code...", which would imply for the Chamber, that the legislator, with a classical approach, made a referral so that matters concerning the extinction of civil obligations are determined with a positivist approach such as that expressed in article 871 of the Civil Code. The Cassation Chamber's arguments to affirm that article 96 of the Penal Code tacitly repealed article 871 of the Civil Code overlook circumstances whose consideration is essential in light of the rules for the application of tacit repeal of a norm, such as the *lex posterior* criterion. In that sense, Josep Aguiló states: "Not every normative inconsistency leads to repeal by incompatibility. There is only repeal when the ordering of conflicting norms is carried out by applying the *lex posterior* criterion. The application of the *lex specialis* and *lex superior* criteria does not result in any repeal" (Aguiló, Josep. *La derogación en pocas palabras*. Anuario de Filosofía del Derecho XI, 1994, p. 412). From the foregoing perspective, it could not be interpreted that article 871 of the Civil Code is tacitly repealed because the Penal Code was enacted in 1970, containing the referred article 96, because through a later law the legislator decided to restore the effects of article 871 of the Civil Code. This later legal provision is none other than Law No. 4981 of November 8, 1971, which reestablishes the validity of Title IV, Book I of the 1941 Penal Code, which in its article 138 provides: "The obligations concerning civil reparation, dealt with in this chapter, are extinguished by the means and in the manner determined by the Civil Code for civil obligations," which necessarily refers to the form of extinction of the civil action (prescription) arising from a crime stipulated in article 871 of the Civil Code. (…) even in the event that the Cassation Chamber's interpretation were correct, regarding the existence of a tacit repeal due to incompatibility of norms of article 871 of the Civil Code upon the enactment of article 96 of the Penal Code, said norm would not have lost any validity, but was incompatible only for a space of just over one year (from May 4, 1970, to November 18, 1971), since, subsequently, the same legislator decided to restore it in all its effects through a new legislative enactment act. (…) In other words, since article 871 of the Civil Code is a current, effective norm that also lacks constitutional friction, it must be applied effectively by the judge. For this judge, it is clear that an exception exists to the general principle of decennial prescription to bring a claim in the civil venue. It is precisely the law that establishes that, in the case of liability derived from a crime, the civil action must prescribe together with the criminal action (…) In my opinion, it is possible to conclude that, far from the brilliant theoretical exposition made by the Cassation Chamber being correct, the legislator has not even realized that it enacted a hybrid and even incoherent regulation regarding the topic of civil liability derived from crime, and that is why, at the same time, it gives it a treatment characteristic of both a classical system and a positivist system. It involves a regulation that leaves in force rules on the extinction of the civil action which subordinate it to the extinction of the criminal action, which must be applied as it is later legislation that, rather, tacitly repeals the provisions of the second paragraph of article 96 of the Penal Code. By virtue of the foregoing, having determined in this judgment that the criminal action is time-barred, in accordance with the provisions of article 871 of the Civil Code, it is appropriate to declare the civil action time-barred to claim the damage derived from the crime investigated and to absolve the defendant of pecuniary liability.» (Bolding supplied). Regardless of the position adopted in this regard, the truth is that civil matters are governed by the device principle and since none of the parties alleged the prescription of the civil action, that declaration does not affect (for that reason, without prejudice to others, which will be analyzed in due course) the civil compensation. It has been referred to on other occasions: «Regarding the civil claim, the ruling stands, as the exception of prescription was not raised in this aspect, and thus it is considered waived, in accordance with article 851 of the Civil Code, which states:

“The waiver of prescription may be tacit, and results from not raising the exception before a final judgment…”. Prescription is not declarable ex officio, therefore, not having been alleged, the judgment on the civil aspect must stand» (Former Tribunal de Casación Penal de San José, vote number 492-F-8 of 10:20 a.m. on July 13, 1998; highlights supplied).

(B) On the need to issue a civil pronouncement despite the extinction of the criminal action: Additionally, it must be indicated that the issuance of that decision does not imply that what was resolved on civil topics must be annulled and, much less, that the parties must resort to another venue to safeguard their rights. This chamber is not unaware of what is referred to by the Third Chamber in vote number 2021-347 where, applying numeral 40 of the Criminal Procedural Code (principle of accessoriness of the civil matter), it considers that, if a dismissal due to prescription is issued before trial, it is not appropriate to rule on the civil matter, but rather it must be sent to the respective venue. However, it does not apply it for two reasons: i) in this matter, a dismissal due to prescription was not issued before the debate, but rather after it, in the sentencing appeal phase, which implies that the decision on the civil matter must continue since it cannot be done ex officio; ii) the precedent is considered incomplete since, although from a purely legal point of view it is adequate, the decision changes when higher-ranking principles, constitutional and conventional (effective judicial protection, access to justice), guaranteed to victims by international instruments and by numeral 41 of the Constitution, are incorporated, which were not made visible by said court. That is, it did not apply the normative hierarchy that causes laws to yield in value to constitutional and conventional norms and principles. Said Chamber stated, in summary, in that precedent: «III. The criterion previously held by this Chamber is varied and the jurisprudence is unified (…) The topic on which diverse application of law is claimed consists of the possibility that the trial court has to conduct the debate on the civil aspects, when a definitive dismissal for extinction of the criminal action has been previously issued. The first thing that must be pointed out is that this Chamber verifies that the two resolutions alluded to do indeed resolve the topic differently, despite presenting a similar factual scenario, which was the issuance of a definitive dismissal for prescription of the criminal action, prior to the adversarial proceeding being carried out. (…) Through pronouncement No. 2010-0105, of 11:00 a.m., on February 17, 2010, it was established that: “[…] the decision regarding the criminal action did not imply at this stage of the process that the judges could disregard it and consider it concluded, since the discussion of the civil compensatory action, legitimately exercised, was still pending in that trial venue (…)” (Signed by substitute magistrates Rafael Segura, Jaime Robleto, Sandra Zúñiga, with a dissenting vote from substitute magistrates Rosibel López and Jorge Desanti). However, upon a better weighing of the topic, the current integration of this Chamber deems it pertinent to vary the criterion that had been maintained, based on the considerations set forth below. The criminal process is designed so that the judge imparts justice when faced with the existence of illicit acts that make the imposition of a penalty or security measure necessary. Nevertheless, by legal provision, in some cases, jointly, they must also rule on the civil claims asserted by the legitimized subjects. In this regard, ordinal 37 of the Criminal Procedural Code states: “The civil action to return the object that is the subject matter of the criminal act, as well as the reparation of the damages and losses caused, may be exercised by the injured party, their heirs, their legatees, the estate, or by the beneficiary in the case of personal claims, against the perpetrators of the criminal act and participants in it and, where applicable, against the civilly liable party.” Although the civil action may be exercised within the criminal process, it is not autonomous, but rather is subordinated to the exercise of the criminal action, that is, it holds an accessory character, as established in numeral 40 of the procedural code:

“In the criminal procedure, the civil compensatory action may only be exercised while the criminal prosecution is pending. If the accused is provisionally dismissed or the procedure suspended, in accordance with the provisions of the law, the exercise of the civil action shall be suspended until the criminal prosecution continues, and the right to file the claim before the competent courts shall be preserved. An acquittal judgment shall not prevent the court from ruling on the validly exercised civil compensatory action, when appropriate.” It is important to note that the exercise of the civil action within the criminal process is optional for the interested party, who could well assert their rights in the ordinary civil venue, as provided by article 41 ibidem: “The civil action may be exercised in the criminal process, according to the rules established by this Code, or brought before the civil courts; but it may not be processed simultaneously in both jurisdictions.” This clarification is of particular importance, because, upon choosing its exercise in the criminal venue, the party accepts the existing regulation in said process, as well as its consequences. And it is that, starting from the accessoriness previously alluded to, it must be understood that there is a dependency relationship of the civil action with respect to the criminal one, such that, if the latter is not pursued or, having been pursued, there is an impediment for it to continue, the former cannot continue either, that is, the civil action can only be pursued when the criminal one is underway. Now then, starting from the premise that the prescription of criminal and civil aspects are subject to different prescription periods, it could well happen that the expiration of the former occurs, with the latter remaining subsistent. Of interest for the case, it must be indicated that, if such a situation occurs during the course of a criminal process, in which the civil action has been jointly exercised, with the case being under the knowledge of the trial court, but without the debate having been held, this court will lose the competence to rule exclusively on the civil aspects. The foregoing is due to the fact that among the different criteria for establishing competence is subject matter, according to which the civil and criminal spheres are distinguishable by their nature and independent in their regulation. Thus, article 165 of the Organic Law of the Judicial Branch provides that: “Every judge has their competence limited to the territory and the class of matters assigned to them to exercise it.” From the relationship of ordinals 96 and 96 bis, ibidem, it follows, in what is relevant, that trial courts are competent to hear the trial phase for the adjudication of crimes. It acquires competence to rule on civil aspects only by reason of the joint exercise of the actions. No norm of the legal system empowers it to hear exclusively the civil action, so it cannot arrogate prerogatives that the law does not grant it, since this would violate the principle of legality, according to which public officials may only carry out those actions that the law empowers them to do (See article 11 of the Political Constitution and 11 of the General Law of Public Administration). In this sense, what is provided in article 359 of the Criminal Procedural Code should not cause confusion, which refers to those cases where the severance of the debate or a remand solely for the determination of the penalty or civil consequences has been ordered. In these cases, the dependency relationship between the civil aspects and the criminal aspects is maintained, because the severance implies that a trial on criminal liability is first conducted, then another on the penalty and civil consequences, but all within the same process; whereas when a remand is ordered only for the civil aspects, it has as a precedent a judgment that resolved the aspects of a criminal nature. Continuing with the analysis, see that ordinal 340 of the Criminal Procedural Code provides that: “If an extinctive cause of the criminal action occurs and to verify it the holding of the debate is not necessary, the court may issue the definitive dismissal. The Public Ministry, the victim, the private prosecutor, and the civil plaintiff may file an appeal of the judgment against what was resolved.” That is, the powers of the civil plaintiff are limited to challenging what was resolved, not to continue with the exclusive exercise of the civil action. In this regard, the Chamber, in vote 2003-00034, of 8:42 a.m., on January 31, 2003, ruled stating the following: “[…] The dismissal ordered by the a quo, given that the criminal action was extinguished by prescription, inexorably closes the process by complaint and the civil claims can no longer be discussed in this venue for the simple and logical reason that the procedure concluded without the merits being discussed and resolved...” (Signed by Magistrates Daniel González, Jesús Ramírez, Rodrigo Castro, José Manuel Arroyo, and Joaquín Vargas Gené). A different case is that in which, as a product of the development of the debate, after the parties have had the possibility to discuss the facts, present evidence, and formulate claims, the extinction of the criminal action is noted, in which case the court must resolve what is appropriate regarding the legal situation of the accused person and in relation to the liability of the civil defendants. This reasoning corresponds absolutely with the provisions of article 40 *in fine* of the instrumental code: “The acquittal judgment shall not prevent the court from ruling on the validly exercised civil compensatory action, when appropriate.” The foregoing because the joint exercise of both actions was carried out up to that procedural stage and once the debate has been held, the court has the obligation to rule on all the aspects submitted to its knowledge, among them the civil claims. Note that article 361 of the Criminal Procedural Code provides that the judges must deliberate and vote regarding the issues, among them “the admissibility of the criminal action and any other incidental issue that has been deferred to this moment” (subsection a), as well as “When appropriate, matters relating to the reparation of damages and losses.” (subsection e). Based on the analysis carried out, this Chamber does not observe deficiencies in the reasoning outlined by the ad quem, but rather, on the contrary, deems that this is the correct manner in which the questioned legal aspect must be resolved. In the present case, we find that the a quo, making use of the power granted in ordinal 340 of the instrumental code, issued a definitive dismissal in writing, without holding the adversarial proceeding. However, it omitted to rule on the civil action (…) which motivated the filing of the sentence appeal by the latter office, considering that harm is caused to its client by not holding the trial on the civil aspects, which, in turn, generates the obligation for the aggrieved party to initiate a new process in the civil venue, with all the difficulties this implies. In response, the Tribunal de Apelación de Sentencia del Segundo Circuito Judicial de Guanacaste, through resolution 087-20, of 10:30 a.m. on February 28, 2020, dismissed the challenge, determining that the issuance of the definitive dismissal by the trial court prevents the civil claims from continuing to be heard within the criminal venue, due to the loss of competence. In this regard, it indicated: “In the first place, the topic must be approached from the principle of legality, thus, article 11 of the Political Constitution, states, in what is relevant, that: “public officials are simple depositaries of authority. They are obligated to fulfill the duties that the law imposes on them and cannot arrogate powers not granted to them therein…”. The foregoing refers to the principle of legality, as a limit of the “sovereign power” that the Administration holds over citizens, according to the legitimacy that the law itself gives to its actions. In that vein, as provided in article 40 of the Criminal Procedural Code, the civil claim is accessory to the criminal one, highlighting that: "the civil compensatory action may only be exercised while the criminal prosecution is pending", such that upon the second action being extinguished and given that the civil action procedurally depends on the principal one, the obligation to resolve the merits of the civil aspect will depend on whether the prescription of the criminal action is known before or during the trial. If the prescription issue is known during the debate stage, the discussion on the validity of the action can be deferred for judgment.” However, in the event that a hearing has not been scheduled and the statute of limitations (prescripción) is detected, as occurs in the specific case, the jurisdiction of the trial court to hear the civil claim is exhausted upon resolving the extinction of the criminal action, since it is impossible to arrogate a jurisdiction that, in accordance with the principle of legality, is circumscribed to the distribution made by law of the different spheres of cognizance based on criteria of subject matter, gravity or amount, territory, and degree, which in the specific case is reduced to cognizance of the criminal case (criminal action)." It further adds: "Under this line of thought, this Chamber concludes that the issue of jurisdiction, which is closely linked to that of the natural judge and constitutes a fundamental guarantee in any Rule of Law State, is seriously compromised when a definitive dismissal (sobreseimiento definitivo) is issued due to extinction of the criminal action, followed by a scheduling of trial to hear the civil claim as proposed by the appellant, since once the criminal action is extinguished, there is no legal jurisdiction to conduct a debate on the compensatory claim, as criminal prosecution is no longer pending as a consequence of the definitive dismissal issued before the trial." This Chamber considers that the analysis conducted by the ad quem court is in accordance with the law and conforms to the new position on this matter that has been adopted in this pronouncement. Based on the foregoing, since no deficiencies are observed in the challenged decision regarding the interpretation and application of the law, the appropriate course is to dismiss the appeal filed by the representative of the Office of the Civil Public Defense of the Victim. The jurisprudential criterion that this Chamber had maintained in decision 2018-00561, of 11:10 a.m. on August 17, 2018, is modified, and jurisprudence is unified to the effect that, when the criminal action is declared statute-barred (prescrita) at the trial stage without the adversarial proceeding having taken place, the civil action, being subordinate to the former, cannot succeed, given the impossibility of pursuing it autonomously, due to the lack of legal authorization for doing so." (Emphasis added). Note that the Third Chamber, nowhere in its decision on the topic, even mentions, much less delves into, the analysis of the constitutional and conventional principle (ergo, of higher rank than law) of access to justice and effective judicial protection for victims who have chosen one route (criminal) and should not have to be subjected to the bureaucracy of moving from one proceeding to another, from one court to another, begging (as if it were a power and not a right) for the recognition of compensation, with the loss of time that this entails and with the modification of rules, including those on the statute of limitations (prescripción) and its method of calculation (which, in civil matters, would not count the acts of the criminal proceeding). This principle is enshrined in Article 25.1 of the American Convention on Human Rights, in Article 41 of the Political Constitution, and in the Brasilia Rules on access to justice for persons in vulnerable conditions, and in this regard, the jurisprudence of the Inter-American Court of Human Rights has been abundant, indicating, for example: "... the Court has established that for a remedy to be effective, it is not sufficient for it to be provided for by the Constitution or the law, or for it to be formally admissible, but rather it is required that it be truly adequate to establish whether a violation of human rights has occurred and to provide what is necessary to remedy it. Those remedies that, due to the general conditions of the country or even the particular circumstances of a given case, prove illusory, cannot be considered effective. By virtue of the foregoing, the State has the responsibility not only to design and normatively enshrine an effective remedy but also to ensure the due application of said remedy by its judicial authorities" (IACHR. Case of Liakat Ali Alibux Vs. Suriname. Preliminary Objections, Merits, Reparations, and Costs. Judgment of January 30, 2014. Paragraph 116). In any case, it is reiterated that here, a debate did take place and the statute of limitations (prescripción) has not been invoked, which, in civil matters, does not operate ex officio, and therefore, for these reasons, the issue must be analyzed. (C) On the content of the decision on the merits and the classification of types of civil liability: Starting from Considerando VII of the judgment, the civil matter is referenced in the following terms that must be transcribed to determine the legal basis on which the civil claim was accepted (nexus, type of compensation, amounts, obligors, etc.): "The direct victim and injured party in this case [Name 005] filed a Civil Action (...), suing civilly [Name 001] for direct subjective liability and Temporalities of the Archdiocese of San José for indirect subjective liability (...) This Court finds the nexus between the harmful act, the civilly malicious conduct of [Name 001], and the pernicious result regarding the sexual integrity of the victim (...). It was established through the victim's statement, the moral damage suffered, evidencing from his statement that in the year two thousand five, when he was 16 years old, he experienced a series of family problems that affected his emotional stability and forced him to seek help to ensure his survival and to be able to continue his basic education studies and, in particular, prepare for the national math olympics, these being the elements that determined him to leave his home and go live with Father [Name 001], who at that time offered him sustenance and the study facilities he required, coming to love him like a father, calling him 'DAD.' The civil plaintiff stated in his declaration that the accused represented a figure of respect and admiration, not only for the help provided, but also for what he observed in him at that time. Nevertheless, against those feelings, the accused here proceeded to touch him abusively on his intimate parts on at least two occasions while they slept together, thereby harming his sexual integrity. Actions that caused him great pain and disappointment because the figure of spiritual, emotional, and economic support fell exclusively on the Civilly Demanded here, who clearly took advantage of his vulnerability and absence of paternal figures, which also meant a significant spiritual deterioration since the figure of the priesthood ceased to be well perceived by the victim, who was isolated and attacked with insults on social networks because of the accused. In addition to not having economic or other means to get away from his aggressor, which represented compensable affectations to his psychological state according to the liability established in Article 1045 of the Civil Code for malicious actions that cause harm to another. As stipulated in jurisprudence, Criminal Courts are obligated to break down and determine the amounts to which they convict, in order to avoid victims having to resort to the civil route for the estimation of damages. For this reason, the Court must accept the item of moral damage for the sum of five million colones, an amount considered to be in accordance with the victim's claim at the time of filing the lawsuit and the facts that were deemed proven by this ruling, which correspond to two crimes of sexual abuse against a minor; although the amount granted cannot compensate for the damage caused by [Name 001] to the detriment of [Name 005], the Civil Compensatory Action is considered legitimate and tenable to compensate in some way the pain and suffering caused to the Civil Plaintiff (...) Said sum is established symbolically, since this Court does not intend for said amount to resolve the pain suffered by the plaintiff. In accordance with Decree on Lawyers' and Notaries' Fees number 32493, in criminal matters with civil action, the calculation provided by Article 18 must be followed, which states that when the amount is equal to or less than twenty-five million colones, the payment of fees shall be twenty percent. Thus, twenty percent of the indicated sum is ONE MILLION COLONES, a sum that the defendant must pay the plaintiff for the concept of personal costs for the filed civil action, in addition to the amount for which he was convicted." (Cf. judgment, pages 92 and following of the pdf). This aspect of the decision is not being challenged, so the civil sentence against the accused, in his personal capacity, is firm since, additionally, this chamber finds no defect in the reasoning because the liability emerges from the proven fact and the applicable law is correct. It is worth highlighting, however, that at the beginning of the transcription, it is stated that the lawsuit against Temporalities of the Archdiocese of San José was made under the title of subjective liability for fault in choosing (culpa in eligiendo) and in supervising (culpa in vigilando), and not alleging the theory of risk or objective civil liability. Although nothing prevents, by virtue of the principle iura novit curia (which also forms part of due process: see vote number 2010-4587 of the Constitutional Chamber), a court from correctly applying the law corresponding to a case, even if not the one invoked, the foregoing is highlighted to differentiate between the types of liability, which the appellant does not do. In matters of civil liability, doctrine distinguishes two types: contractual and extracontractual. The first arises from express agreements or legal relationships. The second, from acts or omissions in social life. These can be malicious (i.e., intentional), negligent (i.e., lacking the duty of care), or stipulated by law, independent of whether there is intent or negligence or whether they are lawful or unlawful acts, as this is based on the generation of risks (for example, Article 1048 of the Civil Code) or on obtaining profits that must be borne by those who promote them (objective liability). Therefore, extracontractual civil liability can be subjective (for intent or negligence), and this can be both for one's own act or direct, and for another's act or indirect (fault in choosing or fault in supervising). The latter is provided for in Article 1048 of the Civil Code, third paragraph, which states: "He who entrusts a person with the performance of one or many acts is obligated to choose a person suitable to execute them and to supervise their execution within the limits of the diligence of a good father of a family; and if he neglects these duties, he shall be jointly and severally liable for the damages that his agent causes to a third party with an action violating the rights of another, committed with bad intention or through negligence in the performance of his duties, unless that action could not have been avoided even with the due diligence in supervising." This is different from the other type of liability, that is, objective liability which, in addition to the need for a specific legal provision (for example, in Article 1048, paragraph 5 of the Civil Code; in Article 32 of the Law for the effective protection and defense of the consumer, contained in Article 32; Article 197 of the Traffic Law, or in Articles 190 and following of the General Law of Public Administration), the criterion of imputation involves analyzing three requirements: a) the use of things that entail danger or risk; b) causing property damage; c) establishing the relationship or cause-and-effect nexus between the act and the damage. This, in turn, can be primary or sole, or joint and several. Schematically, it is set forth as follows:

The aforementioned judgment on the merits initially states that the civil plaintiff invoked indirect subjective liability for fault in supervising or in choosing, but later. However, further on, when alluding to the nexus of the third-party civil co-defendant, due to the joint and several liability invoked, it does so in the following terms: "... the lawsuit was jointly and severally filed against Temporalities of the Archdiocese of San José, considering the existence of objective liability arising from the fact that [Name 001], at the time he carried out the acts, held the position of parish priest of [Name 080] and performs the acts taking advantage of his investiture, an element that generates objective liability by reason of the accused's belonging to the church and the tasks performed by it, as well as the risks generated by its activities. In this particular case, this Court has deemed it pertinent to accept the lawsuit for joint and several liability against Temporalities of the Archdiocese of San José, filed by the Civil Plaintiff, because it concerns indirect or in vigilando subjective liability that corresponds to liability for the acts of another, that is, the conduct generating civil liability is carried out by a subject other than the one held responsible for the action, which is assumed due to the responsibility we all have to supervise the persons, animals, or things that depend on us and to be cautious in choosing whom we wish to avail ourselves of. Hence, it can be concluded that when there is a lack or insufficient supervision of persons in our charge, one incurs liability, as occurred in the case at hand. For, in the adversarial proceedings, it was evidenced through the testimonies of [Name 038] and the church's own members, Father [Name 079] and [Name 078], the insufficient supervision exercised over the actions of the civil defendant [Name 001], which were even known to the Church from before July 10, 2014, without any actions being taken to control what was happening and even to correct the events that occurred, and on the contrary, a position of silencing what it knew was adopted, protected by the doctrine of forgiveness that governs the Catholic Church, even referring, by Father [Name 079], that 'nadie divulga sus pecados' ('no one divulges their sins'), statements that evidence the church's knowledge of what was happening, regarding the actions of the civil defendant, it being evident from the adversarial proceeding that visits were made to him and he was even exposed at a meeting where several parishioners participated, all these situations being known to the highest leader of the Church himself, without concrete actions being taken regarding his responsibility as a parish priest towards the members of the Catholic community who participated in his activities, an omission that is in no way justified, since, at the time what happened was disclosed through the media, clear and immediate actions were taken aimed at not incurring greater risks that could have been opportunely resolved by those responsible for supervising the acts of the accused priest, especially considering that the proven acts occurred within the very facilities of the Church of the Guidos. In view of such omissions in their duty of supervision, this Court considers it legitimate to sentence Temporalities of the Archdiocese of San José to pay the amounts granted to the plaintiff jointly and severally. By virtue of the fact that the Court determined, in accordance with the testimonies of Father [Name 079], that the defendant is created with the intention of being able to manage assets in the name of the Church, the defendant appearing as part of the Church's activity on an economic level, it being clear that they function as an Economic Interest Group in which the different activities are registered in an organized and functional manner, without it being possible to eliminate the existing nexus between them, which is even proven by the fact that on the date of the acts, the civil defendant [Name 001] received a salary from the Caja payroll, linked to Temporalities of the Archdiocese of San José, therefore, the exception of lack of passive legitimacy (falta de legitimación pasiva) must be rejected and Temporalities of the Archdiocese of San José must be held as a civil defendant, having to assume civil liability jointly and severally." (Cf. judgment, civil considerando; emphasis added). From what has been transcribed, it can be seen that the judgment uses interchangeably the terms objective liability and subjective liability for fault in choosing or in supervising, without them being synonymous. The appellant does the same. However, the content of the decision is emphatic in attributing joint and several liability to the Catholic Church for the lack of supervision of the priest, an aspect that is important to establish from now on, to the extent that it coincides with the approach of the civil plaintiff's party and because there is no express normative provision that stipulates the objective liability (for created risk or profit obtained) of either the Catholic Church in general or Temporalities of the Archdiocese of San José in particular. (D) On the passive legitimacy of the civilly liable third party. Now, the bulk of the appellant's argument focuses, firstly, on establishing that Temporalities of the Archdiocese of San José is not equivalent to the Catholic Church and that said legal entity has no relationship with the accused insofar as he acts as a priest. That is, the passive legitimacy of her represented party to face the joint and several compensation that was set is challenged. To address the issue, it is appropriate to outline the legal particularities and background surrounding the matter. (D.1) Applicable legal framework. Costa Rica is one of the few countries in the world that, in its constitutional text, establishes a link between the State and a religion, in this case, the Catholic one, per Article 75. By virtue of this link (which does not date to the current Constitution of 1949 but extends backwards in time), diplomatic relations have existed with the Vatican, and a Concordat was signed on October 7, 1852, ratified by Law No. 24 of December 2, 1852, and repealed less than two years later, through Law No. 45 of July 28, 1884, a product of the liberal and anticlerical ideas of the era. This context makes it easier to understand the issuance of Law No. 6062 of July 18, 1977, which provides: "Article 1.- Legal status (personería jurídica) is hereby granted to the National Episcopal Conference of Costa Rica (Conferencia Episcopal Nacional de Costa Rica), as well as to each of the Dioceses or Ecclesiastical Jurisdictions into which the national territory is divided, currently those of San José, Alajuela, Tilarán, San Isidro de El General, and Limón, and to those that may be erected in the future. Article 2.- Both the Conference and each of the Dioceses shall have full legal capacity to carry out all kinds of acts and contracts within the framework of the laws in force. Article 3.- The representative of the Conference shall be its President, elected by the members of the same Conference, in accordance with its own statutes, and the representative of each Diocese shall be its corresponding diocesan bishop. All of them shall have the powers determined by Article one thousand two hundred fifty-three of the Civil Code, without limitations of any kind. Those representatives shall be elected for an indefinite term, and their appointment may be revoked at any time by whoever made it. Such representatives must be registered in the Persons Section of the Public Registry, with formal protocolization of the agreement of their appointment. Article 4.- Likewise, both the Conference and each of the Dioceses of the country may constitute all kinds of agents with the powers they deem necessary to confer upon them in the act of their appointment. Article 5.- For legal purposes, the Conference must keep a minute book, which shall be legalized by the Books Department of the General Directorate of Direct Taxation of the Ministry of Finance. Article 6.- It shall be effective upon its publication. Transitory: The powers of attorney currently registered to represent the National Episcopal Conference of Costa Rica, or the different Dioceses established under Executive Decree number sixteen of May seven, nineteen hundred seventy, shall continue to have legal effects as long as they are not modified or revoked." (bold type added). Note that, without being a state entity or a commercial or other nature entity (association, foundation, etc.), the cited regulation endowed it with legal status, under the denomination of National Episcopal Conference of Costa Rica, and did the same for each of the dioceses or territories into which the ecclesiastical jurisdiction in a country is divided. In addition to this, the law was regulated by the Executive Branch, and in the Regulation Developing the Scope of the law that grants legal status to the Episcopal Conference and Ecclesiastical Dioceses, indicating the situation of the bodies that make up the Catholic Church, Executive Decree number 32370, in force since May 19, 2005, establishes:

"Considering:

1º- That through Law No. 6062, legal status was granted to the National Episcopal Conference of Costa Rica, as well as to each of the Dioceses or Ecclesiastical Jurisdictions, conferring upon them full legal capacity for this purpose.

2º- That although Law 6062 granted legal status to the National Episcopal Conference of Costa Rica, as well as to each of the Dioceses or Ecclesiastical Jurisdictions into which the National territory is divided, it neither provided for, nor regulated, the same for the rest of the internal organization of the Catholic Church in the country, nor its projection into the national legal system.

3º- That it is the function of the Ministry of Foreign Affairs and Worship, in accordance with Executive Decree No. 19561-RE, of March 9, 1990, 'to promote harmony between civil and ecclesiastical authorities' and 'to protect the free exercise of the Catholic faith and of any other that does not oppose universal morality and good customs'; 4º- That Canon 369 of the Code of Canon Law indicates: 'A diocese is a portion of the people of God whose pastoral care is entrusted to the Bishop with the cooperation of the presbyterate, so that, united to its pastor and gathered by him in the Holy Spirit through the Gospel and the Eucharist, it constitutes a particular Church, in which the one, holy, catholic, and apostolic Church of Christ is truly present and operative,' 5º- That also Canon 447 of the Code of Canon Law states that: 'The Episcopal Conference, an institution of a permanent nature, is the assembly of the Bishops of a nation or determined territory, who jointly exercise some pastoral functions for the faithful of their territory to promote, according to the norm of law, the greater good that the church provides to people, especially through forms and modes of apostolate suitably adapted to the peculiar circumstances of time and place.' 6º- That the Costa Rican State recognizes that the structure and organization of the Catholic Church is very complex and intends to achieve harmony between the merely material and the spiritual.

7º- That the Office of the Attorney General of the Republic, in pronouncement OJ-076-1999, of June 23, 1999, stated regarding its nature that it is a sui generis moral person and that 'Within the civil order, the Catholic Church and the temporalities, due to their special nature, do not constitute civil societies or associations, however, they are recognized as a legal entity through the universal and international recognition that the Church enjoys. That recognition is materialized in Costa Rica, through a series of laws and decrees that originated the existence of a legal entity called "Temporalities of the Church"; through which the Catholic Church would act,' 8º- That the Ministry of Foreign Affairs and Worship must also 'regulate the legal status of religious entities, without affecting their autonomy, internal organization, and the rights that correspond to them for the free exercise of their activities,' therefore, in order to complete the legal provisions to harmonize them with the norms and rules governing the Catholic Church. Therefore, THEY DECREE:

Article 1.- This Regulation aims to develop the scope of Law No. 6062, of July 8, 1977, indicating the legal situation of all the bodies that make up the Catholic Church, respecting ecclesiastical regulations and the free exercise of its activities, both in the spiritual and temporal order.

Article 2.- For the purposes of this Regulation, the following are considered part of the Catholic Church in Costa Rica:

1. Canonical Legal Persons: National Episcopal Conference, Dioceses or particular Churches, Cathedral Church, Parishes and Quasi-Parishes, Rectoral Churches, Chaplaincies, and Any other public legal person of the Church formed according to the Code of Canon Law of the Catholic Church.

2. Hierarchy of the Church: Bishops (whether diocesan, auxiliary or coadjutor, and emeritus), Presbyters, and Deacons.

3. Other groups or of Consecrated Life: Religious Institutes, Secular Institutes, Societies of Apostolic Life.

Article 3.- The internal law of the Catholic Church is understood as the set of provisions and norms governing the internal organization and activities of said Church, which include: the Code of Canon Law, Universal Ecclesiastical Law, and Particular Ecclesiastical Law. All of them shall have the value and scope that the Catholic Church itself confers upon them and shall produce legal effects for the subjects and relationships regulated by them.

Article 4.- The National Episcopal Conference of Costa Rica, as well as each of the dioceses, is recognized with the authority to issue the guidelines, policies, and regulations that will govern the bodies and institutions that integrate them, respectively, as well as the definition of their competencies and functional structure.

Article 5.- For the fulfillment of its purposes, the Catholic Church may adopt the institutional organization provided for in its internal regulations, as well as use the legal forms authorized in common legislation.

Article 6.- It shall be effective upon its publication." (Emphasis added).

This Regulation is relevant since, in the first place, it establishes a link between the Catholic Church, the Episcopal Conference, the dioceses, the parishes, the bishops, and the presbyters, interconnecting them all to a single entity and recognizing the complex nature of the organization. In the second place, it legally recognizes, with civil and national effects, the value and scope that the internal religious provisions specifically establish in Ecclesiastical Law (universal and particular) and the Code of Canon Law. In this latter normative body, these canons are located: "391 §1. It is for the diocesan Bishop to govern the particular church entrusted to him with legislative, executive, and judicial power, according to the norm of law. §2. The Bishop exercises legislative power personally; executive power he exercises either personally or through Vicars general or episcopal, in accordance with the norm of law; judicial power he exercises both personally and through a Judicial Vicar and judges, in accordance with the norm of law. 392 § 1. Since he is bound to defend the unity of the universal Church, the Bishop must promote the discipline that is common to the whole Church, and therefore insist upon the observance of all ecclesiastical laws. § 2. He is to exercise vigilance so that abuses do not creep into ecclesiastical discipline, especially regarding the ministry of the word, the celebration of the sacraments and sacramentals, the worship of God and of the Saints, and the administration of goods. 393 The diocesan Bishop represents the diocese in all juridical affairs of the same (...) 448 § 1. As a general rule, the Episcopal Conference comprises the prelates of all the particular churches of the same nation, (...) 449 §1. It is for the supreme authority of the Church alone, after having heard the interested Bishops, to erect, suppress, or change Episcopal Conferences. § 2. An Episcopal Conference lawfully erected has juridical personality by virtue of the law itself. 450 § 1. By virtue of the law itself, all diocesan Bishops of the territory and those equivalent to them in law, as well as coadjutor Bishops, auxiliary Bishops, and other titular Bishops who, by mandate of the Holy See or of the Episcopal Conference, perform a special function in the same territory, belong to the Episcopal Conference; Ordinaries of another rite may also be invited, but only with a consultative vote, unless the statutes of the Episcopal Conference decree otherwise (...) 451 Each Episcopal Conference is to draw up its own statutes, to be reviewed by the Apostolic See, in which, among other things, norms are to be established for the plenary meetings of the Conference, the permanent council of Bishops, and the general secretariat of the Conference, and other offices and commissions are also to be constituted which, in the judgment of the Conference, may more effectively contribute to achieving its purpose." 515 §1 A parish is a certain community of the Christian faithful constituted on a stable basis within the particular Church, whose pastoral care, under the authority of the diocesan Bishop, is entrusted to a parish priest (párroco), as its proper pastor. §2. It is the exclusive prerogative of the diocesan Bishop to erect, suppress, or alter parishes, but he should not erect, suppress, or notably alter them without having heard the council of priests (consejo presbiteral). § 3. A legitimately erected parish possesses juridic personality by virtue of the law itself (…) 523 (…) the provision of the office of parish priest is the responsibility of the diocesan Bishop, by means of free conferral, unless someone enjoys the right of presentation or election. 524 The diocesan Bishop must entrust the vacant parish to the one whom, after weighing all the circumstances, he considers suitable to fulfill the parochial care (cura parroquial) in it, setting aside any partiality of persons; to judge suitability, he should hear the archpriest (arcipreste) and conduct the appropriate investigations, seeking the opinion, if the case warrants it, of some priests and lay Christian faithful.” From the foregoing, it is fitting to highlight, then, the equivalence (partial, though minimally necessary for our purposes) made there between the institutions termed the local Catholic Church, Episcopal Conference (Conferencia Episcopal), Bishops (Obispos) and Priests (Presbíteros) and the level of obedience and dependence that the latter have with respect to the former, as well as that the cited canons grant duties of selection and supervision to the bishops with respect to parish priests who must possess the status of priests (presbíteros) to exercise their function and recognize the legal personhood of both in representation of the Catholic Church within the scope of their competencies. This is relevant, therefore, both to address the appellant's arguments regarding the different legal names and to derive, legally, the duty of selection and supervision established by the civil law originally cited.

In a similar vein, the Office of the Attorney General of the Republic (Procuraduría General de la República), in issuing Opinion No. 81 of April 13, 2011, in which it analyzed the legal regime of the Catholic Church and its various bodies in Costa Rica, referred to the scope of the obligations in the following terms: «5-. The Episcopal Conference is a collegial body, composed of the Bishops of a Nation, organized to exercise pastoral functions for the faithful of that Nation, acting essentially through forms of the apostolate. That organization is governed by Canon Law and the statutes it adopts, which are ultimately approved by the Apostolic See. 6-. The juridic personality of the Episcopal Conference is granted by canon 449.2 of the Code of Canon Law and in the Costa Rican case has been, in addition, recognized by Law No. 6062 of July 18, 1977, developed by Decreto Ejecutivo No. 32370 of May 2, 2005. A norm that expressly recognizes that ecclesiastical persons are “canonical juridic persons”, article 2. Juridic personality that is different from that of a private organization.» To reach these conclusions, it relied on the following reasoning: «…the Episcopal Conference, we find that its origin lies in Canon Law. According to canon 447, “it is the assembly of the Bishops of a specific nation or territory, who jointly exercise some pastoral functions for the faithful of their territory, to promote according to the norm of law the greater good which the Church offers to humanity, especially through forms and methods of apostolate suitably adapted to the particular circumstances of time and place”. According to which this collegial body has pastoral functions and its purpose is the promotion of the Church through the apostolate. Erecting, suppressing, or altering an Episcopal Conference is the competence of the supreme authority of the Church, canon 449, paragraph 1. The Conference is governed by its own statutes, which are reviewed by the Apostolic See or Holy See, canon 451. It is these statutes that regulate the collegial body and the possibility of constituting commissions and other bodies, including matters concerning its governance (president, vice-president, general secretary). The general decrees that the Conference issues are subject to the review of the Apostolic See for their validity. These provisions reaffirm that one is not dealing with a regulation of internal law. The juridic personality of the Conference arises from Canon Law itself, as provided in canon 449.2. This does not exclude that national law may grant it recognition. Such is the case of the provision in Law No. 6062 of July 18, 1977, which grants legal personhood to the Conference and to the Ecclesiastical Dioceses. According to said Law, legal personhood is granted both to the Conference and to each of the Ecclesiastical Dioceses or Jurisdictions into which the national territory is divided. In reality, if we consider that what is attributed allows both the Conference and each Diocese to have juridical capacity to carry out any kind of acts and contracts within the Costa Rican legal system, article 2 of the Law, it should be considered that what the law attributes is the juridic personality to the Conference. The law establishes that the representative of the Conference shall be elected according to the statutes and shall have the powers determined by article 1253 of the Civil Code, without limitations of any kind. Decreto Ejecutivo No. 32370 of May 2, 2005, Regulation Developing the Scope of the Law that Grants Legal Personhood to the Episcopal Conference and Ecclesiastical Dioceses indicating the situation of the bodies that comprise the Catholic Church, stems from the fact that the Law has granted juridic personality to the Conference and develops that personality based on the recognition of what is established in Canon Law . Therefore, the regulation it encompasses respects “ecclesiastical norms and the free exercise of its activities, both in the spiritual and in the temporal order”, article 1. In that sense, the Episcopal Conference, the dioceses or particular churches, the parishes and quasi-parishes, the Cathedral Church, the rectories and chaplaincies are considered “canonical juridic persons”, article 2. Therefore, this is not a personality of Private Law. Furthermore, what is recognized as the internal law of the Catholic Church, article 3, is the set of provisions and norms that govern the internal organization and activities of said Church, which include: the Code of Canon Law, Universal Ecclesiastical Law, and Particular Ecclesiastical Law. Provisions that govern the subjects and relations proper to the Catholic Church . However, it is authorized in article 5 to: “Artículo 5º—For the fulfillment of its purposes, the Catholic Church may adopt the institutional organization provided for in its internal regulations, as well as utilize the juridical forms authorized in common legislation”. It follows from the foregoing that the national legal system has recognized that the juridic personality of the Episcopal Conference is governed by special provisions, which are not those of Civil Law. This condition was noted by the Office of the Attorney General of the Republic in Legal Opinion OJ-076-1999 of June 23, 1999, in which it indicated, referring generally to the Catholic Church: “Within the civil legal system, the Catholic Church and the temporalities, due to their special nature, do not constitute civil partnerships or associations; however, they are recognized as a juridic person through the universal and international recognition enjoyed by the Church. That recognition is materialized in Costa Rica, through a series of laws and decrees that originated the existence of a juridical entity called \"Temporalities of the Church\" through which the Catholic Church shall act”.» (Emphasis added). Note how this criterion of the state legal body equates, for purposes of general representation and within the scope of their competencies, the different denominations (Temporalidades de la Arquidiócesis de San José, Conferencia Episcopal, Catholic Church, etc.) and, according to the foregoing, endows them with “civil” juridic personality (since it recognizes the canonical one).

In a similar sense, BRENES ÁLVAREZ (Pedro) rules. The Legal Status of the Catholic Church in Costa Rica. Universidad de Costa Rica. Graduation thesis to obtain a Bachelor of Laws degree, 1976. Although it was established there that the remuneration of priests came from the faithful, was not salarial, and, consequently, they were not workers and there was no labor relationship between them and the Episcopal Conference, it did so for the purposes of article 75 of the Worker Protection Law, a topic that lacks importance here and that, incidentally, also does not bind this authority, given the principle of constitutional independence, with constitutional and conventional rank. Consequently, the fact that jurisdictional processes exist in which it is discussed whether a priest is or is not an employee of said Conference for other purposes (payment of social security contributions) does not generate lis pendens, prejudiciality, or res judicata, nor does it obligate this chamber to adhere to said criterion. For all of the foregoing, the argument of the appellant that its represented party lacks standing to intervene in the proceeding is incorrect, since, by being the hierarchical superior of the priest, who performed parish functions, and the priest being chosen by the bishop, the bishop and the Episcopal Conference, the Dioceses, or the Temporalities (figures all with canonical juridic personality recognized in civil law) are liable for the failure to observe the duties of supervision or selection that were their responsibility.

(D.2) Doctrine of piercing the corporate veil. In any case, what the representatives of the civil defendant intend is to interpose the veil of a juridic person (Temporalidades de la Arquidiócesis de San José, Catholic Church, Conferencia Episcopal, Obispos, etc.) in order not to be held liable (but to obtain the benefits, viewed civilly and not from the spiritual plane, such as representation, obedience, etc.) for the natural persons (priests, presbyters, parish priests, etc.) through whom they act. For this reason, our legislation authorizes the piercing of the corporate veil, so that whoever intends to benefit unduly from it does not achieve their purpose. If this is the case with respect to formally constituted civil juridic persons, it applies, with parity of reason, with respect to the organization of the Catholic Church, as authorized by articles 20, 21 and 22 of the Civil Code, which establish: “Article 20: Acts performed under the cover of the text of a norm, which pursue a result prohibited by the legal system, or contrary to it, are considered executed in fraud of law and shall not impede the proper application of the norm that they sought to evade. Article 21: Rights must be exercised in accordance with the requirements of good faith. Article 22: The law does not protect the abuse of right or its antisocial exercise. Every act or omission in a contract, which by the intention of its author, by its object, or by the circumstances in which it is performed, manifestly exceeds the normal limits of the exercise of a right, causing damage to third parties or to the counterparty, shall give rise to the corresponding compensation and the adoption of judicial or administrative measures that prevent the persistence of the abuse”. This concerns the theory of piercing the corporate veil and “Consists in the judge's ability to determine who lies behind the juridic person. It seeks to resolve situations of juridical significance not through the juridic person but through the real subjects who effectively act under that appearance. Basically, it has been used in contractual breaches, acts of unfair competition, fraud of law—particularly in tax matters—, fraudulent damage to the detriment of a third party, and in bankruptcies of corporations (...) It is observed basically in the treatment at the jurisprudential level in labor matters when resolving the reality of the contract and determining the true employer-employee relationship. At the legislative level in tax law, it is used particularly to determine the obligor and avoid the splitting of capital. In the recent Consumer Protection and Defense Law, it allows the consumer to know the producer”. Sala Primera of the Supreme Court of Justice, Vote No. 128-F of 14:40 hours on December 16, 1998 (emphasis added). Note that if, for all purposes, the Catholic Church, the Temporalidades de la Arquidiócesis de San José, the Conferencia Episcopal, or the bishops use their parish priests to be represented, they can hardly claim that those denominations lack liability for the damages that these parish priests cause to third parties.

(D.3) Precedents. In addition to the foregoing, although without references to those provisions, other courts have already established the liability that falls upon Temporalidades de la Arquidiócesis de San José (name under which said organization operates, for civil purposes, in “material” matters). See how the Sala Tercera, through vote No. 2013-371 (J.M. Arroyo, C. Chinchilla, M. Pereira, R. Sanabria and J. Ramírez) declared inadmissible, as untimely, the cassation appeal filed against the vote of the Criminal Sentence Appeals Tribunal of the Second Judicial Circuit of San José No. 2012-2411 (L. Murillo, I. Estrada and H. Ulloa). In the latter, a case with similar characteristics was heard (sexual, in which Temporalidades de la Arquidiócesis de San José was jointly and severally condemned as a result of non-contractual civil liability). Due to the similarity of circumstances and because the arguments set forth are shared by this chamber, to avoid reiteration, said precedent is quoted, warning that the transcription is extensive but necessary, given the controversial nature of the topic: «ii) Nature of the ecclesial function and its significance on the social plane: Since its origins, the Catholic Church has had an evangelizing and guiding function in social ethics that has been maintained through the centuries. It is clear that the Church has been an institution with great presence (…) whose activity on the political and social planes has gone hand in hand with state activity, to the point that at some time there has been talk of a binomial between Church and State. Even though the Costa Rican State has opted for a tolerant model regarding freedom of worship allowing citizens to choose and profess other beliefs, the truth is that it also declares the “Apostolic Roman Catholic Religion” as the religion of the State, a provision that has constitutional roots (Article 75 of the Political Constitution). So, the activity of the Church transcends into the plane of social morality to the extent that, in the popular conception of the faithful, the Church exercises not only a guiding mission, but also involves itself in an exemplary duty for society. Priests and persons who exercise some ecclesial function that implies an interpersonal relationship, such as Ministers of the Eucharist or Catechesis and, any other educational work of religious and doctrinal content, must fulfill a sacred duty of ethical conduct and a function that transcends behavior in the sense that it is not only on the purely individual plane, but that they must become living examples of the morality that the same Church, through the centuries and since its foundation, has maintained and preached. iii) Regarding the joint and several civil liability of the church: The Church, as indicated, performs a service to the community of its faithful, a service in which it assumes a certain position before the people it congregates, due to the very commitment to develop its evangelizing mission, its social action, and in which it incorporates faithful to delegate some ecclesial functions to them, a selection that goes through the judgment of the priest, the maximum representative in the community, of the organizational structure of the Catholic Church and of the Archdiocese to which he belongs. Although it is true that religious practice is, in essence, free and no one is obligated to participate in or attend ceremonies and religious services, when this is done because the faith is professed and practiced, one accepts the structure and organization of the Church and trusts in the priest's decisions as such, some of which, even, he takes in association with community members. Thus, if for the proper development of the service it provides and the organization of its activities, the priest, but generally the Church, selects laypersons or parishioners to assist in some tasks specific to the very scope of the Church's activities, whoever selects them and whoever hierarchically presides over that structure of delegations, is liable with its patrimony for the damages caused by the designated and delegated persons, in fulfilling such tasks, taking advantage of the opportunities that this selection, of which they have been the object, presents to them, which ordinary parishioners do not have, precisely because such selection stems from the priest's criteria and those established by the Diocese or Archdiocese to which he belongs, all these activities being part of the development of the service provided by the Catholic Church. As in the case of educators in general, ecclesiastical authorities have liability precisely because of that delegation that exists from a superior authority to a third party with whom a relationship of trust exists, for the fulfillment of obligations that in themselves imply an interpersonal relationship, of service to the Church as an Institution and that are functions closely related to the Magisterium of the Church (including figures who exercise an ecclesial function in general) and, therefore, find meaning only within it, as part of the development of its function in society and the community of the faithful. In certain spheres, such as pastoral care, for example, special emphasis must be placed on the fact that beyond the relationship of subordination between the agent who delegates and the direct active subject of the harmful act, what is at stake is that—independently of the subordination—the obligation of special prudence in selecting and supervising does exist, since a negligence in such precautions entails the production or the risk of damage, and with it, a violation of the trust that the historical social position of the ecclesial entails for the faithful. In other words, an element of special relevance is the credibility that prevails or should have prevailed on the part of the passive subject of the damage or abuse and the religious institution, especially when it is the Church itself that welcomes minors into its midst, for the purpose of performing functions within the liturgy itself or, indeed, attending catechesis courses in general. In conclusion, the existence of an inherent joint and several civil liability can be established for the conduct of those who, by their position before the community, hold positions of guidance, whether in the educational sphere, whether in the ecclesial and catechetical order. It is central that such officials and guides must observe greater judgment and take all precautions that provide security that, in delegating their delicate teaching functions and functions of moral and religious formation, they do not create a situation in which the rights of the students and the faithful are not duly guaranteed. This is true, and it is so with greater emphasis, when dealing with persons who, due to their status as minors, are especially vulnerable, hence the activity in itself is already risky for a minor in light of the interrelationship that exists between adults who are considered figures of authority, exemplary, and trustworthy, and minors who wish to profess their faith through religious activities directed and entrusted by such figures. iv.- Of the specific case: It is necessary to transcribe the reasons that the Tribunal set forth in the ruling, and on which it grounds the civil liability of the Temporalidades de la Arquidiócesis: “Regarding the civil liability of Temporalidades Arquidiócesis de San José, which is the juridic person that represents the Catholic Church, its liability derives from the absence of due supervision of the defendant who was performing a role in ecclesial service, a duty that rested with the hierarch of the church (…) It is clear that the civil defendant A is not a remunerated employee of the church, juridically represented by Temporalidades Arquidiócesis de San José, since throughout the trial the witnesses connected with the exercise of the Ministry of the Eucharist or pastoral ministry informed the Tribunal that the position is meritorious and voluntary, the selection is made by the parish priest based on inquiries he makes to the parishioners and his own observation of the social conduct of the person interested in assuming the function, and that after the selection is made the future Minister receives training and assumes a commitment of a spiritual nature to the Catholic Church and that this commitment is renewed every three years, by the priest who has the power to dismiss anyone he does not consider worthy of the position. However, the absence of remuneration does not release the Church as a juridic person from its responsibility to exercise due supervision over these persons who play a role in the function of evangelization, because these Ministers have contact with the parishioners who attend church or who open the doors of their homes to receive communion, on the understanding that the Ministers of the Eucharist have the backing of the Church (…) the absence of the expected zeal from its hierarchy is evident, thus incurring culpa in vigilando which in this case had a harmful consequence for the civil plaintiff (…) must be assumed jointly and severally by the Catholic Church represented by Temporalidades Arquidiócesis de San José (…) As already indicated, the Church as an Institution and as a religious authority, provides a service before the community of parishioners, which in this case turned out to be a propitious scenario for two determining facts to converge: first, an inadequate selection of a person who was not suitable to perform within the canons of service of the Church, and second: a lack of supervision of what those persons—by their distinct position from the rest of the parishioners, regarding access to and knowledge of the handling of the places, ornaments and other objects and arrangements necessary for the different celebrations—, were obligated to do within that framework, which caused abusive sexual acts to be committed to the detriment of the minor, within the temple, in an enclosure to which not all people have common or easy access, an act committed by a parishioner who held a special position, by delegation and to the detriment of a girl who was also beginning tasks as a committed young layperson, that is, two persons selected by the maximum local representative of the Church and in the performance of their proper functions in the Church. The intent (dolo) with which the accused acted is proven and, as the norm contains a reversal of the burden of proof, the only way to exclude liability is to demonstrate that the action could not have been avoided even with the due diligence of supervising or selecting, which throughout the adversarial process and not even with the evidence received in this venue, could be established. It was held as true, however, that when delegating functions, the priest, representative of the Church, did not select (in eligendo) or control (in vigilando) adequately, and on the part of those in charge, the tasks entrusted to the accused. Those tasks of course did not authorize or include the sexual abuse of minors, but they occurred precisely because of the given conditions and the opportunity for interaction thanks to the performance of such functions, even using the moral authority that these functions gave them and the position of authority before a vulnerable person, such as a minor who was taking her first steps in the service, precisely, of the Church. The paradox is precisely that victim and victimizer were in that condition, by the selection that a member of the structure of the Church, Arquidiócesis de San José, had made of them, which makes even clearer the attribution of the damage caused, to the patrimony of what stands as the legal and patrimonial head, speaking in those terms, of such organization, in this case, the Temporalidades de la Iglesia. (…) Not only does article 1048.3 of the Civil Code support this joint and several civil liability for it intimately links culpa in vigilando with culpa in eligendo, but also article 106 subsection 3 of the Penal Code when it provides: “The action of participants in a criminal act is joint and several, regarding civil liability. Likewise jointly and severally obligated with the perpetrators of the criminal act, to pay damages and losses, are: …The natural and juridic persons owners of establishments of any nature, in which a criminal act is committed by their administrators, employees, and other workers in their service”, a provision in which undoubtedly and with much more reason the Church is included, not only due to that relationship that exists between the Church as a juridic person and a dependent who acts in its service, as the figure of the Minister of Communion turns out to be, but because in the catechetical order, the trust deposited in all its representatives by society prevails and has specific weight, hence the reasoning given by the Tribunal to grant the civil compensatory action is not only in accordance with the legislation that regulates non-contractual civil liability, but also, according to the considerations set forth, the Church is an entity that must answer civilly, so the defense of lack of passive standing (legitimación ad causam pasiva) could not prosper.» (Some of the emphasis is added; others inherent to the original text).

From the entire picture described above, it is deduced, then, that when the judgment on the merits analyzes indicators such as: (i) the function that the defendant held through which the contact with the victim occurred (priest, parish priest, in whose functional exercise he provided care for his parishioners, including the affected person); (ii) the site where the events took place (priest's house, casa cural); (iii) the framework of tasks performed by the complainant (assigned by the defendant as part of the retribution for the help provided by his represented party); (iv) the bond between the priest and the bishop and the civil defendant and their obligation to appoint the priest based on suitability for the position and ensure that he performed it in the same manner; and (v) the legal link that, even in payroll records of the C.C.S.S., is described between the jointly liable civil defendant and the defendant, it does nothing more than scrutinize that underlying relationship that gave rise to the obligation to compensate. Note that this last aspect is one more indicator, not the only one, and it does not intend, as the appellant seems to understand it, to establish a labor relationship, but only a juridical bond of dependence. In this exercise, this chamber does not observe any irregularity, either in the facts or evidentiary derivation, or in the juridical classification or improper application of norms. Therefore, the bond between the jointly liable civil defendant and the defendant, and between the defendant and the affected person, was proven; the harmful event was accredited, and the obligation to compensate arises from the norms initially cited that stipulate, in the hierarch, the obligation to select and ensure the faithful execution of what is commanded. That is, the reference is to a culpa in eligendo or in vigilando (which is indeed fault, albeit for the act of a third party, so Vote 48-2008 of the Sala Primera cited by the appellant does not apply), although the lower court (a quo) referred, partially, to something else, so it is unnecessary to allude to issues of strict liability (responsabilidad objetiva), to issues of risk or profit. By all that has been set forth, as no defect is observed in the decision, the allegations must be rejected.

POR TANTO:

(1) The appeals filed by the priest [Name 012], legal representative of Temporalidades de la Arquidiócesis de San José, and by Attorney Fernando Arias Zúñiga, in his capacity as public defender of the accused, are dismissed. (2) On the Court's own motion (de oficio), the conviction judgment against [Name 001] for two offenses of simple sexual abuse against a minor to the detriment of [Name 005] is revoked, for which the total sentence of six years of imprisonment was imposed (three for each offense), and, in its place, an acquittal is ordered due to the extinction of the criminal action by the statute of limitations (prescripción), the aforementioned sanction being set aside. (3) The appeal filed by Attorney Claudia Villafuerte Orellana, representing the Public Prosecutor's Office (Ministerio Público), is partially granted. Consequently, the contested judgment is partially annulled regarding the event proven during 2013 to the detriment of [Name 003], solely regarding its legal classification and the penalty, and, on both issues, the case is remanded (reenvío) so that the trial court determines whether the offense constitutes simple or aggravated sexual abuse against an adult (persona mayor de edad) and the corresponding punitive amount.

As for the rest (the determination of the act to the detriment of [Nombre 003], the declaration of civil liability, the precautionary measures (medidas cautelares), and costs), the fiscal appeal is rejected and the judgment remains intact.

NOTIFY.

Rosaura Chinchilla Calderón Patricia Vargas González Kathya Jiménez Fernández Appellate judges of criminal judgment Case file: 14-002617-0994-PE (7) Defendant: [Nombre 001] Victim: Persons of legal age Crime: Violación and another LQUIROSG Case file: 14-002617-0994-PE (7) - p. 2 Although this chamber, unanimously, considers that the latest majority vote of the Constitutional Chamber is not in accordance with the law (because it disregarded the principle of progressivity of human rights, by making the situation of the person twice acquitted at trial more burdensome, and because it affected the principle of legal certainty derived from the change in the appeals system and from the fact that a substantive vote cannot be modified through a clarification motion), it is clear that we cannot depart from it, as it has been expressly and clearly reiterated by that majority of the constitutional magistracy and there is no higher-ranking parameter (such as a human rights treaty or a vote of an international court that expressly regulates the matter) to which reference can be made, for which reason, in consideration of the provisions of Article 13 of the Law of Constitutional Jurisdiction, said precedent must be applied and the respective admissibility must be granted to the appeal, despite the fact that two bills are pending in the Legislative Assembly (legislative files numbers 19906 and 19908) that seek to reform the aforementioned institute to give it the scope it originally had and, in that way, comply with what is indicated in the constitutional votes regarding the reservation of law. However, none of that paralyzes the processing of this matter, without prejudice to the fact that, depending on what is resolved henceforth and the result of those initiatives, the retroactive application of the law may be invoked, which, according to what has been indicated by the Inter-American Court of Human Rights, should not be limited only to substantive law, as it indicated in the cases of Vélez Loor vs. Panama of 2010 and Ricardo Canese vs. Paraguay of 2004. In the latter, it stated: *"178. For its part, the principle of the retroactivity of the more favorable criminal law is contemplated in Article 9 in fine of the Convention* (...) *Said norm must be interpreted in good faith, in accordance with the ordinary meaning to be attributed to the terms of the treaty in their context and taking into account the object and purpose of the American Convention, which is the effective protection of the human person, as well as through an evolutionary interpretation of international instruments for the protection of human rights. 179. In this sense, the more favorable criminal law must be interpreted as both that which establishes a lesser penalty for crimes, and that which encompasses laws that decriminalize conduct previously considered a crime, create a new cause of justification, of inculpability, and of impediment to the operation of a penalty, among others. These assumptions* ***do not constitute an exhaustive list of the cases that merit the application of the principle of retroactivity of the more favorable criminal law. It should be noted that the principle of retroactivity applies with respect to laws that have been enacted before the issuance of the sentence, as well as during the execution of the same*** *, since the Convention does not establish a limit in this regard. 180. In accordance with Article 29.b) of the Convention, if any law of the State Party or another international treaty to which said State is a Party grants greater protection or regulates with greater breadth the enjoyment and exercise of any right or freedom, it must apply the most favorable norm for the protection of human rights (...)"* (the bold emphasis belongs to the original). However, none of this is the responsibility of this chamber. Nor is it unknown that the Third Chamber, through vote number 2019-62 of January 18, 2019, and with an entirely interim composition at the time (J. Robleto, S. Zúñiga, R. Segura, G. Alfaro, and R. López), declared a cassation appeal without merit under such conditions. Due to the importance of the arguments, despite the length of the quote, it is appropriate to transcribe the most relevant parts: «…

*the petition filed by the representative of the Public Ministry before the Cassation Chamber must be declared without merit. To arrive at that conclusion, it is necessary to consider: 1) the historical background of the double conformity and the purpose of the rule; 2) the scope of the double conformity as dimensioned by the rulings of the Constitutional Chamber; 3) the scope of the double conformity in the specific case. In relation to the historical background, it is necessary to consider that the double conformity was initially provided for in Article 451 bis of the Criminal Procedure Code, when the only appeal against the first-instance judgment issued by criminal courts was the cassation appeal. Subsequently, the numbering of the double conformity was moved to ordinal 466 bis of the adjective regulations, then, the guarantee was repealed, and finally, it was restored to the legal system by means of an unconstitutionality action resolved by the Constitutional Chamber. In this sense, it is necessary to contextualize that as a result of the ruling of the Inter-American Court of Human Rights (hereinafter I/A Court H.R.) in the case known as Herrera Ulloa vs. Costa Rica, issued on July 2, 2004, the State was compelled to modify the appeals regime in such a way as to guarantee access to an informal, accessible, ordinary, and effective remedy (ARROYO GUTIÉRREZ, José Manuel. The reform to the criminal sentence appeals regime in Costa Rica. The appeal against the criminal sentence in Costa Rica. Asociación de Ciencias Penales- Editorial Jurídica Continental, San José, C.R., 2013, p. 27). As often happens with the judgments of the international body, the I/A Court H.R. followed up on compliance with what was ordered in the Herrera Ulloa vs. Costa Rica case and, through various resolutions, assessed the procedure for readjusting the Costa Rican legal system, which deserves special attention, given that the State had to carry out two legal reforms in relation to the means of appeal in the criminal process, in order to guarantee the rights provided for in Article 8.2 h of the American Convention on Human Rights (ACHR), a reform procedure through which the double conformity was incorporated and repealed. Among these compliance resolutions is that of September 12, 2005, where it was ordered to keep the supervision procedure open for compliance with the pending points of adherence, including for those purposes, the adaptation of the domestic legal system in accordance with what is established in ordinal 8.2 h of the American Convention on Human Rights. Subsequently, the first legal reform through which it was attempted to comply with what was ordered by the I/A Court H.R. was Law No. 8503, called the Law for the Opening of Criminal Cassation, published in the Official Gazette La Gaceta 108, of June 6, 2006, through which the appeals regime of the criminal process was modified, with the purpose of: “deformalizing and granting greater breadth and flexibility to the cassation appeal, which in our criminal legal system constituted the legal mechanism to challenge the criminal sentence, so that it would constitute a procedural instrument that would materialize the right to appeal the ruling before a higher court, according to the parameters that the* *Inter-American Court of Human Rights stipulated in the Herrera Ulloa case” (VARGAS ROJAS, Omar; JIMÉNEZ GONZÁLEZ, Edwin Esteban. Challenge of the criminal sentence: appeal, cassation, and review. Instituto de Investigaciones Jurídicas, San José, C.R., 2012, p. 73). Precisely, it is through said legal reform that the guarantee of double conformity is included in our positive legal system, by adding Article 451 bis to the Criminal Procedure Code, where it was provided, as relevant: “The retrial must be held by the same court that issued the sentence, but composed of different judges. The Public Ministry, the complainant, and the civil actor may not file a cassation appeal against the sentence produced in the retrial that reiterates the acquittal of the accused ordered in the first trial, but they may do so with respect to the civil action, restitution, and costs. The cassation appeal filed against the sentence of the retrial must be heard by the respective Cassation Court, composed of judges different from those who ruled on the previous occasion. If it is not possible to compose it with new judges because the impediment covers permanent and substitute judges, or there is not a sufficient number of substitute judges, the competence will be assumed by the permanent judges that are necessary, notwithstanding the cause and without disciplinary responsibility for them”* (...) *Said reform included in the criminal procedural regulations a limit on the punitive claim exercised either publicly or privately, establishing that against two acquittals handed down at trial, a cassation appeal could not be filed, thereby preventing returns ad infinitum, that is, rendering nugatory the possibility of ordering retrials indefinitely and without any limit, which emerges with crystal clarity from the historical data related to the law’s approval process. It must be remembered that the Law for the Opening of Cassation and, consequently, the inclusion of double conformity in the Costa Rican legal system, had as a background a legal reform proposal from the Judicial Branch that was discussed in the Full Court (Corte Plena) and subsequently sent to the Legislative Assembly, where, through the previously established process, the project became a law of the Republic. It is precisely within the body of the Judicial Branch that the double conformity was widely discussed, expressly indicating that the purpose of the rule is precisely to prevent the retrial of the case from being ordered indefinitely, with Judge González Álvarez pointing out on that occasion that: “with this, what is called double conformity in doctrine is being closed, which at this moment is open and could occur, and cases of a spiral have indeed already occurred, that is, a trial is held for the accused and he is acquitted, the Public Ministry appeals and the Chamber annuls the sentence, orders a retrial, and in the retrial he is acquitted, the Public Ministry appeals, the Chamber annuls the sentence and it goes back again and he is acquitted again, that is, a spiral issue, and we are closing the possibility that the accusing party cannot file an appeal against the second acquittal in the retrial, so that the only thing that could be appealed would be in relation to the civil action, restitution, and costs, closing it as has been the recommendation even emerging from the postulates of the Constitutional Chamber’s ruling regarding closing the Public Ministry’s appeal, which is already quite closed, let us remember the thesis that at least the possibility is being given that it can appeal once against an acquittal, which is already quite closed as a result of the pronouncements of the Constitutional Chamber” (article XIII of minutes no. 38-2004, of the extraordinary session of the Full Court, held at 1:30 p.m., on December 13, 2004, underlining does not correspond to the original). In the same vein, in response to a query made by Judge Villanueva, then-Judge Arroyo Gutiérrez indicated in the same session that: “we must put ourselves in the shoes of the person who is acquitted once and acquitted a second time, and the system keeps telling them: no, you have to go to trial a third or fourth time; that truly violates every principle of security and the fundamental rights of individuals. In pure accusatory systems, let’s say Anglo-Saxon ones, the State’s ability to accuse a person is unique; exceptionally, as you know, a review of a case is possible, but here we have the State against a citizen whom it supposedly accuses when it has grounds to accuse them and brings them to trial and exposes them before the community as a possible criminal offender, and there is a jury and a judge who say you are innocent, you are guilty, a single time. Here we are giving the State two opportunities, but you will understand that taking a person to trial more than two times is really a fundamental human rights issue and a matter of fundamental legal certainty, which is why it seems to me that the project also saves a reasonable minimum of action on the part of the State against a person pursued criminally” (underlining does not correspond to the original), a position seconded by the then President of the Supreme Court of Justice, Luis Paulino Mora Mora, who added: "That is a thesis of an interpretation that some authors have given to Article 8.2.H of the American Convention on Human Rights, pointing out that it is a right of the accused, but it is not a right of the prosecution to have the possibility of a second review, which is why, according to that thesis in its most restrictive sense, the Public Ministry in the prosecution only has one chance; if it does not achieve a conviction in the sentence, it has no possibility of further discussion. Here we have recognized the possibility that the Public Ministry may file the appeal once; what is being done in this case is restricting that for the retrial, it no longer has that possibility" (underlining does not correspond to the original). As recorded in the minutes cited supra, as part of the same discussion and in a new intervention, ex-Judge Arroyo Gutiérrez highlighted the value of legal certainty, replying: "Regarding this, 8.2.h guarantees the appeal in favor of the convicted person; it does not exclude the possibility of an appeal by the accusing party; it does not mention it. What 8.2.h does is guarantee the convicted person, and in that context, we should also not lose sight of what the American Convention does, because that is what is directly related to what they have ordered us, so that, if I understood correctly, Judge González Camacho, effectively, when the possibility of the prosecuting entity of the Public Ministry to reiterate its accusation multiple times is limited, it is limited because it is not being eliminated, it is limited to two, obviously what is being done is trying to balance legal certainty and fundamental rights within the framework of a state of law, and that the citizen knows at some point that it is over, because it could be perpetual". On the other hand, the Constitutional Chamber had already pronounced on double conformity as a guarantee of legal certainty, establishing that: “The prohibition is based on legal certainty in the exercise of the State's ius puniendi* (sic)*, which cannot be maintained indefinitely until a conviction is handed down” (vote 2009-007605 of the Constitutional Chamber, at 2:43 p.m., of May 12, 2009, underlining does not correspond to the original). Despite the aforementioned reform aimed at complying with what was ordered in the Herrera Ulloa vs. Costa Rica case, in the I/A Court H.R. resolution of September 22, 2006, related to the supervision of compliance with the judgment, it was decided to keep the supervision procedure open in relation to the adaptation of the domestic legal system, according to what was ordered in Article 8.2 h of the American Convention on Human Rights; however, it must be considered that the report presented by the State before the I/A Court H.R., which served as the basis for keeping the procedure open, was sent on January 30, 2006, that is, approximately 6 months before the approval of the Law for the Opening of Cassation, so on that occasion, compliance with the sentence considering said reform could not be evaluated. Subsequently, as recorded in the resolution of the Presidency of the I/A Court H.R. of June 2, 2009, issued on the occasion of the supervision of compliance with the I/A Court H.R. judgment cited supra, the Inter-American Commission on Human Rights (hereinafter IACHR) pointed out to the I/A Court H.R. the insufficiency of the Law for the Opening of Cassation to comply with what is provided in the ACHR, noting: «“That the Inter-American Commission analyzed the so-called Opening Law and considered that it “broadens to a certain extent criminal cassation in order to adjust the cassation appeal to Article 8.2.h of the Convention through three fundamental changes i) the relaxation of the admissibility of the cassation appeal; ii) the granting of additional powers to the authorities that must decide on the appeal to review in toto the actions of the first-instance court; and iii) the relaxation regarding the admission of evidence. The Commission took note of “these important reforms promoted by the State* […] *; at the same time, it considered that their effectiveness and the consequent compliance with what was ordered by the Court in its judgment of July 2,* *2004, must be evaluated based on the application of the new model to specific cases”. 19. That, in relation to the statistical information provided by the State, the Inter-American Commission considered that it has not been demonstrated that the State’s procedural system has been redesigned to provide greater judicial guarantees to citizens. Finally, it requested that the Court “declare that the State adopted legislation aimed at adapting the Costa Rican legal system to what is established in Article 8.2.h of the American Convention, in relation to Article 2 of the same, whose application and consequent evaluation of effective compliance is still pending, so the supervision procedure must be kept open regarding this point”»* (underlining does not correspond to the original), for which reason a private hearing had to be scheduled to verify said observations of the IACHR. Following that, as recorded in the I/A Court H.R. resolution of July 9, 2009, related to the compliance supervision process, the representatives of the State of Costa Rica pointed out that Bill No. 17.1443, called “Law Creating the Appeal of the Sentence, Other Reforms to the Appeals Regime, and Implementation of New Orality Rules in the Criminal Process,” was in progress, a reform that the State reported signified the culmination of: “an arduous process of partial reforms dating back to the eighties of the last century, all aimed at achieving compliance, by the domestic procedural system [of Costa Rica], with the obligations emanating from the American Convention, especially Article 8.2.h, in relation to Article 2 of the same” (underlining does not belong to the original). However, in the absence of the bill’s approval, the I/A Court H.R. kept the compliance supervision procedure open. Finally, through Law No. 8837, called the Law Creating the Appeal of the Sentence, Other Reforms to the Appeals Regime, and Implementation of New Orality Rules in the Criminal Process, published in the Official Gazette La Gaceta 111, of June 9, 2010, compliance was achieved with what was ordered in the Herrera Ulloa vs. Costa Rica case, as emerges from the I/A Court H.R. resolution of November 22, 2010, related to the compliance supervision procedure. On that occasion, the I/A Court H.R. reasoned that the State: “considered that the reforms introduced by the Opening Law needed to be strengthened and, motu proprio, initiated a new legal reform process, which concluded with the sanction of Law No. 8.837. Through said law, in addition to maintaining the cassation appeal, the appeal of the criminal sentence is created, which, inter alia: a) allows the sentence to be reviewed by a higher court; b) consists of a simple appeal, without major formalities, which avoids requirements or restrictions that infringe the essence of the right to appeal, and c) enables the comprehensive examination of all the issues debated and analyzed by the trial court. 16. The Inter-American Court concludes that, by guaranteeing the possibility of broad control of the sentence issued by a trial court in criminal matters at the domestic level, Costa Rica has fully complied with the fifth operative point of the Judgment and, with it, the present case is concluded. The future application of the appeal of the sentence is not a matter for the supervision of compliance in the Herrera Ulloa case”. Despite the foregoing, through Article 10 of Law No. 8837, the double conformity provided for at that time in Article 466 bis of the Criminal Procedure Code was repealed (formerly Article 451 bis of the Criminal Procedure Code, but whose location in the adjective regulations was changed as a result of Law No. 8720 of March 4, 2009, called the Law for the Protection of Victims, Witnesses, and Other Participants in the Criminal Process, Reforms and Additions to the Criminal Procedure Code and the Criminal Code). On the other hand, in relation to the process of restoring double conformity, through a filing dated June 13, 2012, an unconstitutionality action was filed against the elimination of the guarantee cited supra, a petition that was declared with merit through the Constitutional Chamber vote* *2014-013820 of 4:00 p.m., of August 20, 2014, ordering that: “The unlimited power to challenge the acquittal may also indirectly injure the principle of prompt and complete justice; the unlimited challenge may legitimize, in some cases, a process of indeterminate duration, despite the repeated acquittals. Repressive power is an act of such relevance to fundamental rights, especially liberty, good name, and privacy, that it is required, in any case, that the possibility of bringing an acquitted citizen to trial multiple times have an insurmountable limit, the definition of which, of course, corresponds to the ordinary legislator, which in this case refers to the reiteration of a cassation appeal when an acquittal has been handed down. This was defined by the repealed rule, imposing a limit that is constitutionally reasonable and* *proportional”. From a reading of the entirety of the Constitutional Chamber’s ruling, the following corollaries can be extracted: a) based on the principle of legal certainty, the need to limit the ius puniendi can be inferred; b) it is not possible to maintain an authorization to challenge, in an unlimited manner, the acquittal issued in a criminal case;* *c) the State cannot act as a pursuer ad infinitum; d) the guarantee of appeal provided in Article 8.2 h of the American Convention on Human Rights is exclusively for the accused; e) the second acquittal is unchallengeable in cassation; f) the unlimited power to challenge may injure the principle of prompt and complete justice, legitimizing, in some cases, processes of indeterminate duration; g) the ne bis in idem principle imposes a restriction on the possibility of prosecuting a citizen, in this case, through a limit on the challenge, although the aforementioned principle (indicates the Chamber) is not fully applicable in double conformity.* *Subsequently, the Constitutional Chamber, acting ex officio, through resolution 2014-17411 of 4:31 p.m., of October 22, 2014, supplemented the resolution cited supra, using a literal grammatical interpretation of Article 466 bis of the Criminal Procedure Code, indicating that: “as the restored rule only refers to the cassation appeal, what is provided there cannot be extended to the appeal. According to the literal meaning of the rule being revived, the limitation was provided only for cassation, and not for appeal, because appeal was not incorporated until 2011, and the rule that revives this limitation on cassation dates from 2006. Therefore, the rule revives the limitation only for the extraordinary cassation appeal, because the rule was originally provided only for it, as appeal did not exist at that time”* (underlining does not correspond to the original).

The constitutionality of the scope of the double conformity (doble conformidad) was challenged through a new action of unconstitutionality (acción de inconstitucionalidad) brought by the Public Defender's Office (Defensa Pública), given the existence of a criminal proceeding in which two acquittals had been issued and the accused was awaiting a third trial, as a result of the remand (reenvío) ordered in that case by the Sentencing Appeals Court of the Second Judicial Circuit of San José (Tribunal de Apelación de Sentencia Penal del Segundo Circuito Judicial de San José). Therefore, in the petitioners' view, limiting the double conformity to the cassation appeal (recurso de casación) without including the appeal (recurso de apelación) prevents the full application of the legal institution. However, the Constitutional Chamber (Sala Constitucional) denied the extensive application of double conformity to the criminal sentencing appeal and reiterated that the limitation of the exercise of the ius puniendi through double conformity applies only in relation to the cassation appeal, establishing that the limitation of the appeal after two acquittals must be established by the legislator and not through case law. In this regard, the aforementioned ruling (voto) stated: "This Chamber has already ruled, through resolutions 2014-013820 and 2014-017411, that the reinstatement (restitución) of Article 466 bis of the Criminal Procedure Code (Código Procesal Penal) refers only to the cassation appeal and what is provided therein cannot be extended to the appeal. The resolutions of this Chamber cannot be subject to an action of unconstitutionality. What this action seeks is for this Chamber to change what was stated in the indicated resolutions, and no appeal whatsoever lies against the resolutions of this Chamber. Furthermore, the intended interpretation of Article 466 bis of the Criminal Procedure Code is a matter for the legislator, as it seeks to include the appeal within that norm" (ruling 2016-016967 of the Constitutional Chamber, 10:42 a.m., November 16, 2016, underlining not in the original). Finally, in a factual scenario where the accused was acquitted on two occasions at trial and, despite this, the Sentencing Appeals Court ordered the case remanded for a new trial, the Constitutional Chamber reiterated what was stated in resolution 2016-016967 cited supra and added that: "the conformity of the challenged norm with the Political Constitution has already been resolved by this Constitutional Court on repeated occasions, referring expressly to the arguments formulated to the effect that not only should the unconstitutionality of the aforementioned precept be declared, but rather that this Constitutional Court should annul and modify the criterion set forth in Decisions Nos. 2014-013820 and 2014-017411, in relation to said regulation, which cannot be done through this channel. In short, this is an aspect in which this Constitutional Court should not intervene, but rather, on the contrary, its resolution is a matter for the Legislator, who must determine the feasibility of extending the scope of that precept to the appeal, as intended by the plaintiff, which falls within its scope or freedom of normative configuration. Consequently, the questioned precept is not considered unconstitutional and, therefore, what is appropriate is the rejection on the merits of the action" (ruling 2018-006095, 9:20 a.m., April 18, 2018). Having clarified the background of the double conformity and its purpose, as well as the process for its incorporation into the legal system, its subsequent repeal, and finally its reinstatement, it is necessary to establish when the double conformity is applicable, taking into consideration the limits set in the ruling of the constitutional jurisdiction regarding the scope of the legal institution. In this sense, it must be kept in mind that Article 13 of the Law of Constitutional Jurisdiction (Ley de Jurisdicción Constitucional) provides that the case law and precedents of the constitutional jurisdiction are binding erga omnes, and therefore, among all reasonable ways of interpreting the norm, one must always choose the interpretation that conforms to constitutional case law. Thus, the rulings of the Constitutional Chamber set forth supra related to the scope of the double conformity constitute an insurmountable barrier in the legal interpretation that the jurisdictional body cannot ignore when resolving a conflict. In this case, from rulings 2014-013820, 2014-017411, 2016-016967, and 2018-006095, all from the Constitutional Chamber and related to actions of unconstitutionality concerning the double conformity, it follows that when Article 466 bis of the Criminal Procedure Code establishes a limit for challenging the second acquittal, a literal grammatical reading of the norm must be made, understanding that the limit to the ius puniendi is restricted to the cases of the cassation appeal and not the sentencing appeal, as expressly recognized by the constitutional body (...) In the specific case, even though the case law of the constitutional body has made a literal grammatical reading of Article 466 bis of the aforementioned regulation, based on said method of interpretation (...) regardless of the reasoning expressed by the ad quem and its conformity to what was provided by the Constitutional Chamber in relation to the possibility it had to analyze the merits of the sentencing appeal instead of declaring it inadmissible, the truth is that the factual scenario provided for in Article 466 bis of the Criminal Procedure Code is verified here and, consequently, given a second acquittal issued by the trial court, a cassation appeal cannot be filed, a conclusion that is consistent with the case law of the Constitutional Chamber, making it improper to analyze the correctness or not of the ad quem's resolution. This conclusion is consistent with a subjective-voluntarist or teleological interpretation, insofar as, based on the norm's background, it can be clearly established that the purpose of double conformity was to prevent trials from being remanded ad infinitum and seeks to guarantee the principle of legal certainty (principio de seguridad jurídica). On this aspect, it should be remembered that double conformity is a primary guarantee (FERRAJOLI, Luigi. Derechos y garantías. La ley penal del más débil. Editorial Trotta, seventh edition, Spain, 2010, p. 43) of the fundamental right not to be prosecuted indefinitely (GUTIÉRREZ CARRO, Agustín. La inimpugnabilidad de la segunda absolutoria penal como garantía de derechos fundamentales: un ejemplo del enfoque postpositivista al servicio del garantismo. Revista Digital de la Maestría en Ciencias Penales, number 8, 2016, consulted at https://revistas.ucr.ac.cr/index.php/RDMCP/issue/view/2191). From this perspective, to claim that double conformity only applies when both the ad quem and the a quo resolve according to law implies a requirement not provided for in the norm that would empty the guarantee of double conformity of its content and would oblige, in all cases, the Third Chamber of the Supreme Court of Justice (Sala Tercera de la Corte Suprema de Justicia) to review the merits of the Sentencing Appeals Court's resolution to see if it conforms to substantive and procedural regulations, which is absurd, since in the balancing performed by the legislator between the principles of legal certainty and effective judicial protection (tutela judicial efectiva) when establishing double conformity as a limit to the ius puniendi, prevalence was given to legal certainty when two acquittals are issued, without considering whether the acquittal was appropriate or not. For these reasons, considering that in the specific case two acquittals have been issued at the trial stage, assessing the purpose of the norm, in accordance with the scope of the Constitutional Chamber's resolutions related to double conformity, it must be concluded that the appeal filed by the representative of the Public Prosecutor's Office (Ministerio Público) (...) must be dismissed." However, even though this chamber agrees with the jurisdictional reasoning expressed supra—that is, it agrees both on the need to maintain the figure of double conformity (doble conforme) and on the assessments that the repeal of the provision by the legislator was an error, especially when supposedly done to comply with an international condemnation, and it likewise agrees that the Constitutional Chamber, in its exercise of interpretation, disregarded principles of human rights and revoked its own decision through an improper channel (addendum)— it cannot but recognize that, given the existence of a binding ruling from the Constitutional Chamber, express and final on the point, it must be applied. Not doing so would be to incur in errors similar to those attributed to said constitutional body, and there are no conventionality criteria, of higher rank with respect to domestic law, to set aside the constitutional ruling. Therefore, the pronouncement of the Third Chamber on the issue of double conformity does not bind this body, not only because the law does not grant it that character and there exists a higher-ranking principle (constitutional and conventional) of judicial independence, but also because, in any case, it does not nullify the analysis that has been set forth (wherein the Constitutional Chamber itself, in a subsequent and explicit ruling on the constitutionality of the various interpretations, resolved contrary to said thesis). That is, the substantive criterion of the cassation body is not shared insofar as it disregards the latest binding ruling of the Constitutional Chamber. Consequently, in principle and from this perspective, the prosecution's challenge must be heard and the request, raised by the defendant's counsel during the hearing held, for it to be declared inadmissible must be rejected, thereby saving the responsibility of those who make up this court for the consequences of the Constitutional Chamber's ruling (not shared, but one that binds us).

II.- As a first ground of the public defender's appeal (recurso del defensor público), the violation of the principle of effective judicial protection, action contrary to due process in the reception of evidence, and disintegration (desintegración) of the court through the irregular use of electronic means are alleged. He states that although he understands that, due to the pandemic circumstances, the use of technological tools is appropriate, he reproaches the way they were used in the specific case, since on December 3, 2020, in one of the continuations of the trial and when the tenth day of suspension was about to expire, two of the alternate judges (con-jueces) joined the hearing via Microsoft Teams from their homes, as they had been issued health orders (órdenes sanitarias) due to suspicion of being infected with SARS-CoV-2. He states that, instead of annulling the trial, it was decided to continue it through that medium and to incorporate documentary evidence, but that this was a disintegration of the court in violation of the principle of effective judicial protection, the content of which he explains. He indicates that the judges who were not physically present in the courtroom did not apprise themselves of the content of the documentary evidence incorporated that day, since they did not have access to the physical case file, and that the stress factor both were experiencing—because they were under a health order for a disease that, at that date, had killed two million people worldwide—could affect their levels of concentration, immediacy (inmediación), and integration. He says that the protocol defined in circular 102-2020 alludes to the possibility of the parties connecting remotely, not for the court to do so. Furthermore, in his conclusions, he referred to the psychological expert reports (pericias psicológicas) carried out on the victims and incorporated on December 3, 2020, but the judgment did not mention the issue, which demonstrates, in the appellant's view, the magnitude of the disintegration, since that evidence was incorporated on that same date and was not paid attention to. He transcribes jurisprudential pronouncements on the integration of courts and alludes to ruling number 1624-2020 of the Constitutional Chamber which, according to his explanation (although this chamber did not locate any pronouncement on that topic with that number), states that although technological measures are permitted due to the pandemic, they must respect fundamental rights, and he adds that a botched job (chapuza) that brings about the annulment of the basic content of a guarantee cannot be permitted. He requests that the challenged judgment be annulled. As a second ground of appeal of the defense appeal, the violation of the principles of effective judicial protection, due process, and natural judge (juez natural) in the reception of evidence is alleged, due to disintegration of the court, because, during the trial, specifically while testimonial evidence was being received, Judge Mauricio Jiménez Vargas remained asleep at several moments that the counsel cites by referring to the audiovisual files and time sequences (five in total), and that all of this occurred during the statements of the victim [Name 005] and the accused. He transcribes, in part, ruling number 1559-2019 of this court (with a different composition) and requests that the judgment be annulled. During the oral hearing, the appellant did not refer to this issue, nor did the defendant. In responding to the appeal, the prosecution representative requested that it be rejected. Regarding the first allegation, she indicated that, although what happened with the judges was as described, she believes the defense counsel is disloyal because he does not report that neither he nor his client expressed opposition to the trial proceedings being conducted in that manner. She adds that the judge who was present in person directing the trial explained to the parties how that hearing would be conducted and, from minute 00:05:06, gave the floor to all parties to state their position on the matter, and the defense counsel stated that it was in his and his client's interest for the trial to continue. She states that the court's technician had previously coordinated with the defense counsel so that he would not present the defense witness scheduled to be heard that day, which evidences the total acquiescence of the parties for the trial proceedings to be conducted in the way they were, and for the order of admission of evidence to be altered and the early incorporation of the documentary evidence to be accepted. Therefore, the documentary elements admitted in the order to open trial (auto de apertura a juicio) were incorporated, mentioning them, without any of the procedural subjects requesting the full reading of any of the documents. Being connected via Microsoft Teams, Judge Ramírez Angulo and Judge Jiménez Vargas were able to observe and hear the incorporation, by reading, that the presiding judge, who was physically in the courtroom, was carrying out, and it is only in the deliberation phase when, in practice, judges apprise themselves of the entirety of the content of the admitted documents. She concludes that it is materially impossible for the three judges, in this or any other trial, to jointly read the documents at the moment of the incorporation of the evidence. Regarding the other argument, she states that, indeed, upon observing the videos at the moments indicated by the appellant, it can be appreciated that Mr. Jiménez closes his eyes, and this may be due to tiredness or even to rest his eyes, but it is not possible to affirm conclusively, nor in a reasoned manner, that these biological reactions constitute interruptions in the cognitive development and perception of the judge regarding the parties' arguments, the reproduction of the evidence, or the rituals of the trial. She indicates that this trial extended over several months, that the accounts of the victims and the statement of the accused were lengthy, and that, indeed, if the entirety of the trial is observed, it can be inferred that the appellant suffered the same biological consequences that he accuses, without this implying that he was sleeping, since biologically a person can close their eyes without implying that they are dozing off, and therefore she requests the complaint be rejected. During the oral hearing, the prosecutor who appeared stated that the protocol stipulated in circular number 102-2020 of the Full Court (Corte Plena) was complied with and that only assumptions are made that access to the documents was not available. He refers to rulings of this court on the issue of judges who doze (rulings number 2016-326 and 2016-346). The representative of Temporalities of the Archdiocese of San José (Temporalidades de la Arquidiócesis de San José) said she would not comment on this appeal, and the lawyer from the Office of Civil Defense of Victims (Oficina de Defensa Civil de las Víctimas) did not elaborate on the issue. The complaints are not admissible and will be heard jointly as they refer to issues related to the manner in which the trial was conducted. In the first place, effective judicial protection, or the human right to have judicial bodies that resolve conflicts according to law, is not hindered because, in the worst pandemic the world has seen this century, the way of working is readjusted to guarantee the validity of basic principles for the judgment of individuals in order to protect the health and life of the community, avoiding massive displacements that generate the spread of the SARS-CoV-2 virus (and its variants) that causes COVID-19. On the contrary, if, as a result of existing technological development, it is possible to establish measures that reconcile these rights, there should be no hesitation in adopting them, since, as the Inter-American Court of Human Rights (Corte Interamericana de Derechos Humanos) indicated in its Declaration of April 9, 2020, "it is essential that access to justice be guaranteed," and this is for all persons. The opposite, that is, closing justice services, would indeed imply an impact on said right, and keeping them open while forcing displacements and face-to-face contacts in real risk situations (areas with increases in infections or health alerts for individuals) seriously endangers the health and life of the people, whose protection is, ultimately, the purpose of the entire legal system. It is necessary to remember that human rights are not absolute, but rather admit exceptions, insofar as they must be reconciled with other (human rights) of other persons given the characteristic of interconnection among them, which is inherent to the matter. If the Law admits that the greatest value protected by legal systems (the life and dignity of individuals) can be excepted when the life of another person is at risk (cases of self-defense (legítima defensa), for example), with greater reason must this balancing and proportionality exercise be carried out when it involves rights of a different order, as occurs between life and health (higher priority) with respect to some legal forms which, in any case, can be varied for others without ceasing to protect the substantive right protected (the right of defense (derecho de defensa), to refute and contradict the evidence, etc.). Therefore, in principle, the mere existence of mechanisms other than face-to-face ones for the conduct of hearings in periods of crisis is not, in and of itself, a violation of constitutional principles, unless it is proven that, due to the specific way in which it was carried out in a particular case, an unconsented and irremediable impact on one of them was indeed generated. In the present case, the trial unfolded as follows: a) it began on November 9, 2020 (see record on folio 660); b)- the second hearing took place three days later, on November 12, 2020 (see folios 661-662); c)- it continued six days later: on November 18, 2020 (see folio 663); d)- it continued the next day, November 19, 2020 (see folios 665-666); e)- within the ten-day period, other consecutive hearings were scheduled for November 23 to 25 (see folios 667 to 668 bis); f) according to health order OD-407-2020 issued in the name of Judge Jiménez Vargas, it was in effect from November 27 until December 10, 2020, and he was placed on medical leave from December 7 to 10, 2020. Judge Ramírez Angulo supplied the same information regarding the dates of her health order, adding that she did not require any medical leave because she did not present symptoms (see reverse of folio 826); g) the trial continued on the sixth day after the last session had closed, that is, it continued on December 3, 2020. On this occasion, Judge Jiménez and Judge Ramírez were under a health order but without medical leave. They connected from their homes via Teams and, as the trial record and recordings attest, on that occasion all the documentary evidence stipulated in the order to open trial was incorporated, but the parties stated that they did not want the reading of any of those documents, mentioning some that were missing from that list or whose processing was pending (see folio 669); h) on the tenth day from that date, the trial continued, on December 17, 2020 (see folio 670), an occasion on which Judge Mauricio Jiménez Vargas and Judge Cinthya Ramírez Angulo were already connected via Teams. It should be noted that for the former judge, the medical leave had already ceased by then; i) the trial continued on January 8, 2021 (see folios 671 to 674).

It must be taken into account that the Judicial Branch had a collective closure (for vacations, recesses, and holidays) from December 18, 2020, to January 4, 2021, so, therefore, that period is non-business days and from the last session to this one, six business days elapsed; j) the trial continued on January 18, 2021 (sixth day) according to folio 681; k) it continued on January 20, 25, 27, and 28, 2021, that is, without exceeding the ten-day period between each one (folios 683, 685, 689, and 690); l) it proceeded on the seventh day, February 8, and the ten-day period was also not exceeded between that session and the following sessions held on February 11, 16, and 18, 2021, this last date on which the operative part was issued, and then, within five days, specifically on February 25, the comprehensive judgment was issued (see folios 692-697 and 750). That is, in no case were the ten days exceeded between one session and another—which is the maximum possible between hearings, regulated by Article 336 of the Criminal Procedure Code (Código Procesal Penal), for the act to maintain validity—; in none of the referenced hearings were the judges medically incapacitated, but in two of them they did have a sanitary isolation order that warranted the proceeding being conducted with them in their homes (connected simultaneously by videoconference, via Microsoft Teams, that is, through audiovisual means by which they could speak, listen, see, and be seen) and the rest of the people were located in the hearing room (from where they could see, speak, and hear the judges who were not in the room), at which time no one voiced any reproach for what was done (but which, in any case, had it been voiced, did not prevent proceeding in that manner, as will be indicated). This and the non-assessment of certain documents in the judgment are what is alleged to be injurious to rights. The first thing that must be indicated is that the mere existence of an isolation order does not mean that the official is medically incapacitated. This distinction is important because incapacity for health reasons generates a suspension of jurisdiction (suspensión de la jurisdicción) and this, in turn, implies that the person cannot carry out any jurisdictional act: "The suspension of jurisdiction (suspensión de la jurisdicción) consists of the judge, during a period, being unable to issue any pronouncement, and any pronouncement issued will be absolutely null. A judge has their jurisdiction suspended when a disciplinary sanction of suspension has been imposed, when a special leave has been granted, when the judge is incapacitated due to illness, or when the judge is on vacation. It should not be confused with the suspension of competence (...) because the suspension of jurisdiction (suspensión de la jurisdicción) means that the judge in that condition cannot perform any act related to that function. That is, the impossibility of carrying out those procedural or administrative acts is total." [Arguedas Salazar, Olman (2000), Teoría General del Proceso. Editorial Juritexto, 1st ed., San José, Costa Rica, 2000, p. 21]. This is extracted from the same Article 162 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) which, although it deals with this concept jointly with that of loss of jurisdiction (which are not equivalent since the former is temporary and the latter permanent), does distinguish their effects and, in Article 168 ibidem, stipulates the nullity of acts carried out by those whose jurisdiction is suspended. In these cases, the person cannot perform any work of their jurisdictional activity during a certain period and if, despite that, they execute it, the act has no effect. This has been indicated, for example, in the judgments of the former Criminal Cassation Court of San José (L. García, R. Chinchilla, and E. Salinas) number 2011-263 and of the Criminal Sentence Appeals Court of San José number 2013-2614 (R. Chinchilla, L. García, and J. Arce, with a note by this judge). For their part, sanitary isolation orders are administrative acts issued by the Ministry of Health within the framework of what is stipulated by Article 365 of the General Health Law (Ley General de Salud) which provides: "The isolation of a person or group of persons means their separation from all others, with the exception of the personnel in charge of their care during the period of transmissibility or their placement in places and under conditions that prevent the direct or indirect transmission of the infectious agent to persons or animals that are susceptible or that may transmit the disease to others, depending on the severity of the case." Note that isolation is not only for sick persons but also for those suspected of being so because they have had close contact with an affected person, as distinguished by Article 378 of that law, for, in its subsection b), it stipulates: "[Name 003] the person suspected of a contagious disease or that person who, even without presenting evident symptoms or signs of said disease, is subject to an isolation order due to being a close contact of a causal agent of the disease, a fixed fine of three base salaries." Precisely for this reason, Article 336 subsection d) of the Criminal Procedure Code (Código Procesal Penal) establishes: "The hearing shall be held without interruption, during the consecutive sessions necessary until its conclusion; but it may be suspended for a maximum period of ten days, in the following cases: (...) d) If a judge (...) becomes ill…" In this matter, as detailed, there was no incapacity whatsoever of the cited judges during the trial hearings; rather, only on two occasions were they covered by sanitary isolation orders, so they were in their homes connected by electronic means, which, as noted, is not, in and of itself (but rather due to the manner in which it is carried out or the circumstances surrounding the matter, which must be analyzed on a case-by-case basis), a cause for any disintegration of the court, given the current possibilities of interconnection, which, moreover, guarantee the perception of image, tones of voice, and capture of contexts to rule out that the person testifying is reading, being signaled something, or accompanied (coached or intimidated), which allows for verifying levels of immediacy (inmediación) and concentration. In the case of collegial courts and regarding the professional-defense and material-defense relationship, those means (if applied adequately) can also allow immediate private communication to guarantee the right of defense and private deliberation. Consequently, on a case-by-case basis, it will be necessary to determine if, due to the circumstances surrounding a specific matter, any of the underlying guarantees were violated, but the form, in and of itself, is not censurable. Now then, having clarified the foregoing, the appellant's complaint is not, in itself, the videoconference link, nor the isolation situation of those judges (in which the defense itself showed its acquiescence), but rather the disagreement lies in the fact that, in their view, they could not apprise themselves of the content of the documentary evidence that was introduced that day because they did not have access to the physical case file, a claim that, it should be noted and in view of the duty of loyalty (Article 127 of the Criminal Procedure Code), the cited professional did not voice at the time and, on the other hand, if acceptable, would be equally extensible to courts integrated in person in which documentary evidence is introduced without the need for reading due to the parties' acquiescence and only one of the judges has the physical case file in their hands and the others have immediate material impossibility of knowing the content, an issue that, for the reasons that will be stated, has no impact on the parties' rights and denotes the impropriety of the complaint. In this matter, there is no evidence (other than the speculation of the challenger) that the other judges lacked access (prior, simultaneous, or subsequent) to the documentary evidence introduced. Recall that the computer means available today imply the possibility of photographing or scanning documents and transmitting them through mobile messaging services, emails, or even online in real time. In any case, since the parties also did not request that those documents be read (which consisted of what was stipulated in the order to commence trial, according to folio 669 front and back) and the debate later continued, there was no adversarial proceeding or immediacy (inmediación) affected in this regard, and the cited judges could well access their content at another time. That is, what is alleged here is nothing more than respect for the form for its own sake considered, without protection of any ulterior principle, which is not admissible by virtue of the aphorism 'pas de nullité sans grief' (there is no nullity without prejudice). The appellant indicates that, since the illness for which the judge and the female judge were preventively isolated, on suspicion that they carried it, was one that had, by that date, killed two million people worldwide, that could affect the levels of concentration and immediacy (inmediación) that those judges might have had, given the nervousness and emotional impact that this could generate. And while that could be the case (who under the same conditions would not be or is it perhaps thought that judges are autonomous beings without thoughts or feelings?), it would only apply if there had been some effective introduction of evidentiary elements that required active attention from the members of the court and that could not be captured at other times and if such a thing were demonstrated, but this is not the case, in which the cited documents were not effectively read (they were only mentioned by type or folio) given that the parties consented to such procedure and all of them were in the possession of the court during the subsequent development of the debate for their analysis. The fact that the psychological expert reports performed on the offended parties and that were introduced on December 3, 2020, were not expressly mentioned in the judgment does not imply that, if that were the case (which is mentioned here only hypothetically), the defect (if it exists) is due to the issue of the sanitary order or the virtual introduction of the document, but rather to other reasons in the deliberation and drafting phase of the decision, which occurred on a date after what is alleged, an issue (of whether they were actually analyzed or not and their weight) that will be revisited in later sections of this decision. In short, this Chamber finds no grievance or irregularity with what was done, which, moreover, conforms to the stipulations contained in Constitutional Chamber (Sala Constitucional) vote number 11122-2020, in which, although referring to another topic (legislative sessions), it is comparable to the one discussed here insofar as both deal with state actions governed by principles regulated and provided for times different from the current ones. There it was indicated: «…the Political Constitution (Constitución Política) is a living normative body, whose interpretation must adapt to new circumstances. When the Constitution mentions concurrence or votes present, it must be understood that this concurrence or presence is not only physical but can also be virtual, as current technologies permit. Even more so, in circumstances of national emergency in which, in order to protect people's health, physical distancing is imposed to prevent the spread of the Covid-19 virus. Certainly, the emergency exists, and the State's organs must continue functioning, with adaptations of course, but they must continue functioning for the better satisfaction of the public interest (...) As mentioned in the explanatory memorandum of the consulted project, the Attorney General's Office (Procuraduría General de la República) has indicated that, "the new information and communication technologies are not foreign to the Administration and cannot be so, as long as those technologies are changing the society upon which public power acts. It would be contradictory for the State to become obligated to develop or promote wide-coverage information and communication network infrastructures that are accessible and affordable and that use the best available technology (...) but simultaneously the State finds itself limited in using that technology and the networks that are constituted." (C-298-2007, August 28, 2007). Highlighting that the same consulted project emphasizes the exceptional nature of the measure, which would be maintained as long as objective and reasonable circumstances occur that prevent holding legislative sessions with the physical presence of the deputies. So it is a reform to address the current social reality of our country.» (Emphasis supplied). Similarly, already for judicial matters in specific criminal matters, and more specifically regarding persons deprived of liberty (but equally extensible to those who are not but who may also suffer limitations to other constitutional rights), said Chamber indicated, in vote number 2021-2260, the following: «…the Justice Administration System and the Penitentiary System must adapt to the current limitations imposed by sanitary measures, and design and implement the actions that are necessary, so as not to paralyze criminal proceedings, and to guarantee the fulfillment of the constitutional and procedural rights and guarantees that accused persons who are deprived of liberty have. The previous premise is what this Chamber has been developing throughout the precedents issued regarding the effects of the current pandemic within the functioning of the Public Administration. Specifically, regarding criminal proceedings and the rights of persons deprived of liberty, it has ordered the design and execution of care protocols for mass cases (of Covid-19) and for requesting medical attention (both within the Penitentiary System), and in turn, it has ordered that the Prison authorities of the Judicial Investigation Organism (Organismo de Investigación Judicial) implement the opportune coordination with the respective Criminal Courts and Tribunals, to avoid overcrowding (...) Also, this Chamber, through its precedents, has guaranteed that hearings or debates involving persons deprived of liberty are held, without these proceedings being able to be delayed beyond what is reasonable. And recently, it has validated the use of technologies, such as Videoconference, to hold hearings and even debates. The foregoing implies that the Chamber's line maintains that the ordinary situation is the presence of the accused person within the hearing, so that they may exercise their material defense, and that, in extraordinary cases, their physical or direct presence can be dispensed with, substituting it with their participation through technological means…» (Emphasis supplied). The reasoning is valid, by parity of reasoning, for other procedural subjects. The other argument, relating to the fact that, while testimonial evidence was being received, Judge Mauricio Jiménez Vargas remained with his eyes closed for several moments while the offended party [Name 005] and the accused were testifying, is also not admissible insofar as having one's eyes closed does not mean one is asleep and, even if it were hypothetically accepted that the latter had occurred for brief seconds that are verified in the recording, the judgment analyzed both statements, without it being alleged or verified that relevant aspects of each of them were omitted from consideration, so there was no pretermission of evidence or, in another way, affectation of the protected guarantee. This Chamber respects the opinion expressed by another section of this same court through vote number 1559-2019 (R. García, A. Araya, and G. Figueroa) and cited by the appellant, but does not consider it applicable to the case because here it has not been accredited that the judge was distracted carrying out other tasks and that this had an impact on the weighing of the evidence, which is what that case refers to: “…the judge was distracted during the depositions of the offended party and Mrs. [...] to the point that there were moments when, despite the victim or her parent making no statement, he continued carrying out that dynamic of consulting documents and typing on the computer, thus denoting, in a clear and evident manner, that he was also not taking notes of their statements, as could be observed, by way of example, during the offended party's deposition, in the sequences: 00:27:35 to 00:27:45; 00:28:34 to 28:52; 00:29:31 to 00:30:03; 00:31:26 to 00:31:45; 00:36:08 to 00:36:46; 00:36:49 to 00:37:05; 00:38:56 to 00:39:20; 00:40:04 to 00:40:26; 00:41:39 to 00:42:11; and 00:42:50 to 00:43:08, of the sentence counter. The same attitude was maintained during the identification of the accused, minutes 00:04:25 to 00:09:40 and he also did not suspend said action during pauses (for example, before receiving the statement of the aggrieved party's mother, where he displayed a similar dynamic, sequence 00:00:39 to 00:02:40) and although, being an interruption of the trial -where no evidence is received- his concentration would not be required, the truth is that his conduct is only taken here as a reference that the described judge was performing, even, tasks unrelated to the debate and to the recording of what was declared by the appearing persons, as could eventually be considered but -according to what has been stated- this is completely ruled out, since it is not logical that he continued typing without any testimony being given. Furthermore, it is observed that this situation was repeated on the various occasions when the offended party resorted to body language during her narration and her gestures were also not visualized by the indicated member of the collegial body, who thereby demonstrated his absolute disinterest, disrespect, and lack of consideration towards what was narrated by the victim." On the contrary, through vote number 2016-326, this Chamber, with a partially different integration from the current one (R. Chinchilla, P. Vargas, and J.

Campos) has indicated: «it cannot be determined that this body incurred in constant distractions or of such magnitude that they affected the necessary concentration that judges must have during the adversarial proceeding, without the mere verified fact that, on certain occasions, a judge uses said device (which is not necessarily for matters unrelated to the functions they are performing at that moment) being, by itself, a cause for annulment, but only insofar as it implies a lack of attention to what is happening or is of such magnitude that this can be validly inferred, as has been considered by different integrations of this Tribunal, for example, in vote number 166-2015 of 1:10 p.m. on February 2, 2015 (Arce, Campos, and Solís) in which it was stated: "It is important to clarify and underline that for this criminal sentence appeals chamber, the sole circumstance that a judge makes a simple, occasional, and rapid consultation of the cellular phone (for example, of messaging), does not necessarily imply the nullity of the sentence, but rather the problem arises when –as in this case– the use of the device is very repeated and extends over important periods, so that the distraction affects the ability to perceive or observe essential elements or events of the trial, necessary for an adequate understanding of the questions to be resolved" (in the same sense, vote number 2015-388 by Jiménez, Solís, and Gullock) or in vote 2014-831 (Chinchilla, García, and Gullock) in which it was mentioned: "...although in the audiovisual file (...) it can be noted that said official, in effect, reads a file, dialogues with the judicial technician, reviews documentation, and makes a note on her cellular device, this cannot lead to concluding, as the challenger does, that such acts meant a rupture of the principle of concentration or that the Tribunal had disintegrated, since all those acts are compatible with the function of directing the debate, without there being any additional element to even think that the file she was reading was different from the one pertaining to this case, because she consults it when the indictment is being read and during the preliminary statement and testimony of the offended party, which is necessary to do to determine if it is necessary to introduce pieces from the case file for the purposes of the interrogations. Note that the dialogue with the Court's assistant is very brief and usually occurs, not only in this case, to attend to matters specific to the case, such as the order of locating witnesses, verifying that the recording is being made, giving instructions to members of the public or trial guards without the continuity of the debate unfolding, etc., and the existence of smart communication devices means that they are not exclusively for receiving and sending text messages or calls, but allow for taking notes, making annotations, and even displaying legislation stored digitally. In the same way, it is evidenced that, as the Prosecutor's Office correctly points out, the cited official even intervened by asking clarifying questions and moderating the debate, so she showed herself, at all times, attentive to what was happening in the trial, without the defense having invoked a single argument, objection, or activity that was not attended to opportunely and that allows evidencing that the invocation of this supposed defect aims at the protection of a substantive matter, principle, or ulterior end and not the simple invocation of nullity for its own sake, in attention to the simple, empty respect for forms. Likewise, although at other moments during the development of the hearing two of the judges exchanged words among themselves and on another occasion (...) all three did so, it was for a very short period without such behavior implying, unfailingly, a lack of attention to what was happening and loss of concentration, although it certainly must be agreed that it is a bad practice, since it is disrespectful to the persons who continue to hold the floor.» However, it does not entail any defect that would permit declaring any nullity, which is why this matter is not even similar to the precedent invoked by the appellant..." (See, in a similar vein, vote number 2015-118: Salazar, Jiménez and Rivera in which the judgment was annulled due to manifest inattention). That is to say, although as a matter of respect, courtesy, and responsibility, cell phones or tablets should not be used in the courtroom to view or answer messages and, if they must be used for matters pertaining to the hearing itself, the other procedural parties should be advised —for transparency— that they are being used for that purpose, this does not mean that necessarily every time this rule is broken it implies the nullity of what was decided, since it has long been insisted that nullity cannot be decreed for its own sake but only insofar as the form (in this case, attention) safeguards a greater guarantee that is demonstrated or reasonably presumed to have been breached (the attention to and assessment of the evidence). In this vein, the audiovisual file was observed (...) and it is determined that although (...) it is observed that the judge (...) is leaning back against the backrest of his chair, apparently with his eyes closed, that does not mean he was distracted or asleep or that he was not paying attention to the questioning (...) said judge adopts that position from sequence (...) but that did not prevent him from saying some phrases to the presiding judge (at the beginning of the statement) or making different movements (drumming his fingers, running his hand over his face, removing his glasses, etc.). Even in sequences (...) he makes different movements (looking at the female judges when they speak among themselves) which denotes that he was paying attention. In any case, during the approximate three minutes that he remains in that position, besides the various movements he made, what was taking place were clarifying questions from one of the female judges to the officer, that is, the bulk of this deponent's testimony had already been presented. (...) since the gestures of supposed lack of concentration pointed out by the appellants concern very specific and very brief moments, at times when no decisive or irreproducible act was taking place, the appropriate course is to reject this argument which assumes that judges must remain immobile, almost like automatons, ignoring that they are human beings who also get tired and that paying attention does not necessarily mean they must remain in rigid positions." In this matter, during the timestamp sequences indicated by the appellant, the cited judge, although it could be accepted that he kept his eyes closed (which is also not clear from the recording), did not show that he was disconnected from what was happening because in file 11112020020415-2 (DVD 2) in sequence 1:06:00 to 1:06:40 (which is only forty seconds long) the presiding judge holds his chin with his hand, moves the other, and finally settles back in the seat, while one female judge asks a question and the other maintains a listening position; at minute 1:07:50 the presiding judge is observed motionless but it is not determined that he is asleep or dozing (beforehand, he had even removed his mask and taken a drink of water from a cup); in sequence 1:21:45 to 1:24:00 while one female judge types, another reviews documents, and the presiding judge, although he is leaning back in his chair, adjusts his tie with his hand and makes side-to-side head movements as if looking at the papers his colleague is reviewing, all while the questions concern nicknames, people who visit the site, etc.; and at the timestamp counter from 1:30:15 to 1:31:25 the judge is seen reading documents from the case file and turning pages, crosses his arms, fixes his hair, changes position, or remains immobile. Finally, in file 08022021090810-2 (DVD 5 with the number manually corrected) starting from sequence 26:10, the presiding judge rests his head on his arm and remains that way until minute 09:00 when an attorney intervenes, all while the accused was explaining how he obtained his visa and the project with sister parishes in the United States; and regarding minutes 54:35 to 57:00, while the female judges observe their respective monitors, the presiding judge remains passive (except at the end when he adjusts his mask), almost without movements, all while the accused refers to a gentleman from the community unrelated to the trial and that the children of said gentleman slept in bunk beds at the parish while their father was hospitalized. Ultimately, neither are the segments conclusive of inattention on the part of any official, nor were they extensive, nor are the topics decisive or unaddressed in the judgment. Therefore, these complaints must be rejected.

**III.-** As a **third ground of appeal by the defense counsel**, he alludes to insufficient intellectual evidentiary reasoning since, in his view, the court's reasoning does not go beyond being a sum of empty phrases that never materialize into logical reasoning based on rational arguments. He states that although the judgment need not be a literary piece, in this case the document presented countless orthographical errors (more than 300 mistakes) and formal errors (of the 98 pages of the judgment, 70 are transcripts) and that this is an indication of the argumentative deficiency. He recounts that in the case there are two offended persons and one sexual crime is attributed against a minor and another to the detriment of a person of legal age. In relation to the conviction for the acts committed to the detriment of [Nombre 005]., he transcribes part of the reasoning and adds that said offended person was not consistent, clear, or precise and was discredited by exculpatory evidence (prueba de descargo), which, in his understanding, was not examined. He alludes to the account of this aggrieved party (who was given full credibility); to what the accused mentioned in that regard; and comments that his statement was rendered void by the complainant's own mother (whose statement he mentions), who incurred in contradictions with him, above all regarding time, which were not analyzed, since the name of [Nombre 014] is not even mentioned. The same happened with the testimony of [Nombre 015], a version he alludes to and which, as he recounts, was only mentioned once. He says that this deponent is discredited based on documentary evidence unrelated to these facts, since the emails used to assert that he failed to tell the truth —by saying that [Nombre 005] did not live or work at the parish— are dated January 21, 2011, six years after the alleged abuses and refer to activities of the [...]. That evidentiary material, he states, was offered to prove the events of 2010, not those of 2005, which he considers extremely serious. He adds that there were weaknesses in the analysis of [Nombre 058], who was discredited for having animosity toward the offended person, which was concluded from some screenshots of WhatsApp messages. He indicates that this feeling and the affection toward the accused were admitted by the witness himself, but the latter shows he was not lying, and therefore his testimony should have been analyzed in conjunction with the rest of the evidence. The same happened with witness [Nombre 018]. He says that not only was the exculpatory evidence (prueba de descargo) not analyzed, but also the contradictions in the offended person's statement were not delved into (first he said the room was small and a mat could not fit, and then that it was very large, among others that the appellant enumerates with various citations from the ruling). Regarding the acts to the detriment of [Nombre 003]., he mentions what was proven and affirms that generic phrases are used, which do not detail the evidence, and grammatically poorly written statements with spelling mistakes are made. He transcribes a paragraph, from page 73 of the judgment, in which the court made, in his opinion, a statement of possibility, which should have implied doubt, but ended up reaffirming a certainty, and from there on he points out other comments about various paragraphs of the judgment, with transcripts thereof. He says there were no logical arguments to deny value to the witnesses and that the reasoning employed is to believe the offended person and consider everything that contradicts him as not very credible, but without analyzing content. He adds that his theory of the case consisted of stating that the complaint is part of a plan devised by [Nombre 003] and other persons to have the accused removed from his position as parish priest of Santa Marta, this as revenge for having undermined the authority and respect that said persons had in the community. He alludes to the fact that there were two individuals issuing complaints, before the formal complaint, against the priest and that, upon doing so before a superior, he met with the Pastoral Council of the place, determining that the discontent was theirs alone. He says there was a witness, [Nombre 078], whose statement is not included in the judgment, but he did appear at trial, who stated that, since his arrival at that parish, there was already discontent from those persons, without the accused being removed despite that context and without the relative of the uncomfortable parishioners resorting to the channels that were requested of him, but rather he went directly to the press. In sub-section C) of this argument contained in his brief, the appellant sets out his theory of the case (describing what each witness contributed) and comments on why this, in his view, is proven or generates doubt about the existence of the facts. He complains that the testimony of [Nombre 078] does not appear in the judgment, but it is in the audiovisual recording, and what he said about the call from a lady who conveyed to him a communal discontent with the priest, the supposed manipulation of others by him (from which only they escaped), and that a relative of an aggrieved party wanted to file an ecclesiastical complaint and in that capacity [Nombre 003] appeared, but they did not agree on the manner of processing it. He alludes to the fact that [Nombre 022] declared that his godson [Nombre 023], an altar boy at the parish, attended preschool at an educational center near the church, which is why some days he would go pick him up and keep him with him at the religious premises while the child's mother came to get him and they would leave for home. He narrated how, on August 5, 2014, officials from the Patronato Nacional de la Infancia (PANI) appeared at the parish, stating that they had received an anonymous complaint through the 9-1-1 emergency system, which indicated that the referred-to minor was being the victim of sexual abuse by the priest [Nombre 001]. This situation was also described by the accused, pointing out that he was even interviewed by the PANI officials and managed to take a photograph of the document they showed him, which is recorded on pages 482-483 of the case file. The appellant indicates that, although it is not possible to affirm with certainty that the anonymous call was made by Mrs. [Nombre 038], Mr. [Nombre 033], or [Nombre 003], there is an important indication that there was a plot whose purpose was to harm the priest, since the person who reported had information related to the ecclesiastical complaint that [Nombre 003] had filed against [Nombre 001] months earlier, because that document literally reads: "Reitera que dicho sacerdote ya tiene denuncias en la curia metropolitana y que teme por la PME" (Reiterates that said priest already has complaints in the metropolitan curia and fears for the PME). This information, of a private nature, says the appellant, could only be held by [Nombre 001] himself, the persons responsible for processing this ecclesiastical process, Mr. [Nombre 003], and those with whom [Nombre 003] shared such confidence. [Nombre 003] lived alone, in an apartment located on the same property as his aunt [Nombre 038] and her husband, [Nombre 033]. However, the PANI determined that the situation was not credible, no judicial or administrative process was generated from this intervention, and [Nombre 001] was not affected. The appellant concludes that, since on July 17, 2014, [Nombre 003] filed the canonical complaint before the Curia Metropolitana, but this did not result in the defendant's removal from the parish, they decided to make the anonymous complaint to the PANI, which was on August 5, 2014. Since the latter also did not yield the desired results, on August 8 he filed the criminal complaint and made it public through the press on August 26, 2014. Finally, the goal of removing Mr. [Nombre 001] from the parish of Santa Marta is achieved. On August 28, 2014, two days after the story of [Nombre 003]. was published in the newspaper La Nación, Mr. [Nombre 005] appeared to file a criminal complaint against [Nombre 001] for events that occurred in 2005. According to the statements of [Nombre 005] himself and [Nombre 003], this was for the purpose of giving "more legal weight" to the complaint of [Nombre 003]. [Nombre 005] declared that he depended economically on [Nombre 001] for six years and received financial aid from 2005 until 2014, which he stopped receiving of his own volition. However, the accused tells us —the appellant continues stating— that it is due to economic limitations of the Santa Marta parish and on his own initiative that [Nombre 005] was made to see that it was no longer possible to continue helping him cover his university expenses, and this refusal made [Nombre 005] become upset. According to [Nombre 038] and [Nombre 005] himself, the latter became friends with the [Nombre 034] family through the collaboration he provided at the Santa Marta parish, since he helped them prepare classrooms for premarital catechesis and anything else they needed, which led [Nombre 038] to invite him for coffee and meals at her home, with her family, even with [Nombre 003]. This friendship of [Nombre 005] with the [Nombre 034] Mora family is relevant, continues the appellant, since [Nombre 038] acknowledged during cross-examination that it was she who told [Nombre 005] that [Nombre 003] had filed a complaint against [Nombre 001]. Furthermore, she told [Nombre 003] to call [Nombre 005], because apparently something had also happened to him with [Nombre 001]. The appellant says that the relevant role of Mrs. [Nombre 038] in this entire case emerges from the evidence presented. He adds that once [Nombre 005] appears to file a complaint, he affirms that the young man [Nombre 035]. was also abused, as he said he saw [Nombre 001] touching his penis, a situation he reaffirmed at trial and provided his phone number to be contacted, but when this person appears as a witness at trial he denied those assertions, making it clear they were false. The offended person, the appellant continues saying, sought to enlist more people to file complaints against [Nombre 001], such as the young man [Nombre 066]. who received a message through the Facebook Messenger platform which came from a false profile, but they offered him 950,000 colones in exchange for filing a complaint against [Nombre 001], even saying his complaint would be more credible because he was a person very close to him. This message appears on page 486 and was acknowledged by [Nombre 066] in his capacity as witness. The appellant adds that, during the trial, both [Nombre 003] and [Nombre 005] denied being friends, but from the forensic psychosocial assessment (dictamen psicosocial forense) performed on the latter (SPPF-2015-00080, visible on page 136 of the case file), it emerges that [Nombre 005] acknowledges [Nombre 003] as his friend. On page 137, third paragraph, it is indicated that a friend named [Nombre 003] told him that he had suffered an alleged rape by the same parish priest and asked [Nombre 005] to tell what had happened to him so that both complaints would have greater legal weight. That friendship between both offended persons is plausible since [Nombre 003]. lived with [Nombre 038], his aunt, and [Nombre 005] acknowledged being a close friend of [Nombre 038]. The appellant concludes this section by saying: "Clearly it is not possible to assert with an absolute degree of certainty that [Nombre 038] and [Nombre 033] orchestrated an entire plan to achieve their goal of removing [Nombre 001] from the Santa Marta Parish at all costs and taking revenge for 'taking away their crown,' going to the extreme of instrumentalizing their nephew [Nombre 003] and their friend [Nombre 005] to file a complaint for sexual abuse. But taking into account all the information obtained through the adversary process, it is also not an automatically dismissible possibility, but rather deserved sufficient assessment by the court, which, if it considered it was not admissible even to generate a doubt, should have at least assessed it, analyzed it, and dismissed it. However, once again, the court ignores this theory completely. It simply labeled it as a 'smokescreen to reduce credibility,' even though it was presented from the opening statement as our Theory of the Case." (See appeal in the case file). He mentions that the offended persons or the accused did not appear at the reading of the judgment, but witness Carlos Mondragón did, demonstrating he was interested in the matter. He maintains, in summary, that no examination was conducted on the value of the statements in terms of coherence, contradictions, non-verbal language, body posture of the speakers, behaviors and reactions during questioning, etc., that the effort the court made to link his client does not overcome the logical iter (iter lógico), and that although there are some indications that are admitted for procedural loyalty (lealtad procesal), they are not sufficient to be certain that Mr. [Nombre 001] committed the crimes attributed to him. He states that in this case, unlike others, there was exculpatory evidence (prueba de descargo) that categorically denied the event reported by [Nombre 003]., questioned the honorability and sincerity of [Nombre 005]., and raised well-founded doubts about the intention that moved them to file complaints against his client, without delving into analyzing them. He emphasizes his claim that all the elements that supported the accused's version or raised doubts were ignored or discarded based on untenable arguments or simple arbitrariness, since it is not enough to say that the witnesses were not believed, which was, at bottom, what the judges did. He requests that the judgment be annulled and a remittal (reenvío) be ordered.

He requested that an oral hearing be scheduled. During this, the appellant reiterated these statements, presenting the theory of the case.

For his part, the accused said that everything was a matter of revenge by the referred family to get him out of the place. In responding to the appeal, the prosecutorial representative considers that the complaint should not be admitted, since, from the aggrieved party's statement given both in his complaint and in the debate, it was possible to determine, with certainty, the time frame and place it in the year in which both events occurred. He argues that the defense counsel seeks to replace the court's intellectual reasoning with a series of elements or circumstances regarding whether [Name 005] lived or not in the rectory of the parish of Los Guido, thereby giving credibility to defense witnesses who, in the judgment, were duly discredited, which makes his intellectual exercise inappropriate, since it is his own subjective and biased assessment. He adds that from the logical *iter* and the judgment's intellectual reasoning, it is possible to take the facts for which he was convicted as proven. The same technique is used to challenge the conviction imposed on the accused for the acts committed against [Name 003], as the appeal expresses a disagreement because the judgment did not admit the defense theory centered on an alleged revenge carried out by the offended party's aunt, arguments that were duly rejected by the *a quo*. He concludes by mentioning that, regarding the credibility and guilt analysis for the accused acts carried out in the judgment, it was correct, but not regarding the imposed sentence or the acquittal for one of the crimes, which is challenged in a separate appeal. The representative of Temporalities of the Archdiocese of San José said she would not comment on this appeal, and the lawyer from the Civil Defense Office of Victims did not elaborate on the matter.

**The complaint is not admissible.** In the case of the conviction, two segments of specific events were attributed to the accused: **i)** one (composed of two acts) that occurred in the *Parish of Los Guido in Desamparados* during the year **2005** when the defendant, on two different occasions, while sleeping, touched his penis or performed touching in genital areas and masturbatory acts to the detriment of the offended party [Name 005], who was then 16 years old and was one of the young people helped by the priest (it should be noted that, to his detriment, but already in the year **2010** and in the [...], the accused was charged with a rape offense, for which he was acquitted and which will be discussed in another section of this same decision). Those events, for which he was convicted, were classified as two sexual abuse offenses against a minor, and **ii)** the other event occurred in the [Name 039] in the first half of October **2013** to the detriment of [Name 003] (then of legal age) when, while they were watching a television program in one of the rooms of the rectory accompanied by a third person, the defendant proceeded to touch the offended party's genitals. That was classified as a sexual abuse offense against a person of legal age. It is true that, in this matter, the debate extended over multiple hearings that took place between November 9, 2020, and February 16, 2021 (without covering all days or both sessions in that period). It is also true that the judgment, about 98 pages long, begins its intellectual analysis from recital III, which is located on page 70, and that the rest of that text focuses on describing both the accused acts and the evidence received orally, which comprised 19 statements: that of the accused, that of both offended parties ([Name 003] and [Name 005]) and that of the following persons: [Name 038] Mora, [Name 079], [Name 041], [Name 078], [Name 042], [Name 043], [Name 044], [Name 045], [Name 046], [Name 047], [Name 048], [Name 058], [Name 049], [Name 015], [Name 014], and [Name 018]. It is also true that the judgment contains multiple spelling and typing errors. However, none of this implies, in itself, a lack of reasoning, taking into account that the majority of these testimonies refer to matters unrelated to the investigated facts, as this Chamber has been able to verify from reading the summary of those statements (which, for the most part, have been accepted by the parties and, when they have not been, have forced this court to verify the recordings, without finding significant differences with respect to said summaries). Note that a good part of the declarants refer to the fact that the accused, a priest of the Catholic Church, carried out extensive humanitarian work and social support for young people with various socio-economic problems so that they could continue their studies and that it was in this context that he became related to the offended parties; also many other witnesses mentioned that there was a kind of dispute between the accused and a married couple from one of the communities (with a certain, indirect, family link to one of the complainants), a conflict that, according to a group of witnesses, arose because they were displaced by the accused from their parish functions or because, in other versions, they wanted the priest removed as they had reports about his improper matters. None of these facts are of interest to this matter nor, hypothetically accepting or completely excluding it, is it capable of explaining, by itself, that two persons, of different origins and backgrounds, provide data related to abuses suffered to their detriment by the same active subject in different places or moments of their lives; that each of their versions is internally consistent and complements each other in certain details, nor that they coincide with the other declarants on many of the peripheral topics that the latter did delve into. That is to say, the fact that a person carries out extensive humanitarian work is not an obstacle to committing a crime, of any kind including a sexual one. The fact that a person receives help from another does not mean that, because of this, they must keep a gratitude that borders on the blurring of their dignity and, even less so, that they must face the humiliations of which they may be a victim. And, finally, the fact that there is conflict between some people (whether due to the management of religious, financial, or social matters, or because some have information about the criminal acts of the other and, on that basis, intend to generate alerts in others) does not imply that there is a spurious motive to report, and although it could be an indication, this is discarded and is insufficient to affirm such a thing, when the acts are repetitive, to the detriment of different victims (one of whom lacks a relationship with those supposedly involved in the conflict) and occur in a similar manner (regarding the taking advantage of conditions, towards males, etc.) although at different times and places (which also denotes a pattern of conduct). This being the case, the fact that, despite the duration of the debate and the amount of testimony given, the judgment is not very extensive in its intellectual reasoning has an adequate explanation and is due to the fact that most of the material given was not relevant to the case and, to that extent, one paragraph was enough to indicate why, even if the witnesses were truthful (and especially if not), this did not affect at all the credibility of the offended parties regarding events that occurred in circumstances that were not of common access, since, in the generality of occasions, they occurred without witnesses or else in the presence of a third person who was asleep or distracted. In this vein, the fact that persons who have been violated by another address the latter, publicly or privately, directly (orally or in writing) or through their family members, indicating that "he will pay" and spread the events in the community, before superiors or in ecclesiastical or judicial processes or through journalistic information, does not necessarily imply that the motive is spurious because if they have indeed been victims of events, they have reason to raise their voices and warn about what, moreover, from the religious perspective in which all participants situate themselves, constitutes a false and contradictory discourse regarding what someone in the position of the accused should do. Since that is the logic that permeates the entire exposition and the theory of the case posed by the appellant—that if it is "A" it cannot be "B" when, in these cases, "A" does not imply "B", nor the reverse, and both scenarios can perfectly coexist without being contradictory since, it is insisted, that there are disagreements between two people and the accused does not imply that two offended parties unrelated to those people are lying—this court will not delve into those aspects which are peripheral. The appellant, regarding the acts to the detriment of [Name 005], argues that the offended party was not coherent, clear, or precise, and his statement was discredited by defense evidence that was not examined, but he limits himself to issuing his own value judgments, without examining or showing the specific flaws of the resolution he attacks, nor indicating why the arguments made violate the rules of sound criticism, without this Chamber verifying, from the generality of the allegation, any specific error in the argument of the *a quo*. Neither is the omission of evidence noticeable nor does the appellant specify, except for his generic complaint, which evidence was not assessed or in which essential segments, nor is there any error in the trial court grouping all the statements referring to peripheral topics (regarding the quality of person the accused was, a matter not judged here) and giving acceptable reasons why they did not contribute to the investigated event without going deeper into it. The contradictions the appellant mentions between the offended party and his mother (who was only a hearsay and not an eyewitness), which the appellant himself recognizes have greater relevance on the temporal issue, do not change what was decided to the extent that it was the complainant who, being the victim and who directly received the acts, was in a better position to specify their occurrence, especially since for this reason he remained silent, even towards his relatives, for some time. It is also not significant if the complainant said the room was small and a mat did not fit and later that it was very large, since these are comparative references that are decontextualized, and the size of the physical space does not affect the classification of the crime or the defensive strategy, which has still been maintained despite those allusions. Similarly, the express hypothetical inclusion of the references made by [Name 014] or [Name 078] does not have the merit of modifying what was resolved since, it is insisted, neither was an eyewitness and they only referred to details that were narrated to them or, the latter, to peripheral topics related to the accused's functions or the complaints against him and the ecclesiastical processes generated. Note that although, in the case of Muñoz, his testimony was not transcribed in the section describing the evidence of the judgment (in point 6 of page 41 of the pdf judgment, in which only the audio is referred to), that does not mean that his statement was ignored, as he is cited and the summarized content of his declaration is mentioned in different parts of the decision, without the legislation (Article 143 of the Criminal Procedure Code) requiring these references to be made in a particular place or manner. In this regard, for example, on page 94 of the digitized pdf judgment it is stated: "…*in the adversarial process, it was evidenced through the statements of [Name 038] and the church members themselves, Father [Name 079] and [Name 078], the insufficient supervision exercised over the actions of the civil defendant [Name 001], which were even known to the Church before July 10, 2014, without actions being taken to control what was happening and even to correct the situations that occurred, and, conversely, a position was taken to silence what was known, protected by the doctrine of forgiveness that governs the Catholic Church*". The fact that [Name 015] was mentioned only once in the judgment also does not affect the validity of that decision since it is not the quantity of references, but their content, which must be assessed and, in the case of that deponent, the court did not find him credible because "*…from the statement of [Name 058] elements of importance were extracted, which even contradict what was said by other witnesses, such is the case of the affirmation that in the room there was a matrimonial bed used by the father and not as indicated by the defendant, [Name 018], and [Name 015], that they were three single beds, or the presence of [Name 005] sleeping in the place despite the fact that all defense witnesses denied that he resided in the place, or even worked in the parish church, when emails from the defendant addressed to give instructions to [Name 005] about activities specific to the parish were provided, which are consistent with a person who works or provides a service in the place, such is the case of the email dated January 21, 2011, which reads: "The Third Catecumenal Community of Hatillo has requested the Llano chapel for a gathering. Tell them that yes: [Name 054] [Value 001] or [Value 002]. Then inform the persons in charge of the Chapel, Doña [Name 055] as sacristan and [Name 056] from the board. In Poas de Aserrí on Saturday the 29th, a MASSIVE CROWDS UNITE WITH JESUS march will take place at pm, organized by Christian churches including the Catholic one. Just so you know in case anyone asks. On Thursday, January 27th, I must be at the Police Delegation. Write it in my agenda and remind me, please" (sic). Contradictions that in the same sense are reiterated with expressions via email such as the email that Father [Name 001] sends to [Name 005] on December second, namely: "Thank you, I feel very well, you are doing your job well, I am even taking care of paying the house to [Name 058], your cell phone, and yourself. That is the [Name 005] that I like, the one who does something productive, for the rest, for yourself, I even feel like you should enter University, as if I were the one who is going to enter. I love You." (sic) **Demonstrating that he paid for the house where he resided, a situation that has been denied during the interrogation at trial, and was even the basis for discrediting the offended party who at all times has been portrayed as an interested party taking advantage of others.** All these elements of evidence, as has been set out, were analyzed by the Court comprehensively and in the terms set out allowed it to decide to give total credibility to the offended party's statement, discarding the version of the facts established by the defense, both technical and material, which in itself has been contradictory, imprecise, and clearly forced to justify compromising situations that were impossible to hide despite the large amount of testimonial evidence that was received and with which an attempt was made to create a fog regarding the existence of the act and the credibility of the offended party, who logically, and due to the nature of the crime and the dynamics in which it was executed, **is the only one who could establish the spatial and temporal circumstances of the act and essentially the modus of execution of the illicit act** that has been taken…*" (emphasis supplied). Note that, from what is transcribed, it is extracted, first, why the defense witnesses were not credible and, therefore, why their contradictions were not explored in greater depth, but, additionally, it is possible to verify that the reference made to the email that the defense reproaches has the purpose of highlighting the credibility of the offended party's version, referring to the fact that he did provide support in the parishes where the accused worked (he mentioned several) and that the latter did pay for his house and studies, a thesis attacked by the defense. Then, although the email is from January 21, 2011, six years after the alleged abuses and refers to activities of the [...], from that material the closeness between both subjects is inferred and it supports the offended party's thesis more than that of the accused. The principle of community of evidence implies that one element, once offered and admitted, can be used for different purposes, so that, while that material could have been offered to prove facts from 2010, it does not prevent its use and drawing indications regarding the previous or different events. Regarding [Name 058], the court, contrary to the appellant's complaint, was extensive in its analysis. On page 78 of the digital pdf judgment, it reads: "*…the statement of [Name 058] was received, who established his arrival at the Santa Marta parish at the end of October of the year two thousand, however, he indicated he remembered that the defendant [Name 001], together with [Name 059] and the offended party [Name 003], were watching television in the bedroom, affirming he did not witness anything strange, but rather that he simply saw Father [Name 001] leave the room and some time later the offended party and [Name 022] speaking normally, placing himself in a place and time that the aggrieved party referred to as being unoccupied at that moment. A situation that is considered by this Court, **interpreting complacency on the part of this witness in contradicting the aggrieved party's statement regarding the acts generated to his detriment, which is due to this witness's link with the defendant**, [Name 001] being the one who provides him with help, meaning housing and food when he had to leave his home due to the constant problems generated in his home caused by his father's involvement in drug trafficking activity and the domestic violence of which they were frequently victims.

This situation allowed him to succeed in his studies and later acquisition of means of subsistence, making it clear that the father <em>[Name 001]</em> was always present in his life as an option for support and backing, evidencing that from the beginning of this process his support for the father was such that he even confronted <strong><em>the complainants, trying to discredit them, diminishing their credibility "per se," so that before this Court, he appeared as a witness clearly inclined to benefit the accused, to the point that he had to acknowledge that he used highly derogatory and denigrating phrases against those who were against the father </em></strong><strong><em>[Name 001]</em></strong><strong><em>.</em></strong><em> Added to the above, </em><strong><em>the defense itself contextualized the dynamic of the young people with the father </em></strong><strong><em>[Name 001]</em></strong> <strong><em>, including on the basis of solidarity, companionship, and love of neighbor that they profess</em></strong><em>, for example, they celebrated birthdays, sometimes went out, had lunch together in the same way, like that very day, since </em><em>[Name 059]</em><em> declared that he "felt bad" for not inviting </em><em>[Name 003]</em><em> for a plate of food because it was lunchtime, </em><strong><em>so the Court does not trust the account of </em></strong><strong><em>[Name 058]</em></strong><strong><em> because how can one believe that that day his peers, together with the father </em></strong><strong><em>[Name 001]</em></strong><strong><em>, could have lunch and watch a movie in the only bedroom where there is cable television service in the Parish House and would exclude him, that is not expected</em></strong><em>, unless the young man </em><em>[Name 058]</em><em> was not in the place. Just as it is also not logical that he was busy looking at some magazines and that because of that he missed the access to the movie, as if he easily had another television with that service, which was denied by the accused </em><em>[Name 001]</em><em>, who said that cable television was exclusive to his room. Likewise, in case of overcoming these contradictions, </em><strong><em>how can one trust that a person who was outside the room focusing his attention on some magazines and at the same time finding out what was happening inside a room that hardly had visibility</em></strong><em>. Hence, all the previous circumstances lead the Court to conclude that his statement has no credibility whatsoever." </em>(Emphasis supplied). Note that the trial court not only discounted the value of his declaration due to feelings of animosity towards the witnesses, but also due to the contradiction with the defense evidence itself and the inconsistencies of his own account, without this court determining any irregularity in the scrutiny performed, which adhered to the rules of logic, experience, and elementary psychology, all of which integrate sound criticism. The same occurs with the witness [Name 018] who, on page 82 of the pdf sentence, is used by the trial court to partially support the version of the victim (the closeness of youths at social risk with the defendant) but, in turn, deny him credibility in other aspects where he was imprecise or complacent, and, finally, all those witnesses are scrutinized together, stating: «...<em>it is from this point that the Court detracts credibility from the defense witnesses </em><em>[Name 018]</em><em>, </em><em>[Name 066]</em><em>, </em><em>[Name 063]</em><em>, </em><em>[Name 064]</em><em> and </em><em>[Name 048]</em><em>, who at all times sought to portray </em><em>[Name 005]</em><em> as a deceitful person, self-interested, and a bad human being who, faced with the father's negative responses to giving him more help, decided to report him, falsely attributing criminal acts to him, even in contradiction with documentary evidence that was brought to the case file, which was attempted to be decontextualized, giving it a different content from what, in the Court's opinion, actually occurred. Such is the case of </em><em>[Name 064]</em><em> and </em><em>[Name 066]</em><em>, witnesses from whom it was possible to infer that they presented total animosity towards the victim, evidenced by the text messages indicated: "In a message sent by WhatsApp to the group called "</em><em>[Name 081]</em><em>" in which it states: "Mae cago (sic) en su madre pedaso (sic) de hijueputa y me alegro mucho que su abuela se muriera sabe que me cago en el vidrio del ataúd de su abuela malparido </em><em>[Name 005]</em> <em>" and even made publications on social networks to the general public: "como pueden haver (sic) personas tan hijueputas en este mundo que se le dan (sic) de comer y muerden la mano del que les da de comer que hablan sin saber … Nadie es culpable has (sic) que se demuestre lo contrario malditos fariseos en esta vida todo se paga…Son como las culebras, pero muy sencillo las culebras se matan pizoteando (sic) la cabeza… </em><em>[Name 005]</em><em>" entering into public discussions with a person named </em><em>[Name 070]</em><em>, a person who responded: “otro mae como le dije a </em> <em>[Name 068]</em><em> ahora digame (sic) en q (sic) me ayudo ese mae a mí? En nada papi para eso siempre he bretiado (sic) para no tener que dar nada a cambio de favores y no lo dije yo lo dijo el que lo denuncio!”“ </em><em>[Name 070]</em> <em> Mae yo hablo xg le creo a </em><em>[Name 005]</em><em> y si resulta mentira cosa g dudo yo voy a ser el primero en disculparme públicamente mientras no!!” (sic) </em><em>[Name 064]</em> <em>: “Que más que </em><em>[Name 005]</em><em> cuando viví con él porque el hace todo eso porque como él lo encontró robando plata de la iglesia y le quitó toda ayuda por eso </em><em>[Name 005]</em> <em> esta doido por él tiene que agradecerle por que por esa persona él tiene una carre” </em>(sic) <em> “Jaja siga hablando sin saber cómo te dige espero muy pronto tus discutpas ha esa persona y por este medio culebra” (sic) Y usted no es nadie para juzgar no juzguéis porque serás gusgado” </em>(sic) [Name 070]<em>: “Si mae ahora todo mundo busca vengarse inventando cosas pff ni q la gente fuea estúpida para no darse cuenta como están las varas pero igual para eso está la ley para gadar en el asunto y se haga pagar a los responsables en caso de g sea. (sic) y en el caso de </em><em>[Name 066]</em><em>: who participated in these dialogues stating: “esto es así </em><em>[Name 058]</em> <em> como mierda que </em>es ese perro que muerde la mano que le da de comer” . Elements that were considered in relation to (sic) the objectivity and credibility of the witnesses who were received during the adversarial proceeding and allow explaining the reason for their complacent statements towards the defense's version, who with "in personae" fallacies, attempted to eliminate the existence of the fact that has been deemed accredited. However, from the declaration of [Name 058] elements of importance were extracted, which even contradict what was said by other witnesses…» (Digital judgment, pages 85-86 of the pdf; emphasis is our own; spelling errors are from the original documents). As can be noted from the transcribed text, not only did the trial court not disregard the referenced evidence, but it analyzed it as appropriate, noting the interest (which is not the same as acknowledging it as evidenced by attitudes as unobjective as the insults towards the victim) that some defense witnesses assumed, a sufficient reason to deny them credibility, but which, as if that were not enough, was also linked to contradictions between them and internal ones of some. Finally, the fact that on the day of the reading of the operative part neither of the two victims attended, while the subject of [Name 072] did, who, along with his wife, were the only ones who complained about the priest, does not imply any irregularity or indication of the falsity of their declarations, as it is in any person's interest to verify what is resolved in a criminal proceeding that involves figures from their community and for which, they even intervened by taking steps regarding what was considered the common good. For all the above, the arguments raised do not have the merit to modify what was decided and must be rejected.

**IV.-** In the **first argument of the appeal filed by the Public Prosecutor's Office**, a violation of due process is alleged due to an erroneous application of the principle of correlation between accusation and judgment, which resulted in the non-application of the substantive rule, specifically Articles 156 and 157 of the Penal Code. The appellant maintains that the defendant was acquitted for the fourth event of the accusation (where [Name 005] was listed as the victim) because it was considered that, from the wording of said event, it was not possible to extract the accusation required by the criminal type of rape (violación). However, for the appellant, that reasoning is unfounded. It transcribes what was stipulated, in that regard, in the prosecutorial document and considers that both from there and from the complaint and the declaration at trial given by the aggrieved party, it is possible to determine that the accusation fits the crime of rape (violación), as the circumstances of time, mode, place, and the aggravating factor derived from the accused's condition as a priest are described, which generated trust in the victim so that [Name 001] abusively carried out the action of introducing his penis into the victim's anus. Contrary to what the trial court indicates, in the appellant's opinion, it is not required to state that the active subject performed the conduct with the intent to "rape" ("violar") since the simple wording of the criminal type makes direct allusion to the verb to penetrate. It considers that the accusation does describe that typical action and that, even by removing the phrase "*with the intention of sexually abusing the aggrieved party*" from the accused fact, the result would have been a conviction for the crime of rape (violación), since the accused's right to defense was never violated. It ends by saying that, regardless of whether the active subject's purpose was to abuse or rape (violar), one does not exclude the other, since, in the case of sexual crimes, the criminal actions will always be abusive and will always have a sexual intention. It requests that this part of the decision be annulled and a retrial ordered, keeping the judgment unaffected regarding the conviction for the remaining crimes. *The argument was reiterated at the hearing.* When answering the appeal, the defender requested that the appeal be declared inadmissible (which has already been resolved in the first sections of this judgment). The representative of Temporalities of the Archdiocese of San José said she would not rule on this challenge, and the lawyer from the Victims' Civil Defense Office also did not do so. **The complaints are not valid.** The crime of rape (violación) attributed to the defendant was to the detriment of the victim [Name 005], was located in **2010** in the [...] and was described as follows: "*1. The offended person [Name 005]. was born on September 3, 1988 (…) 4. Subsequently, without being able to specify the exact date, but in the year 2010, one day at night, the victim [Name 005]. was lying down in his bedroom in the [...], at which time the accused here [Name 001] appeared, who **taking advantage of the relationship of trust established with the aggrieved party, as well as his power relationship as he was the Priest**, with the intention of sexually abusing the aggrieved party, lay down next to the aggrieved party and abusively pulled down his boxers and immediately penetrated his anus with his penis until ejaculating.*" (The name is replaced by the initials). This accusation allows determining that, on the date of the events, the victim was of legal age (22 years old), did not have any disability condition, nor is it accused that the event was committed with violence against persons. This is important because, based on those circumstances, the trial court determined that the prosecutorial accusation did not attribute the condition of vulnerability that the defendant was said to have taken advantage of. After making extensive doctrinal and jurisprudential references on the relevance of the accusation and its normative support, and copying the accused facts, the trial court justified the acquittal in the following arguments set forth in recital II.4 (page 87 ff. of the pdf judgment): «*Fact that it sought to conform to the provisions of Article 156 of the Penal Code, which (…) establishes as a constitutive action of the crime "carnal access" under certain assumptions; the first, minority of the victim, which in the present case does not apply because in the year two thousand ten, [Name 005]. was twenty years old, **the second, when there is vulnerability of the victim, inability to resist, and this is taken advantage of by the active subject to access the victim or make them access, an element that in the specific case is not described in the accusation** that is made against the defendant, the Public Prosecutor's Office erroneously declining, in the Court's opinion, by describing in the accusation elements typical of sexual abuse and not those that corresponded to the typicity of rape (violación), which is in no way remedied with elements of aggravating factors established in Article 157 of the same normative body, such as the power relationship or that of a priest, as they are not described in the current norm and in all cases, for an aggravating factor to be established, the base type must exist. Thus, in the case under analysis, the Public Prosecutor's Office incurs a serious error when imputing the fact, which affects the possibility of this Court being able to deem it accredited, because, its correction at this procedural stage (trial) and by the same sentencing Court, implies a violation of the principle of (sic) correlation between accusation and judgment, by having to modify essential elements of the accusation, due process, and the right to defense that assists the accused, so it is estimated that the appropriate course in this case is to acquit the accused [Name 001] of the crime of rape (violación) that he was being attributed to the detriment of [Name 005].*» (Emphasis supplied). This Chamber agrees with the position of the trial court. Note that in the facts of the prosecutorial document, although it is mentioned that the defendant used his relationship of trust and power, being a priest, this is part of the aggravating factor for rape (violación) stipulated in numeral 157, subsection 8, by indicating: "*Prison shall be twelve to eighteen years when: (…) The author performs the conduct prevailing himself of a power relationship resulting from the exercise of his position, and this is performed by religious ministers, spiritual guides…*" However, for an aggravating factor to exist, the assumptions of the base type must be met, which stipulates: "*Article 156.- Whoever makes another access or has carnal access orally, anally, or vaginally, with a person of either sex, shall be punished with a prison sentence of ten to sixteen years, in the following cases: 1) When the victim is under thirteen years of age. **2) When taking advantage of the victim's vulnerability or when the victim is unable to resist.** 3) When bodily violence or intimidation is used. The same penalty shall be imposed if the action consists of introducing one or more fingers, objects, or animals into the victim's vagina or anus, or forcing the victim to introduce them themselves.*" (Boldface supplied). Although it is on the basis of the assumption of subsection 2) that the prosecuting entity has intended to base its case, it turns out that it never described, in the facts of the accusation, what that vulnerability of the victim or their inability to resist consisted of, and it is not enough that it was proven that both in the complaint and in their declaration at trial they said they were depressed, crying, or seeking comfort; rather, it was necessary that the prosecuting entity stipulate it in the accusation. In other words, although the victim, credibly, stated: "*In two thousand ten I had a girlfriend (…) I felt very bad, I was unmotivated (…) I curled up in bed, I just wanted to be there because I felt bad, I took off my clothes to sleep, I was left just in boxers and shorts, I took off my pajamas, I settled on my left side, I was in a fetal position, curled up, I felt sad, wanting to cry, I didn't feel well, it was about ten at night (…) that room was very dark, light off, door closed, just without a lock. When I was curled up, the door is heard and it was [Name 001] with his usual sleepwear, a shirt and boxers, he brought a drink, he sits on the bed to see what's wrong with me, he thought it was about the turtles, I told him what happened with the girl, he leans back behind me, in that trust of so many years of sharing, words of support, I'm going to relax, I rejected the drink. I tasted it, spicy, I can't stand spicy, I rejected it, I sat up, not wanting to see him, I turned around. He settled in, we all called him Pa, when he lies down I don't know how much time passed, he behind me, in front what I had was the wall, me with my back turned, he lies down behind me, I feel it's normal, when he feels bad I lie down beside him, I think he's going to talk, when I realize he pulls down my boxers, I feel confused, he penetrates me with his penis in the Anus, that lasts a couple of minutes, he pulled my boxers down completely, as he lowered my buttocks with one of his fingers, I'm 1.89 meters tall, [Name 001] is about 1.70 something, no more than 1.75, I remain the same, leaning on this side on the (sic) mattress, I didn't want to move. I just wanted the day to end.*" In the prosecutorial document, it was not described that he was in a condition of vulnerability due to depression from an emotional breakup and that the defendant took advantage of that. To deem it proven as such, without an accusation stipulating it, would be a flagrant violation of the principle of correlation between accusation and judgment, as the trial court correctly indicated, referring even to jurisprudence of the Inter-American Court of Human Rights. The appellant seems to have misunderstood the trial court's argument, as it does not criticize the failure to use the word "rape" ("violación") nor that it be indicated that the conduct was committed with that particular intent. What is criticized is that it was not described what the grounds for the configuration of the base type consisted of, without which one cannot speak of an aggravating factor, and it cannot be considered that, lacking this, the right to defense is not affected, since it was essential so that the circumstances are not modified, as has been attempted in this venue. It is not true that, in the case of sexual crimes, the actions will always be abusive, as this case refers to adults who have disposition over the protected legal interest. For that same reason, even if it was not accused as such, it could not be considered that a sexual abuse was configured either.

The type corresponding to the date of the facts for sexual abuse against persons of legal age stipulated: </span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">"</span><span style="font-size: 11pt;"><em>Article 162.- If the abuses </em></span> <span style="font-size: 11pt;"><strong><em>described in the previous article</em></strong></span><span style="font-size: 11pt;"><em> are committed against a person of legal age, the penalty shall be two to four years of imprisonment. The penalty shall be three to six years of imprisonment when: 1) The perpetrator </em></span><span style="font-size: 11pt;"><strong><em>takes advantage of the vulnerability of the offended person</em></strong></span><span style="font-size: 11pt;"><em>, or said person is unable to resist or bodily violence or intimidation is used. 2) The perpetrator is an ascendant, descendant, sister or brother of the victim. 3) The perpetrator is an uncle, aunt, nephew, niece, or cousin of the victim. 4) The perpetrator is the stepmother, stepfather, stepsister or stepbrother of the victim. 5) The perpetrator is the guardian or the person in charge of the education, care, or custody of the victim. 6) The perpetrator carries out the conduct against any of the relatives of their spouse or cohabitant, indicated in subsections 3) and 4) above. 7) The perpetrator takes advantage of their relationship of trust with the victim or their family, whether or not a family relationship exists." </em></span><span style="font-size: 12pt;">(Thus reformed by Article 1 of the Law "</span><span style="font-size: 12pt;"><em>Fortalecimiento de la lucha contra la explotación sexual de las personas menores de edad mediante la reforma y adición de varios artículos al Código Penal, Ley Nº 4573, y reforma de varios artículos del Código Procesal Penal, Ley Nº 7594</em></span><span style="font-size: 12pt;">"; law No. 8590 of July 18, 2007). Note that vulnerability is an aggravating factor. Therefore, the description and proof of the circumstances of the base type were required, that is, of the one referred to in Article 161 of the Criminal Code, a numeral that had to be fulfilled in all its elements except for the age of the victim, who was already of legal age. At that date, said numeral stated: </span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">"</span><span style="font-size: 11pt;"><em>Article 161.- Sexual abuses against minors and incapable persons. Whoever abusively performs acts for sexual purposes against a minor or an incapable person or forces them to perform them on the agent, on themselves, or on another person shall be punished with a prison sentence of three to eight years</em></span><span style="font-size: 11pt;"><strong><em>, provided it does not constitute the crime of rape.</em></strong></span><span style="font-size: 11pt;">" </span><span style="font-size: 12pt;">(Bold emphasis supplied). But, in this case, the facts did constitute the crime of rape, therefore, the basic type of sexual abuse was not configured. As things stand, the decision is in accordance with law and the argument must be rejected since it is the prosecuting entity that must bear the consequences of its own negligence or lack of skill when drafting the accusation, without this being able to be corrected by a jurisdictional body. </span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.47mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">&nbsp;</span><span style="font-size: 12pt;"><strong>V.- </strong></span><span style="font-size: 12pt;">In the </span> <span style="font-size: 12pt;"><strong>second ground of the prosecutorial appeal</strong></span><span style="font-size: 12pt;">, the lack of reasoning in the imposed penalty is alleged. It indicates that, from the third recital (considerando) of the judgment, called "legal analysis" (which it transcribes), the justification was given for why they opted to impose the minimum penalties for the accused crimes and for these to be considered in their simple and not aggravated form, as, in the opinion of that representation, should have been the conviction. It states that the judges departed from the </span><span style="font-size: 12pt;"><em>quantum</em></span><span style="font-size: 12pt;"> of punishment requested by the prosecutorial body, which was based on the typical classification —for the acts committed to the detriment of </span><span style="font-size: 12pt;">[Name 005]</span><span style="font-size: 12pt;"> when he was a minor— under the crime of Article 161 subsection 4 of the Criminal Code in force at the time of the facts and which punished sexual abuse with four to 10 years of imprisonment if any of the described aggravating circumstances concurred, among them that the perpetrator took advantage of their relationship of trust with the victim or their family. In the appellant's opinion, given that the accused used his condition as a priest at the time of committing the act, he took advantage of the trust with the offended party and that, plus the degree of impact on the aggrieved parties due to the manner of commission of the acts and the opprobrious consequences for the victims, made him deserving of the requested penalty. However, the judges considered that such a ground was not configured and set the minimum sanction for each crime. It considers that there was an error both in the typical classification and in the penalty. It requests that the partial nullity of the challenged ruling be declared regarding those points, but that the judgment remain intact for the rest. </span><span style="font-size: 12pt;"><em>The argument was reiterated at the hearing. </em></span><span style="font-size: 12pt;"><u>When responding to the</u></span> <span style="font-size: 12pt;"><u>appeal</u></span><span style="font-size: 12pt;">, the defense counsel requested that it be declared inadmissible (which has already been resolved). The representative of Temporalities of the Archdiocese of San José said she would not pronounce on this appeal and the lawyer from the Civil Defense Office of the Victims also did not do so. </span><span style="font-size: 12pt;"><strong>The complaint is partially admissible. </strong></span><span style="font-size: 12pt;">In this section, the appellant disagrees both because the proven facts were not considered part of the aggravated type and because of the amount of the imposed sanction —the minimum for the criminal type in force at that date according to the trial court—. Although the appellant limits herself to transcribing parts of the judgment (which contain reference to the three proven events) and refers, with particular emphasis, to the issue of minority (which only one of the offended parties had, that is, it only affects two of the three proven facts), in the end, she requests the nullity of the entire sanction, generically. For this reason, and because the transcriptions made in the appeal of the trial judgment allude indistinctly to both injured parties, this Chamber considers that the entirety of the classifications and penalties of the proven facts is being challenged and will thus address the brief (Articles 439 and 446 of the Criminal Procedure Code). For these purposes, as events must be judged with the law in force at the time they occur (Article 11 of the Criminal Code) unless subsequent legal regulations are issued that are more beneficial to the accused person (Articles 12 and 13 of the Criminal Code; 9 of the American Convention on Human Rights and 15 of the International Covenant on Civil and Political Rights), it is necessary, first, to recall what was taken as proven in the challenged decision, in order to properly contextualize the response to the complaint. Then, verify the law in force at that time. Third, rule out that any of the multiple reforms that have occurred in the matter of sexual crimes have made more beneficial retroactivity operative and, finally, address whether the determination made by the trial court was in accordance with law based on that framework and the evidence presented, without neglecting, of course, the principles of proportionality and resocialization that are transversal to punitive matters. In this order of ideas, the court convicted the accused for three crimes: </span><span style="font-size: 12pt;"><strong><em>i)</em></strong></span><span style="font-size: 12pt;"> two that occurred, on different days, during the year </span> <span style="font-size: 12pt;"><strong>2005</strong></span><span style="font-size: 12pt;"> to the detriment of the offended party </span><span style="font-size: 12pt;">[Name 005]</span><span style="font-size: 12pt;">. who, at that time, was </span><span style="font-size: 12pt;"><strong>16 years old</strong></span><span style="font-size: 12pt;"> and </span><span style="font-size: 12pt;"><strong><em>ii) </em></strong></span><span style="font-size: 12pt;">the other event occurring in the first half of October </span><span style="font-size: 12pt;"><strong>2013</strong></span><span style="font-size: 12pt;"> to the detriment of </span><span style="font-size: 12pt;">[Name 003]</span><span style="font-size: 12pt;"> (by then </span><span style="font-size: 12pt;"><strong>of legal age</strong></span><span style="font-size: 12pt;">). As observed, these are events distant in time that —for this reason, given the constant in the country of legislatively modifying the regulation of sexual crimes— makes it necessary to make allusions to different laws, so, to facilitate the exercise, the successive approach will be divided by offended parties, although in both cases the analysis scheme already proposed will be followed. </span><span style="font-size: 12pt;"><strong>A)</strong></span> <span style="font-size: 12pt;"><u>Events to the detriment of</u></span><span style="font-size: 12pt;"><u>[Name 005]</u></span><span style="font-size: 12pt;"><u>.</u></span><span style="font-size: 12pt;"> The criminal type </span><span style="font-size: 12pt;"><u>currently in force</u></span><span style="font-size: 12pt;"> regarding the crime of sexual abuse against a </span><span style="font-size: 12pt;"><u>minor</u></span><span style="font-size: 12pt;"> was reformed by numeral 1 of law No. 8590 of July 18, </span><span style="font-size: 12pt;"><u>2007</u></span><span style="font-size: 12pt;"> called Law "</span><span style="font-size: 12pt;"><em>Fortalecimiento de la Lucha contra la explotación sexual de las personas menores de edad mediante la reforma y adición de varios artículos al Código Penal, ley Nº 4573, y reforma de varios artículos del Código Procesal </em></span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><em>Penal, Ley Nº 7594</em></span><span style="font-size: 12pt;">". Therefore, it was not in force at the date of the facts (both events occurred in </span><span style="font-size: 12pt;"><u>2005</u></span><span style="font-size: 12pt;">) but it is convenient to keep it in mind in order to later verify if this modification is more beneficial (and retroactively applicable) to the accused, or not, and why. The criminal type in force today (and, it is repeated, </span><span style="font-size: 12pt;"><em>prima facie</em></span><span style="font-size: 12pt;"> not applicable to the proven factual picture, given its date of commission), establishes: </span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 18mm 0.07mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">«</span><span style="font-size: 11pt;"><em>Article 161.- Sexual abuses against minors and incapable persons. Whoever abusively performs acts for sexual purposes against a minor or an incapable person or forces them to perform them on the agent, on themselves, or on another person shall be punished with a prison sentence of </em></span><span style="font-size: 11pt;"><strong><em>three to eight years</em></strong></span><span style="font-size: 11pt;"><em>, provided it does not constitute the crime of rape. </em></span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 18mm 1.88mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>The penalty shall be </em></span><span style="font-size: 11pt;"><strong> <em>four to ten years</em></strong></span><span style="font-size: 11pt;"><em> of imprisonment when:&nbsp;&nbsp; </em></span></span></p> <ol style="margin-top: 0mm; margin-bottom: 0mm;"> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <div style="margin-top: 0pt; margin-bottom: 5pt;"> <p style="line-height: 108%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The offended person is under </em></span><span style="font-size: 11pt;"><strong><em>fifteen years of age</em></strong></span><span style="font-size: 11pt;"> <em>.&nbsp;&nbsp; </em></span></span></p> </div> </li> </ol> <div style="text-indent: 0mm; line-height: 150%; margin: 0.00mm 18mm 0.00mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;">(The previous subsection thus reformed by Article 1 of law No. 9406 of November 30, 2016, "Fortalecimiento de la protección legal de las niñas y las adolescentes mujeres ante situaciones de violencia de género asociadas a relaciones abusivas.") </span></span></div> <ol style="margin-top: 0mm; margin-bottom: 0mm;" start="2"> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator takes advantage of the vulnerability of the offended person, or said person is unable to resist or bodily violence or intimidation is used. </em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator is an ascendant, descendant, sister or brother of the victim. </em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator is an uncle, aunt, nephew, niece, or cousin of the victim. 5)&nbsp;&nbsp;&nbsp;&nbsp; The perpetrator is the stepmother, stepfather, stepsister or stepbrother of the victim. </em></span></span></p> </li> </ol> <ol style="margin-top: 0mm; margin-bottom: 0mm;" start="6"> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator is the guardian or the person in charge of the education, care, or custody of the victim. </em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator carries out the conduct against any of the relatives of their spouse or cohabitant, indicated in subsections 3) and 4) above. 8)&nbsp; The perpetrator takes advantage of their relationship of trust or authority with the victim or their family, whether or not a family relationship exists. </em></span></span></p> </li> </ol> <div style="text-indent: 0mm; line-height: 150%; margin: 0.00mm 18mm 0.00mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;">(The previous subsection thus reformed by Article 1 of law No. 9406 of November 30, 2016, "Fortalecimiento de la protección legal de las niñas y las adolescentes mujeres ante situaciones de violencia de género asociadas a relaciones abusivas.")» </span></span></div> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">&nbsp;For the year </span><span style="font-size: 12pt;"><u>2005</u></span> <span style="font-size: 12pt;"> (date of the proven facts to the detriment of this affected party), the crime of sexual abuse against minors was determined by the change that had been made to the 1973 Criminal Code by Article 1 of law No. 7899 of August 3, </span><span style="font-size: 12pt;"><u>1999</u></span><span style="font-size: 12pt;">. However, before outlining its content, it is imperative to take into account some additional data, which make the legal panorama complex. That law No. 7899 of August 3, 1999 (which introduced the criminal type that interests us, but which also incorporated other crimes, such as sexual abuse against persons of legal age) was partially annulled by the judgments of the Constitutional Chamber (Sala Constitucional) numbers </span></span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-132383"><span style="color: #0563c1; font-family: Arial;"> <span style="font-size: 12pt;"><u>9453-2000</u></span></span><u> </u></a> <span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">(as a result of a facultative consultation where the unconstitutionality of Article 16</span><span style="font-size: 12pt;"><u>1</u></span><span style="font-size: 12pt;"> of the Criminal Code was alleged) and </span></span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-134842"><span style="color: #0563c1; font-family: Arial;"><span style="font-size: 12pt;"><u>6304-2000</u></span></span><u> </u></a><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">(which resolved a facultative consultation where the constitutionality of Article 16</span><span style="font-size: 12pt;"><u>2</u></span><span style="font-size: 12pt;"> of the Criminal Code was questioned). Although the first of those decisions limits itself to indicating that "it was necessary to abide by" what was resolved in the second, in the latter an express declaration of unconstitutionality was made, although only of the criminal type that mentions adult offended parties. This caused serious confusion regarding the scope of that pronouncement with respect to the minor population affected by sexual offenses, because, on the one hand, a referral was made to this annulling vote, but, on the other, in its content, nothing was said about that provision or specific topic. In other words, this expressly decreed unconstitutionality did not affect the criminal type of sexual abuse against minors (Article 161 of the Criminal Code), but only the crime to the detriment of adults (Article 162 of the Criminal Code) since the Constitutional Chamber was emphatic in ordering: «</span><span style="font-size: 11pt;"><em>The omission of the legislator to indicate the type of sanction implies a transgression of the cited constitutional principles and properly of numeral 39 of the Political Constitution. Therefore, it is the criterion of this Chamber that the following phrases of </em></span><span style="font-size: 11pt;"><strong><em>Article 162 of the Criminal Code</em></strong></span> <span style="font-size: 11pt;"><em>, reformed by law number 7899, called "Ley contra la explotación sexual de las personas menores de edad", published in La Gaceta number 159 of August 17, 1999, are unconstitutional: a) From the first paragraph, the one that says: "The penalty shall be two to four years", b) From the second paragraph the one that says: "The penalty shall be three to six years..."</em></span><span style="font-size: 12pt;">»</span><span style="font-size: 11pt;"><em>. </em></span><span style="font-size: 12pt;">As a result of said resolution, a series of laws and constitutional pronouncements related to the criminal type of sexual abuse against persons of </span><span style="font-size: 12pt;"><u>legal age</u></span><span style="font-size: 12pt;"> would later be issued, which, however, will not be outlined in </span><span style="font-size: 12pt;"><u>this</u></span><span style="font-size: 12pt;"> section, as they are not relevant to the present matter, although they will be </span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">addressed in the </span><span style="font-size: 12pt;"><u>other</u></span> <span style="font-size: 12pt;"> one, relating to the offended party who did have the status of legal age. However, since the Constitutional Chamber (in the consultation made on Article 161 of the Criminal Code regarding affected minors) had referred to what was resolved on Article 162 of the Criminal Code (unconstitutionality of the type related to adult victims), speculation began as to whether the scope was the same for both situations (nullity) and there were various </span><span style="font-size: 12pt;"><em>interpretations </em></span><span style="font-size: 12pt;">on the subject. Finally, it was necessary to take the discrepancy to the body that originated it, that is, the Constitutional Chamber, and that is how, almost a year later, said court, through vote number </span></span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-244037"><span style="color: #0563c1; font-family: Arial;"> <span style="font-size: 12pt;"><u>10140-2001</u></span></span><u> </u></a> <span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">partially revoked or annulled (because neither was it unequivocal in the adequate use of legal language and used both terms in different parts of the decision, as if they were synonymous, without being so!) its own judgment number 9453-2000 to clarify the following «...</span><span style="font-size: 11pt;"><em>in the operative part it reads: "Abide by what was resolved in judgment number 06304-2000 at fifteen hours fifty-six minutes on the nineteenth of July two thousand."&nbsp; In said judgment (06304-00) the Chamber partially annulled Article 162 of the Criminal Code </em></span><span style="font-size: 11pt;">(...),</span><span style="font-size: 11pt;"><em> nothing was indicated in relation to Article 161 because it was not the subject of the consultation.</em></span></span></p> Consequently, judgment 09453-00, which resolved the consultation of constitutionality formulated by the Trial Court of Cartago, suffers from a clear error, as far as said article is concerned. If the body of the judgment considered that the rule was unconstitutional, it should have been so established in the dispositive part, annulling the rule from the legal system as of the first publication of the respective notice in the Judicial Bulletin and indicating the consequences of said annulment (…) The defects noted in principle should be remedied in this resolution. However, it is considered that the criterion upheld by the Chamber in relation to article 161 of the Penal Code, reformed by cited Law number 7899, must be modified and consequently judgment number 09453 (…) of the year two thousand is partially revoked. Regarding what was decided with respect to article 162 of the same Law, both the reasoning part and the dispositive part of the ruling are maintained» and, regarding the consultation made about article 161 of the Penal Code (relating to the fact that the second paragraph, on aggravating circumstances, did not state the type of penalty —“prison”— that is mentioned in the first paragraph, but only the amounts of years) it was stated: «… the consultation formulated is resolved in the sense that said article is not contrary to the principle of legality, given that interpreting the rule both from its grammatical and logical-juridical sense, there is not the slightest doubt that the legislator provided for the imposition of “prison sentence” in the case of aggravated conduct of sexual abuse against minors and incapacitated persons.» With the legal landscape clarified, article 161 of the Penal Code in force in 2005 was as follows:

«**Sexual abuse against minors and incapacitated persons** *ARTICLE 161.- Whoever abusively performs acts with sexual purposes against a minor or incapacitated person or forces them to perform them on the agent, on themselves, or on another person, provided it does not constitute the crime of rape, shall be punished with a prison sentence of three to eight years. The sentence shall be four to ten years in the following cases:* 1. *When the offended person is under twelve years of age.* 2. *When the perpetrator takes advantage of the vulnerability of the offended person or the latter is unable to resist, or bodily violence or intimidation is used.* 3. *When the perpetrator is an ascendant, descendant, sibling by consanguinity or affinity, stepfather or stepmother, spouse or person linked in an analogous cohabitation relationship, tutor or person in charge of the education, care, or custody of the victim.* 4. *When the perpetrator takes advantage of their relationship of trust with the victim or their family, whether or not a kinship relationship exists.»* Now then, the facts *attributed* to the accused stipulated: “*1. The offended person [Name 005]. was born on September third, nineteen eighty-eight, so that as of the date the events began, they were sixteen years of age. 2. Without being able to specify the exact date but during the year two thousand five, when the offended person (…) was sixteen years of age, on at least one occasion, on an undetermined day, while sleeping in the same bed as the defendant here [Name 001] at the house [...], the accused [Name 001], with the intention of abusing the aggrieved party and taking advantage of his young age, innocence, and the power relationship as a priest, abusively put his hand inside the boxer shorts and touched his penis, until satisfying his libidinous desires. 3. Subsequently, without being able to specify the exact date but during the year two thousand five, when the offended person [Name 005] was sixteen years of age, on at least one occasion, on an undetermined day, while sleeping in the house [...], the accused here [Name 001] with the intention of abusing the aggrieved party and taking advantage of his young age, innocence, and power relationship as a priest, abusively put his hand inside the boxer shorts and touched his penis, while masturbating and satisfying his libidinous desires.*” (The emphasis is supplied; the name of the offended person is changed to their initials and the fact relating to the acquittal, already referred to in another segment of this decision, is omitted). The first thing that must be pointed out, then, is that, although the accusation alludes to the defendant having taken advantage of the “young age” of the offended party, it also stipulated that the latter was 16 years old as of the date of the events, so it is probable that the reference is due, rather, to the use of an unmodified form, since the victim was in his youth, close to reaching the age of majority, an amount of years that cannot be considered “young.” This means, secondly, that the aggravating circumstance of subsection 1 (being under 12 years of age as of the date of the events, an age that would later be increased, but whose rule is not applicable either, for not being more favorable) must be dismissed. Nor is it accused or proven that any kinship relationship exists between the offended party and the defendant, so subsection 4 is not applicable in that factual segment. Likewise, when contrasting the accused facts against the regulation then in force, it must be emphasized that, at that time, the status of priesthood (or religious minister) of the defendant was not expressly stipulated as an aggravating circumstance in the law. Finally, in this series of preliminary considerations, it must be emphasized that the subsequent normative provisions (the current one and other changes introduced by article 1 of Law No. 9406 of November 30, 2016, and which were recorded when transcribing the applicable regulations as of this date) did not contemplate favorable regulations for the accused persons, since what they did was increase the penalties or the age of the victim for the aggravating circumstance to arise, as well as create more grounds for aggravation. Therefore, the exceptions to the rules of extractivity due to retroactive application do not apply and the ultra-activity or criminal type (already repealed) but in force as of the date of the accredited facts must be used. Now then, what remains, consequently, is to verify if there was an exploitation of vulnerability; if there was an inability to resist (subsection 2); if the perpetrator was the tutor or the person in charge of the care, custody of the victim or if the perpetrator asserted their relationship of trust. However, if the prosecutorial accusation that has been transcribed is observed, nothing related to vulnerability, tutelage, care, custody, or education between active and passive subjects, or the inability to resist is mentioned. What is referred to is an exploitation of the victim's innocence and his power relationship as a priest of the defendant, but this is not equivalent to that. This implies that these aggravating circumstances were not charged and, therefore, the court could not have referred to them, at least not without grossly violating the principle of correlation between accusation and judgment which integrates, in turn, the constitutional principle of due process (article 365 of the Criminal Procedure Code and vote number 1739-92 of the Constitutional Chamber). It remains to be determined, then, whether taking advantage of innocence and the power relationship as a priest (which was the only thing mentioned in the accusatory document) can be considered as part of the relationship of trust (subsection 4 of article 161 of the Penal Code in force in 2005) and how that was assessed in the judgment on the merits. In this judgment, when analyzing the legal classification and the penalty starting from the third recital (Considerando III), it was stipulated: “*Hence, in the present case, only the facts constituting the crime of sexual abuse against a minor ([Name 005]) are held as accredited, which, according to the provisions of article 161 of the Penal Code, in abstract form (…) Conduct that is held as accredited in its simple form, because the accusatory document did not describe any of the aggravating circumstances described in the rule, despite having been present in the merit case at a factual level. However, this Court is a court of law and it corresponds to it to issue the ruling with total objectivity in respect of the principles of due process, so for the purposes of violating the right to defense and the correlation between accusation and judgment, the facts of sexual abuse against a minor were established with the simple description of the referred criminal type. Under that understanding, the criminal type of “Sexual Abuse” contains a series of objective elements that describe the possible criminal conduct to be subsumed, which is complemented by the subjective type and forms the initial element of typicality. We have that the way in which this illicit conduct is expressed reaches the typical description of the same and extended to other situations that may be receivable within the principle of legality and that are not necessarily explicitly collected in numeral 161 of the Penal Code. As we shall see, the common characteristic of the crime of sexual abuse is expressed through the existence of abusive acts, which manifest in various forms and manages to gradually shape, generically, a concept of abuse capable of accommodating the various forms of appearance thereof. For its part, the protected legal interest is the sexual integrity and healthy sexual development of the minor (sic). In the specific case, the offended party (passive subject) was sixteen years old at the time of the events and the defendant [Name 001] (active subject), taking advantage of the age and innocence of his victim, performed two openly abusive actions that harmed the sexual integrity thereof, which he perpetrated during the temporal space from February to September of two thousand five, having been credited with two crimes of sexual abuse (…) the accused [Name 001], executed two typical actions protected by criminal law in that he sexually abused a minor of sixteen years of age, touching his penis under his boxer shorts while he was asleep, and on the second occasion, in addition to performing identical touching, he gently touched his penis, which was perceived by the offended party by the movement and a sensation of dampness on his back, this with the sole purpose of satisfying his impudent sexual desires. Acts that for this court were totally abusive and with a clear sexual connotation. In addition to this, it must be indicated that the defendant attempts to carry out these acts in clandestinity while the minor (sic) was sleeping in the same bed as the defendant, for being a person of his trust (…) the Court considers it proportional and reasonable to impose on the defendant [Name 001] the sanction of three years of prison for each crime of sexual abuse against a minor, which has been held as accredited (…) A penalty that is also imposed attending to the personal conditions of the now sentenced person, so that the imposed sanction is proportional to the reproach that must be made to the defendant, adjusting, of course, to the principle of resocialization implicit in the penalty and the possibility that he can reintegrate into society satisfactorily, once he reflects on his acts and the effects they produced on the victims. The Court considers that the imposed sanction falls within the parameters provided by Law and maintains the due proportion regarding the culpability of the defendant and the gravity of the illicit act.*” (Cf. folio 746 verso and following, boldface supplied). Note that what the court points out is that although it was demonstrated that there was a relationship of trust and that the defendant took advantage of the victim's vulnerability to commit the two acts, none of that was charged. Therefore, if that situation were taken into account, the principle of correlation already cited would be violated. This chamber cannot but agree with the reasoning and express its concern not only because the error (to the detriment of the victim) was set out in a poorly prepared prosecutorial document, but because the prosecutor intends to amend it, generating another error (now to the detriment of the accused), which implies, in addition, an absolute invisibilization of the principle of objectivity that should guide the action of the state prosecuting entity (article 63 of the Criminal Procedure Code). Having the status of priest or taking advantage of the condition of power does not fit into the aggravating circumstances in force at the date of the events, therefore, the applied basic type (whose punitive margin ranged from 3 to 8 years of prison) was the appropriate one and this means that the appeal, insofar as it seeks for the facts to be considered as aggravated, must be rejected. Now then, that this was the case, does not mean that this condition (of religious minister or having a position of power over the offended party) cannot be assessed within the punitive framework provided for the simple type (from three to eight years of prison). However, although it can be (since, certainly, it is not the same for a stranger to abuse another person as for someone who, due to their condition, positions themselves before the community in a position of ethical superiority and spiritual guidance to do so), the court opted to apply the minimum penalty and not increase the lower extreme, indicating that the fixed penalty (of three years for each act) was proportional to the reproach; it was adjusted to the personal conditions of the accused —which it mentioned in various parts of the decision, although not in this specific section, but which can be integrated as the judgment constitutes a unit of meaning— and alluded to the principles of proportionality and resocialization. The appealing prosecutor only outlines three arguments for a greater penalty: *i)* that there was an aggravating circumstance (a matter that was already dismissed); *ii)* that in conclusions she requested a higher sanction and *iii)* that the defendant used his relationship as a priest and the trust he inspired. This chamber considers that the decision on the punitive amount must be upheld. In the first place, it is necessary to indicate that the fact that a higher sanction was requested or that there is disagreement with the one set is not, in itself, cause to annul the sanction since there is no (subjective) right of the prosecutorial entity for a specific penalty to be imposed. The prosecutor, as a representative of a public law entity such as the Public Ministry, is a formal party (not substantial, as it does not outline its own subjective claim but only a representation of collective interests) and, therefore, is not the holder of any right. It can appeal, certainly, if it considers that the adopted decisions are contrary to law, but this is so because the legal system grants it such a possibility (principle of bilaterality of remedies) and it must outline the concrete arguments for which it disagrees with a judicial decision, two of which have already been stated as not admissible. In the second place, it is necessary to recognize that, in Costa Rican law, the issue of the reasoning of the sanction is one that incorporates certain levels of discretion which, in order not to become arbitrariness, require a greater intellectual effort (complete and derived reasoning; assessment of the guiding principles of resocialization, proportionality, etc.), but this last point does not completely eliminate margins of action for the decision-making bodies, which, as long as they comply with them, can adopt decisions that are not necessarily shared but are within their sphere of discretion. By this, it is meant that there is no absolutely objective parameter to determine why, in a specific case where the punitive ranges stipulated by the legislator are, for example, from one to six months of prison, a penalty of three months is the adequate one and not one of two or four months. There are rules, yes, to indicate if having exceeded the minimum was right or wrong (if the objective elements of the type were valued doubly, if the determination of the rule-case was not followed, if the arguments used are not acceptable according to the principles that govern us, etc.) but, outside of that, there is some space for uncontrollable discretion. This has been highlighted by this court, with various integrations. For example, in vote number 2013-2483 (L. García, R. Chinchilla and K. Jiménez) it was stated: “*It is true that, in this matter, it is not possible to establish \"tariffs\" to impose sanctions that, to that extent, as the dominant doctrine recognizes, have a high dose of discretion. However, so that this does not become arbitrariness, in borderline cases such as the present one (in which effective execution or not depends on the amount to be chosen, for example; or, in others in which the revocation of a benefit in a prior process depends on the penalty imposed in a second process, for example) it is much more demanding that the Court make a greater motivational effort by explaining a kind of \"rule-case\" (that described by the legislator and which, for fulfilling the basic objective elements, which cannot be valued twice, admits the minimum penalty) and objective parameters from which circumstances can be established to increase the punitive rigor (for example, presence of several aggravating circumstances, since the type only requires one) or to decrease it (for example, repentance that can only be used to diminish the reproach). In this last line of argument, the consideration of the resocializing end of the sanction, which our national legislator (article 51 of the Penal Code) and conventional (articles 5 and 8 of the American Convention on Human Rights) theoretically assume, is indispensable.*” Likewise, under the name of Criminal Cassation Court of San José, in vote number 2011-536 (S. Zúñiga, I. Estrada and A. Chirino) it was referred, even, that the rule-case was not enough, but that one should adhere to the “normative-threshold”: “*The rule-case would be formed by the greatest frequency of the type of criminality in question, that is, the common form of commission, without special qualifying conditions. Based on that “rule-case”, conditions are then sought that qualify (aggravate) the frequent or daily form of commission of that type of criminality. The legislator already took into account some type of “rule-case”, that is evident, and therefore included circumstances in abstract that define it and that constitute the form of criminalization, however, it is possible to think that the minimum and maximum extremes that were also included in the criminal incrimination will have to be decided between the cases that are “common” or “frequent” and those that, due to their manner of being carried out, exceed the frequent forms of the rule-case.* This type of criterion would encounter some difficulties: it depends on the judge's experience in assessing a particular group of cases; on whether they have experience—from having judged them in other cases—in the various forms of commission, and, of course, on whether their experience is sufficient to establish a basic norm of frequent criminality (case-rule). It is for this reason that Wolfgang Frisch, for example, prefers the normative criterion, and developed it based on the "normative threshold" (Wolfgang Frisch, "The direction of fact assessment for sentencing determination," published in the German journal Goltdammer's Archiv, year 1989, pp. 338 ff.; 366 f.). This normative threshold takes into account the prohibition of double counting, and does not consider, for example, cases that strictly involve commission while strictly complying with the requirements established in the definition of the offense. These latter cases, therefore, relate to those constellations of cases that correspond to the minimum of the penalty range. What exceeds those forms of commission will tend toward the maximum of the reproach." (Emphasis supplied). And this was reiterated in vote number 346-2010 of that same body. In this matter, if one follows the case-rule, it can be agreed that the conduct of a religious minister who has a relationship of trust is more serious compared to someone who does not have those conditions. However, both in this theory and in the normative-threshold theory, not only should the negative conditions of the active subject be weighed, but also the positive ones, and, in this case, from the evidence presented (which, it bears repeating, was weighed in various sections of the judgment, although not in the sentencing section, which does not prevent it from having to be integrated into this decision) it follows that: i) the accused has carried out important social work, seeking funding for people without resources, at social risk, so that they could not only obtain their food but also sources of education, and following up with them so they could obtain jobs or trades through which they acquired independence (which neither excludes nor justifies the commission of the crimes); ii) the accused has provided emotional support for people who are victims of other types of structural violence (domestic violence) to the point that the vast majority of witnesses who appeared emphasized it; iii) the accused has no prior convictions. Also, to determine the penalty, even based on the case-rule, the conditions of the crime must be weighed, and although the touching that was carried out (proven here) against the victim (the only conduct that can be examined, without considering others for which he was acquitted, since doing so would violate the principle of res judicata) was serious (to the point that they are crimes), it was not of such intensity and constant frequency as others that practice allows one to see and that, without any doubt, have a deeper impact on the emotional and traumatic sequelae of the person harmed by them. Likewise, the age at which the victim was harmed was also not as low as others that forensic experience shows and which, to that extent, also generate greater trauma and effects on the psychic apparatus and healthy sexuality. For all the foregoing reasons, weighing all these aspects and discarding the others, legally improper ones, on which the appellant bases her claim, the appeal must be rejected regarding the penalties for the crimes of sexual abuse against a minor (two crimes). Thus, the total penalty of six years for these events must be kept intact, and the appeal on this point must be rejected. B) Events to the detriment of [Name 003].: The event proven regarding this victim was classified as sexual abuse against a person of legal age (article 162 of the Penal Code) and occurred in October of 2013. The accusation charged him in the following terms: "1- Without being able to specify the exact date, but in the month of July of the year two thousand twelve, the victim [Name 003] assumed responsibility for the ornamentation of the [...], a place where he met the priest [Name 001], the accused herein, thus beginning a relationship of friendship and trust with him. 2- Without being able to specify the exact date, but in the first half of the month of October of the year two thousand thirteen, in the afternoon hours, the accused herein [Name 001], taking advantage of the relationship of friendship and trust he had with the aggrieved party [Name 003], invited him and the sacristan [Name 022] to watch a movie in his bedroom, which is inside the Parish House located next to the Church (…) a request to which the victim consented, so that, without specifying the exact time, but between two and four in the afternoon, both Mr. [Name 022] and the victim [Name 003] appeared at the bedroom of the accused herein. 3- Once in said chamber, the accused [Name 001], taking advantage of the fact that the aggrieved party [Name 003] was sitting on the bed, with the sole purpose of satisfying his libidinous desires and in an abusive manner, passed his elbow over his leg and then, with his left hand, touched the aggrieved party's penis and near his anus, over his clothing, and subsequently took out his penis and performed masturbatory movements in front of the aggrieved party." (emphasis supplied). As of today (2021) the criminal offense that contemplates this matter stipulates:

«Abuses sexuales contra las personas mayores de edad Artículo 162- Abusos sexuales contra las personas mayores de edad. Whoever, in an abusive manner, performs acts for sexual purposes against a person of legal age, or forces them to perform them on the agent, on themselves, or on another person, provided it does not constitute the crime of rape, shall be punished with a prison sentence of two to four years.

The penalty shall be three to six years of imprisonment when:

The perpetrator takes advantage of the vulnerability of the victim, or the victim is unable to resist, or bodily violence or intimidation is used.

The perpetrator is an ascendant, descendant, sister, or brother of the victim.

The perpetrator is an uncle, aunt, niece, nephew, or cousin of the victim.

The perpetrator is a stepmother, stepfather, stepsister, or stepbrother of the victim.

The perpetrator is the guardian or the person in charge of the education, care, or custody of the victim.

The perpetrator commits the conduct against any of the relatives of their spouse or cohabitant, indicated in subsections 3) and 4) above. 7) The perpetrator takes advantage of their relationship of trust with the victim or their family, whether or not a family relationship exists.» (Boldface supplied). However, this regulation came into force thanks to the approval of the sole article of the Law to Restore the Penalty for Sexual Abuse Against Persons of Legal Age, No. 9584 of July 4, 2018. It has already been stated, in the previous paragraph (and the idea must now be taken up and expanded) that the legal regulation of sexual crimes in Costa Rica has undergone multiple reforms that make the application of the law difficult and, in many cases, given the erroneous legislative technique used, rather generate decriminalization. That happened with the issue of sexual abuse against adult persons (of legal age) and without disability. The Penal Code, Law No. 4573 published in La Gaceta of November 15, 1970, originally did not contemplate the specifically regulated conduct. Although there was a criminal offense of "dishonest" abuses (article 161) in which the age of the victim was not established, it did require that one of the circumstances of rape provided for in numeral 156 ibidem be present (among which being under 12 years of age, being deprived of reason, unable to resist, or suffering bodily violence or intimidation were mentioned). The crime of statutory rape was also provided for, in article 162, which implied "consented" relations at ages where consent was admissible and which, therefore, are not related to the factual situation that concerns us. Later, article 1 of Law No. 7899 of August 3, 1999 introduced, under article 162 of the Penal Code, sexual abuse against persons of legal age, drafting a text from which the Constitutional Chamber, through judgments number 6304-2000 and number 10140-2001, declared the penalties unconstitutional, rendering the numeral inapplicable, to the extent that the sanction only stipulated a minimum and maximum, but did not indicate what its nature was: imprisonment, fine, house arrest? To correct the error, Law No. 8002 of June 8, 2000 was issued. Another additional reform was made through article 1 of Law No. 8590 (called "Law to Strengthen the Fight Against the Sexual Exploitation of Minors through the reform and addition of various articles to the Penal Code, Law No. 4573, and reform of various articles of the Criminal Procedure Code, Law No. 7594") of July 18, 2007 and the last one in 2018 (Law to Restore the Penalty for Sexual Abuse Against Persons of Legal Age, No. 9584 of July 4), which is the one in force but was not so at the time of the act (article 11 of the Penal Code). As the proven event is located during 2013, the first regulations are not of interest, but only those starting from the year 2010, an occasion on which the text stipulated:

«Abusos sexuales contra las personas mayores de edad Artículo 162.- If the abuses described in the previous article are committed against a person of legal age, the penalty shall be two to four years of imprisonment.

The penalty shall be three to six years of imprisonment when:

The perpetrator takes advantage of the vulnerability of the victim, or the victim is unable to resist, or bodily violence or intimidation is used.

The perpetrator is an ascendant, descendant, sister, or brother of the victim.

The perpetrator is an uncle, aunt, niece, nephew, or cousin of the victim. 4) The perpetrator is a stepmother, stepfather, stepsister, or stepbrother of the victim.

The perpetrator is the guardian or the person in charge of the education, care, or custody of the victim.

The perpetrator commits the conduct against any of the relatives of their spouse or cohabitant, indicated in subsections 3) and 4) above.

The perpetrator takes advantage of their relationship of trust with the victim or their family, whether or not a family relationship exists.» (Emphasis supplied).

After that, there is only one law (the one from 2018, not applicable to the case due to the date of the facts). Why was it introduced? According to its name, it is "to restore the penalty" and this was so because if one observes the first part of numeral 162 just cited (that is, through the 2007 reform, the article began by saying "If the abuses described in the previous article"). Prior to many of these changes, as is logical to think by following the numerical sequence, before article 162 there was 161, which described the prohibited conduct (sexual abuse for minors). However, as a result of legislative activism, articles with a "bis" were added. This occurred between 162 and 161, so that a 161 bis was placed, thereby changing the content of the criminal offense of sexual abuse against persons of legal age and, in doing so, the conduct was left exempt from sanction. This is better described in a previous pronouncement of this chamber, vote number 2020-1995 issued with a partially different composition from this one (R. Chinchilla, P. Vargas and A. Herrera with a note from the former two) in which, furthermore, the reasons why, despite there having been an apparent decriminalization of the conduct, it cannot be applied to this case are mentioned. Judges Chinchilla and Vargas expressed their criterion and that of various compositions of this chamber, making a detailed account of what occurred (criterion that is endorsed by the entirety of this composition): «IV. Note by Judges Chinchilla Calderón and Vargas González: The undersigned also consider it important to indicate that the proven facts date back to August 22, 2017. The current article 162 of the Penal Code, which contemplates sexual abuse against persons of legal age, was reformed by Law No. 9584 of July 4, 2018, legislation that was not in vain called "Reform of article 162 of Law No. 4573, Penal Code (…) to restore the penalty for sexual abuse against persons of legal age." This was necessary because previously, through Law No. 8874 of September 24, 2010, a modification to the criminal law was made that had the unforeseen effect of leaving this criminal offense without content since the wording prior to the current one referred to "The abuses described in the previous article" and the previous numeral that gave it content was 161 of the Penal Code. But later, with that law, a numeral 161 bis was introduced, which meant that the reference to the "previous article" referred to that 161 bis, which did not contemplate any criminal conduct. That is, between September 24, 2010, and July 4, 2018 (period during which the facts of this case are located) due to legislative error, this conduct could not be punished, at least not if the principle of legality is respected, as must be done in a State of Law, which implies the use of grammatical interpretation as the most restrictive. In this regard, this same chamber, with different compositions, through vote number 2018-1065 of August 10, 2018 (A. Solís, R. Chinchilla and R.

Obando) stated: "(B) Regarding the criminality of the offense of sexual abuse against a person of legal age, this Chamber, with a partially different composition (A. Solís, R. Chinchilla and J. Campos), has stated: \"(...) Through resolutions number </em></span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 0mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>2014-414 (Note by Judge Chinchilla), 2014-1367 (Solís, Campos and Rivera), 2015-171 (Campos, Chinchilla and García) and 2015-205 (Dissenting vote of Judge Solís), those of us who make up this Appeals Chamber ruled </em></span><span style="font-size: 11pt;"><strong><em>regarding the decriminalization of sexual abuse against a person of legal age, because numeral 162 of the Penal Code punished as such the actions described in the "preceding article"; but this -after the reform that introduced article 161 bis- by referring to the norm that preceded it, no longer punished any conduct (as numeral 161 of the Penal Code did describe it), since 161 bis did not describe actions, but rather had common provisions regarding the crimes that were located prior to it.</em></strong></span><span style="font-size: 11pt;"><em> Thus, by virtue of the principle of legality, we considered that </em></span><span style="font-size: 11pt;"><strong><em>it was not feasible to make extensive interpretations in order to maintain the validity of a crime that had been left without any content regarding the action that constituted it, concluding that sexual abuse against a person of legal age had been decriminalized due to a legislative error. However, the Constitutional Chamber, subsequent to these decisions, through resolution 2015-2675, of 9:05 a.m. on February 25, 2015, as a result of an action of unconstitutionality filed against articles 161 and 162 of the Penal Code, indicated</em></strong></span><span style="font-size: 11pt;"><em> the following: \"(...) in the case of article 162 of the Penal Code, the Chamber does not consider the principle of legality and criminality in criminal matters to be violated, taking into account that the conduct that is punished has been clearly determined in article 161 of the Penal Code. In this regard, although the wording of article 162 of the Penal Code is not very felicitous, it is not considered to injure the aforementioned principles, given that the Legislature, with the approval of Law No. 8874, of September 24, 2010, and with the introduction of article 161 bis, at no time intended to decriminalize the penalty provided for in article 162 of the Penal Code. Quite the contrary, it is evident from its wording that it refers to article 161 of the Penal Code, considering that the allusion to \"the described abuses\" only makes sense if it is linked to that legal precept, that is, article 161 of the Penal Code, which is what systematically and historically gives it its reason. In this regard, the Chamber concludes that the law, in its current terms, is sufficiently clear so that the citizen has the security of knowing which are the actions that article 162 punishes, with its referral to article 161 of the Penal Code. Without justifying the lack of rigor or legislative technique in the present case -which could well have added the norm with greater expertise or skill-, the fact is that the Latin numeral adverb bis means twice and added to any integer indicates that such number has been repeated a second time (thus, Diccionario de la Real Academia Española, 21st edition, Madrid, 1992, page 207), in such a way that, thus also </em></span><span style="font-size: 11pt;"><strong><em>it can be understood that article 162 refers to the integer 161 (which came to be complemented with 161 bis), insofar as it is evident that Law No. 8874 has not expressly or tacitly repealed the crime of 'Sexual abuse against persons of legal age' provided for in article 162</em></strong></span><span style="font-size: 11pt;"><em>. In short, what happens is that a new article was added that literarily came to be located immediately before 162, but which did not repeal or modify 161, which is still in force and is the one to which the former (article 162) clearly refers to allude to the conduct it criminalizes, with the variant that the victim is a person of legal age\". Taking into account the foregoing, </em></span><span style="font-size: 11pt;"><strong><em><u>although we do not share the criterion issued by the Constitutional Court, we must</u></em></strong></span> <span style="font-size: 11pt;"><strong><em><u>apply it, as ordered in the transcribed resolution, in attention to what is</u></em></strong></span> <span style="font-size: 11pt;"> <strong><em><u>prescribed in article 13 of the Law of Constitutional Jurisdiction, which</u></em></strong></span> <span style="font-size: 11pt;"> <strong><em><u>indicates that: \"The jurisprudence and precedents of the constitutional jurisdiction</u></em></strong></span> <span style="font-size: 11pt;"> <strong><em><u>are binding erga omnes, except for itself</u></em></strong></span><span style="font-size: 11pt;"><em>\" (Court of Criminal Sentence Appeal of the Second Judicial Circuit of San José, resolution number 1273, of 10:30 a.m. on September 8, 2016. In the same sense and from the same Chamber, resolutions number 1521, of 9:45 a.m. on October 31, 2016 and 1029, of 11:00 a.m. on August 3, 2018). This criterion is maintained by those who subscribe to this decision, and it makes more sense because, through law number 9584 published in Supplement number 136 of La Gaceta number 137, of July 30, 2018, article 162 of the Penal Code was modified and its content states: \"Whoever abusively performs acts with sexual purposes against a person of legal age, or forces them to perform them on the agent, on himself/herself or on another person, provided it does not constitute the crime of rape, shall be punished with a prison sentence of two to four years\". However, this provision could not be applied to these events, since it is a subsequent norm, which would infringe the principle of non-retroactivity of criminal law, which is contemplated in article 34 of the Political Constitution when it indicates that: \"No law shall be given retroactive effect to the detriment of any person, or of their acquired patrimonial rights or consolidated legal situations\"; in addition, numeral 11 of the Penal Code establishes that \"Punishable acts shall be judged in accordance with the laws in force at the time of their commission\", whose exception is the existence of a more favorable subsequent law, but this is not the case that arises in this matter. Notwithstanding the foregoing, as noted above, </em></span><span style="font-size: 11pt;"><strong><em><u>due to the existence of a binding resolution issued by the Constitutional</u></em></strong></span> <span style="font-size: 11pt;"><strong><em><u>Court (article 13 of the Law of Constitutional Jurisdiction that sustained the</u></em></strong></span> <span style="font-size: 11pt;"> <strong><em><u>validity of the conduct before that reform), this Chamber must apply article</u></em></strong></span> <span style="font-size: 11pt;"> <strong><em><u>162 of the Penal Code (in its wording in force at the date of the facts),</u></em></strong></span> <span style="font-size: 11pt;"><strong><em><u>establishing that the description of the typical conduct is in numeral 161 of that</u></em></strong></span> <span style="font-size: 11pt;"> <strong><em><u>same legal body</u></em></strong></span><span style="font-size: 11pt;"><em>." (The highlights are supplied). This criterion is shared by the undersigned who, then, consider that the conduct </em></span><span style="font-size: 11pt;">(...)</span><span style="font-size: 11pt;"><em> was atypical at the time of the facts, that is to say, due to the legislative error referred to above, at that time neither the preceding criminal type could be used (which referred to a previous article to give it content which was modified when the bis was introduced and that content eliminated) nor the current one (since such a thing would imply a retroactive application of criminal law, which is not constitutionally or conventionally possible). However, as there is a binding vote of the constitutional body that must be applied, it must be obeyed, so the undersigned persons record our dissenting responsibility for the manner in which said conviction is given.</em></span><span style="font-size: 12pt;">" (The highlights are supplied). In summary, for this court, in the period from September 24, 2010 (when law No. 8874 was issued, creating article 161 bis of the Penal Code) and July 4, 2018 (when Law No. 9584 of July 4 was issued to re-establish the penalty for sexual abuse against a person of legal age) the cited conduct was decriminalized and as it is within this period that the facts of the present case (2013) are located, it would be appropriate to exonerate the accused from criminal liability, according to the criterion of this judicial body. However, as the Constitutional Chamber had a different position through vote number 2015-2675, of 9:05 a.m. on February 25, 2015, issued in an express action of unconstitutionality on that point and as its jurisprudence </span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 0mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">is binding </span><span style="font-size: 12pt;"><em>erga omnes</em></span><span style="font-size: 12pt;"> (article 13 of the Law of Constitutional Jurisdiction) this chamber can only abide by this pronouncement, with the caveat, of course, that if any liability for the Costa Rican State derives from this, it falls on the cited body and not on the undersigned, whose personal criterion is different from that resolved by the constitutional court but the latter is of obligatory compliance for us to the point that disregarding it would generate liability for us. In addition to the foregoing, it is important to highlight that in the last two laws (the one in force at the date of the facts whose conduct was not specified and the later one, valid today and created to re-establish the penalty) the punitive framework of the base type (two to four years of prison) and that of the aggravated type (three to six years of prison) is the same and the grounds for aggravation remain unchanged. That is, the latter was not a more beneficial subsequent law for the accused person. The court, when setting the sanction, imposed two years of prison for sexual abuse against a person of legal age. This is recorded in the operative part, although later, when the comprehensive judgment is issued, there are some errors in this regard. The reasoning on the subject is sparse and must be read together with the arguments expressed for the other victim (where it was emphasized that the prosecuting entity did not adequately charge the aggravating circumstances and that, therefore, they could not be considered). However, if one observes the charged fact 2, it is indeed stated that the defendant took advantage of his relationship of trust, in fact 1 it is described since when they knew each other and how such a relationship had originated, and in the aggravating circumstance stipulated in subsection 7, the relationship of trust is indeed foreseen as an aggravating circumstance (for a minimum sentence of three years). The court probably realized this when issuing the comprehensive judgment (when the operative part already existed, which could not be changed) and this explains the following error: "</span><span style="font-size: 11pt;"><em>Likewise, one crime of </em></span><span style="font-size: 11pt;"> <strong><em>sexual abuse against a person of legal age has been deemed proven, in its simple form due to </em></strong></span><span style="font-size: 11pt;"><strong><em><u>problems of accusation regarding</u></em></strong></span> <span style="font-size: 11pt;"><strong><em><u>the aggravating circumstances</u></em></strong></span><span style="font-size: 11pt;"><strong><em> of the type</em></strong></span><span style="font-size: 11pt;"><em>. The foregoing, for acts committed to the detriment of </em></span><span style="font-size: 11pt;"><em>[Name 003]</em></span><span style="font-size: 11pt;"><em>, it being established that the accused, in an abusive and surprising manner, touched the penis and anus of the aggrieved party </em></span><span style="font-size: 11pt;"><strong><em>over his clothing</em></strong></span><span style="font-size: 11pt;"> <em>, thereby harming the protected legal interest, namely his sexual integrity </em></span><span style="font-size: 11pt;">(...) </span><span style="font-size: 11pt;"> <em>the Court considers it proportional and reasonable to impose on the defendant </em></span><span style="font-size: 11pt;"><em>[Name 001]</em></span><span style="font-size: 11pt;"><em>, the sanction of </em></span><span style="font-size: 11pt;"><em><u>three years</u></em></span> <span style="font-size: 11pt;"><em><u>of prison</u></em></span><span style="font-size: 11pt;"><em> for each crime of sexual abuse against a minor, which has been deemed proven, as well as </em></span><span style="font-size: 11pt;"><strong><em><u>three years</u></em></strong></span><span style="font-size: 11pt;"> <strong><em> of prison for the crime of Sexual Abuse against a person of legal age that was deemed proven, making the </em></strong></span><span style="font-size: 11pt;"><strong><em><u>total penalty to be imposed 8 years</u></em></strong></span><span style="font-size: 11pt;"><strong><em> of prison.</em></strong></span><span style="font-size: 11pt;">"</span> <span style="font-size: 12pt;">(The highlight is supplied). Note that if three years were imposed for each crime and there were three crimes in total (two different victims) simple arithmetic makes the sum of the amounts result in nine years of prison in total, but the judgment refers to a global amount of eight. If one observes the operative part on pages 697 and 748 verso, it will be noticed that a sanction of two years had been set for this event, which is the minimum for the base criminal type, without the aggravating circumstance, which is what the court intended to do by excluding the aggravating circumstance without further justification. Therefore, for this reason and not for the others that the appellant sets forth (which, had that error not existed, could have been addressed in a manner similar to what was said for the other affected party) only on this issue (simple or aggravated legal classification? and amount of penalty) must the claim be upheld, the judgment annulled solely with respect to the crime of sexual abuse against a person of legal age to the detriment of </span><span style="font-size: 12pt;">[Name 003]</span><span style="font-size: 12pt;">.. See that this error cannot be corrected by this court because if it were considered that it was a simple addition error and that the </span><span style="font-size: 12pt;"><em>a quo</em></span><span style="font-size: 12pt;"> court intended to set the minimum amounts of the aggravated type (three years, for a total of nine and not eight as stated), it clashes with the court's argument that the accusation had not described any aggravating circumstance when that happened and that it was going to use the simple type, which prevents rectifying the matter in that way. If, on the other hand, it were intended to correct the error by choosing the minimum penalty amount of the base type (two years, for a correct sum of eight, which is what was imposed in the operative part) one would be choosing the penalty amount of the simple type and would be endorsing an argument of the trial court (that there was no adequate accusation of the aggravating circumstance) when, in this case, it did occur and this would make the decision contradictory. For the foregoing reasons, said annulment must be decreed and a remand ordered, at which time, in addition, the parties, if they deem it appropriate, may redirect the discussion on the eventual decriminalization referred to by the legislative changes to the corresponding constitutional avenues. </span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><strong> VII.- On the validity of the criminal action, the normative changes that occurred, and their applicability to the case.</strong></span><span style="font-size: 12pt;"> Having dismissed the complaints relating to the determination of the fact, the assessment of the evidence, and the adequate legal-criminal classification of the proven facts, it is necessary to analyze the validity of the criminal action in each event. This analysis is important because, pursuant to the provisions of articles 42, 459 and 462 of the Code of Criminal Procedure (Código Procesal Penal), this court is obliged to review, even ex officio (since nobody raises it in this matter), any violation of due process that may occur in order to guarantee the right to appeal stipulated in article 8.2.h of the American Convention on Human Rights. Conducting the trial only while the criminal action is in force is part of that principle of due process (see </span></span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-150108"><span style="color: #0563c1; font-family: Arial;"><span style="font-size: 12pt;"><u>vote number 2216-2001</u></span></span><u> </u></a> <span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">of the Constitutional Chamber). If we add to this that the accredited events are quite distant in time: 2005 (crime of sexual abuse against a minor) and 2013 (sexual abuse against a person of legal age) and because multiple reforms have occurred in both the substantive law (which establishes the penalty ranges from which the statute of limitations periods are calculated) and the procedural law (which has defined from what moment to start, interrupt, or suspend the calculations of the statute of limitations for the criminal action), a thorough scrutiny of the matter is essential to determine whether, both with respect to the facts for which the conviction persists according to what has been said, and for the one for which a remand is ordered due to the penalty amount. The first thing required is to establish the applicable law (substantive and procedural) regarding the statute of limitations for each of these events. </span><span style="font-size: 12pt;"><strong>(A.1)</strong></span> <span style="font-size: 12pt;"><u>Facts to the detriment of </u></span><span style="font-size: 12pt;"><u>[Name 005]</u></span><span style="font-size: 12pt;"><u>. (minor)</u></span><span style="font-size: 12pt;">: These events to the detriment of </span><span style="font-size: 12pt;">[Name 005]</span><span style="font-size: 12pt;">. are located when he was a minor (16 years old) and during the year 2005, the date on which the applicable criminal type (due to the considerations set forth in considering V.A, to which reference is made) was the following: </span></span></p> <div style="text-indent: 0mm; line-height: 158%; margin: 0.00mm 5mm 0.00mm 10mm;" align="left"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">"</span><span style="font-size: 11pt;"><strong>Sexual Abuse against Minors and Incapacitated Persons</strong></span> <span style="font-size: 11pt;"><em>ARTICLE 161.- </em></span></span></div> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 18mm 0.07mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>Whoever abusively performs acts with sexual purposes against a minor or incapacitated person or forces them to perform them on the agent, on himself/herself or on another person, provided it does not constitute the crime of rape, shall be punished with a prison sentence </em></span><span style="font-size: 11pt;"><strong><em>of three to eight years</em></strong></span><span style="font-size: 11pt;"><em>.</em></span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 18mm 0.07mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>The penalty shall be four to ten years in the following cases: </em></span></span></p> <ol style="margin-top: 0mm; margin-bottom: 0mm;"> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <div style="margin-top: 0pt; margin-bottom: 5pt;"> <p style="line-height: 108%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>When the offended person is under twelve years of age. </em></span></span></p> </div> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>When the perpetrator takes advantage of the vulnerability of the offended person or the latter is unable to resist or corporal violence or intimidation is used. </em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>When the perpetrator is an ascendant, descendant, sibling by consanguinity or affinity, stepfather or stepmother, spouse or a person who is linked in an analogous cohabitation relationship, guardian or person in charge of the education, custody or care of the victim. </em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>When the perpetrator takes advantage of his relationship of trust with the victim or his/her family, whether or not a kinship relationship exists.</em></span></span><span style="color: #010101; font-family: Arial; font-size: large;"><span style="font-size: 14pt;">" </span></span></p> </li> </ol> <p style="text-indent: 12mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">Based on the first paragraph (simple type applied by the </span> <span style="font-size: 12pt;"><em>a quo</em></span><span style="font-size: 12pt;"> court) the amount of the prison sentence of </span><span style="font-size: 12pt;"><strong><u>eight years</u></strong></span><span style="font-size: 12pt;"> was the maximum possible and generated the limit of the statute of limitations period (article 31, subsection 1 of the Code of Criminal Procedure) which, reduced by half due to the initiation of the process and the existence of interrupting acts (and without prejudice to what will be said about the way of starting the calculation because the victim was a minor at the date of the facts) would make </span><span style="font-size: 12pt;"><strong><u>four years</u></strong></span><span style="font-size: 12pt;">. Now, regarding the rules for the statute of limitations for criminal action, it must be indicated that this case presents significant complexity, as it involves various legal changes: Law No. 7594 in force since 1998 (issuance of the original Code of Criminal Procedure) and the reforms by Laws No. 8590 of 2007, 9057 of 2012, 9685 of 2019 and 9826 of 2020. In the </span><span style="font-size: 12pt;"><strong><u>first presentation of the articles</u></strong></span><span style="font-size: 12pt;">, from the entry into force of the Code of Criminal Procedure in 1998 (Law No. 7594) until July 18, 2007, the procedural legislation did not stipulate any distinction if the facts occurred to the detriment of minors or if they were sexual crimes, but rather the statute of limitations rule was given only by the passage of the maximum penalty time, reduced or not by half depending on whether suspensive or interrupting acts occurred. The first differentiated regulation for sexual crimes and those against children operated, precisely, through the </span><span style="font-size: 12pt;"><strong><u>second version of</u></strong></span><span style="font-size: 12pt;"> <strong><u>the norm</u></strong></span><span style="font-size: 12pt;">, Law No. 8590 of July 18, 2007, which introduced a reform to subsection a) of article 31 of the Code of Criminal Procedure so that it read as follows: </span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 17mm 0.05mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">"</span><span style="font-size: 11pt;"><strong><em>If the criminal prosecution has not been initiated</em></strong></span> <span style="font-size: 11pt;"><em>, the action shall prescribe:</em></span> </span></p> <p style="text-indent: 0mm; line-height: 149%; margin: 0.00mm 17mm 0.05mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>a) After the lapse of a period equal to the maximum of the penalty, for crimes punishable by prison; it may not exceed ten years nor be less than three, </em></span><span style="font-size: 11pt;"><strong><em>except in </em></strong></span><span style="font-size: 11pt;"><strong><em><u>sexual</u></em></strong></span><span style="font-size: 11pt;"><strong><em> crimes committed against minors, in which case the statute of limitations shall begin to run from the time the victim has reached the age of majority</em></strong></span><span style="font-size: 11pt;"><em>.</em></span><span style="font-size: 12pt;">"</span> <span style="font-size: 12pt;">(The highlight is supplied). </span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"> Since the facts were deemed to be proven in 2005 from the first day of the first month of that year (as the accusation does not specify a date in the year 2005, so, in attention to the most favorable facts for the defendant —article 9 of the Code of Criminal Procedure—, it must be considered that it occurred at the beginning of that year) until Law No. </span></span></p> 8590 on **18 July 2007**, **two years, six months and 18 days** had elapsed. Now, this law is procedural and of public order and, therefore, in the binding opinion of the Constitutional Chamber (see votes number 4397-99 and 11517-2000), it governs from the date of its entry into force, even for pending proceedings. Thus, as of 18 July 2007, the rules for judging this type of acts changed, but that applies to this case if and only if, by then: *i)* this victim had still been a minor because, on the one hand, the law could not be given retroactive effect to the detriment of the accused (Article 34 of the Constitution) and, on the other, if he were not, the factual situation contemplated in that regulation would no longer be met and *ii)* provided that the proceeding had not begun because, had it done so, the suspensive condition that heads the numeral would not exist nor would the purpose sought by the rule be fulfilled, which is that, because the affected person lacks emotional maturity or the efficient representation of a third party, the acts against him go unpunished. As [Name 005] was born on 03 September 1988 as proven (see established facts of the trial judgment), he turned 18 on **03 September 2006**. That is, by the date on which the new law entered into force (No. 8590 on **18 July 2007**), the victim had already reached the age of majority, for which reason that law was not applicable to his situation and that eight-year period (of which **two years, six months and 18 days** had already elapsed) continued its course pending a determination of whether it would be computed as reduced by half when a suspensive or interrupting act occurred. Now, the picture does not end there. Through Law No. 9057 of **23 July 2012**, the cited numeral was **reformed for the third time** to read as follows:

"If criminal prosecution has not been initiated, the action shall prescribe:

• a)After a period equal to the maximum penalty has elapsed, for offenses punishable by imprisonment, which may not exceed ten years nor be less than three, **except for offenses committed against minors**, in which case the statute of limitations shall begin to run from the time the victim reaches the age of majority." (Emphasis supplemented).

As can be seen, what it did was eliminate the reference only to sexual offenses against minors and extend it to all types of offenses against said population. Since this matter, due to the type of offense (though not due to the victim's age), was already included in the first list, the referenced change has no major significance here. A **fourth modification** to that provision occurred in 2019, through Law No. 9685 of **21 May 2019** called "*Law on the Right to Time, reforming the Penal Code to extend the statute of limitations for criminal action in cases of sexual offenses against minors or persons without volitional or cognitive capacity*." As a result of this regulation, the cited Article 31 of the Code of Criminal Procedure was to be read as follows:

"ARTICLE 31.- Statute of limitations periods for criminal action. **If criminal prosecution has not been initiated**, the action shall prescribe: a) After a period equal to the maximum penalty has elapsed, for offenses punishable by imprisonment, which may not exceed ten years nor be less than three, except for offenses committed against minors, in which case the statute of limitations **shall begin to run from the time the victim reaches the age of majority**. (Thus reformed the preceding subsection by Article 1 of Law No. 9057 of 23 July 2012, "Reform of various laws on the Statute of Limitations for Damages caused to Minors") b) After two years, for offenses punishable only by non-custodial penalties and for minor offenses or contraventions. c) **Twenty-five years after the victim reached the age of majority, in the case of sexual offenses committed against minors or persons without volitional or cognitive capacity. The preceding rule shall apply indistinctly to any perpetrator, accomplice, or accessory responsible for the respective punishable act, provided that at the time of committing the offense they had attained the age of majority.**" (Emphasis supplemented). Note that this provision distinguishes offenses of various natures against minors, as all non-sexual offenses would be governed by subsection a) (and the statute of limitations runs from when the victims turn 18 years of age), and sexual offenses against this population would be regulated by subsection c) and the statute of limitations for criminal action runs 25 years after attaining the age of majority, that is, from when the victim is 43 years of age. There are multiple criticisms that can be made of that regulation because, in the first place, if one starts from the hierarchy of legal rights established constitutionally and in human rights doctrine, it is reasonable that acts that threaten the highest value should be punished most drastically, both in terms of the types and amounts of penalties and regarding the provisions stipulated to prevent their impunity (statute of limitations periods, etc.). In that logic, for example, attacks against life (attempted homicides—since the victim must be in a position to be able to report—, genocide, etc.) should have a longer statute of limitations period compared to that for unlawful acts that, while they threaten legal rights essential for the development of the person (their sexual freedom), are not of the same rank as the former. On the other hand, the stipulated period (of 25 years after reaching the age of majority) alludes to "sexual offenses" that involve a wide range of illicit acts that affect, in very different ways, the protected legal right and are not necessarily comparable: rape, sexual abuse, remunerated sexual relations, improper relations, sex tourism, dissemination of pornography, improper abduction, corruption, procuring, pimping, human trafficking, street sexual harassment, etc. Here the question that must be asked is: why 25 years for all offenses, even though these are of varying severity? Finally, the last criticism lies in: what was the parameter stipulated for setting those 25 years? Even on other continents, specific treaties on the subject, such as the *Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse* (known as the Lanzarote Convention), ratified by 45 of the 47 member countries of the Council (and although open for signature by non-European countries, it has not been signed or ratified by Costa Rica) establishes that: "Each Party shall take the necessary legislative and other measures to ensure that the statute of limitations period for initiating legal proceedings regarding the offenses established in accordance with Articles 18, 19, paragraph 1.a) and b), and 21, paragraph 1.a) and b), has a duration sufficient to allow the effective initiation of said proceedings after the victim has reached the age of majority **and is proportionate to the gravity of the offense in question**." [Own emphasis]. That is, although the tendency to generate differentiated statute of limitations periods for offenses against minors is part of international human rights law, the issue of proportionality, which seems to have been abandoned in the cited law, must not be renounced. These and other criticisms of the regulation can be consulted in the research work of Quesada Jiménez, Jorge Luis (2020). *Concealed Imprescriptibility of Sexual Offenses Committed Against Minors or Adults Without Volitional or Cognitive Capacity*. Master's Degree in Criminal Sciences, Universidad de Costa Rica. However, although these are not minor issues, they will not be explored in depth, as they have no consequences for the specific case. The **fifth and last variation** of the numeral referred to on this subject (since it was also varied regarding the liability of legal persons, but that subject is not of interest here) generated the current version, which **as of 10 March 2020**, according to Law No. 9826, reads as follows:

ARTICLE 31.- Statute of limitations periods for criminal action. If criminal prosecution has not been initiated, the action shall prescribe: a) After a period equal to the maximum penalty has elapsed, for offenses punishable by imprisonment, which may not exceed ten years nor be less than three, except for offenses committed against minors, in which case the statute of limitations shall begin to run from the time the victim reaches the age of majority. (Thus reformed the preceding subsection by Article 1 of Law No. 9057 of 23 July 2012, "Reform of various laws on the Statute of Limitations for Damages caused to Minors") b) After two years, for offenses punishable only by non-custodial penalties and for minor offenses or contraventions, except for offenses committed by legal persons, in which case the statute of limitations shall be ten years. (Thus reformed the preceding subsection by Article 41 of the Law on the Liability of legal persons for domestic bribery, transnational bribery and other offenses, No. 9699 of 10 June 2019) c) Twenty-five years after the victim reached the age of majority, in the case of sexual offenses committed against minors **and at twenty-five years from the consummation of the punishable act, the last act of execution of the attempt, or the cessation of the continuing offense, as applicable, when these offenses are committed against adults without volitional or cognitive capacity**. The preceding rule shall apply indistinctly to any perpetrator, accomplice, or accessory responsible for the respective punishable act, provided that at the time of committing the offense they had attained the age of majority. (Thus reformed the preceding subsection by the sole article of Law No. 9826 of 10 March 2020).

This change also does not apply to this case, as the offense was not against persons without cognitive or volitional capacity, which is what was introduced. After that recount, it is important to highlight Law No. 9685 of **21 May 2019** which referred to the criminal statute of limitations elapsing 25 years after the age of majority for victims of sexual offenses suffered during their minority… is that provision applicable to this case? Note that, if the answer were affirmative, in this matter the statute of limitations for criminal action would have to begin to be counted until **03 September 2031** (date of the victim's 18th birthday + 25 years). However, this chamber considers that it is not, and therefore, the computation must continue to be done using the common rules insofar as: *i)* when that law entered into force (21 May 2019), the victim had already reached the age of majority (since 03 September 2006), so he was not in the factual situation provided for by the rule, which intended that persons who were victims of offenses who, at the time of its entry into force, had not reached the age of majority and had not reported, be exempt from the prescriptive rules in force until then; *ii)* the cited law could not be given retroactive effect to the detriment of the accused (Article 34 of the Constitution): if the law is from 2019 and the acts against [Name 005] date from 2005, it is clear that making it applicable would imply granting it that condition; *iii)* in all the reforms outlined, the beginning of the heading was respected, which refers "*If criminal prosecution has not been initiated*". Conversely, when the proceeding has begun, those rules do not govern, even if the victim has not yet reached the age of majority. In this sense, one can consult the vote of the Third Chamber of the Supreme Court of Justice number 841-2018 and from the Criminal Sentence Appeals Tribunal of the Second Judicial Circuit of San José, resolution number 2014-1961 (J. Campos, L. García and R. Chinchilla) in which it was stated: "…*the reform so that the criminal action would not prescribe, in the case of sexual offenses against minors who have not reported, but rather the prescriptive period would begin to run only after they had reached the age of majority, was not introduced until 18 July 2007 through Law number 8590 published in La Gaceta newspaper number 166 of 30 August 2007 and, since the date of the acts is not clear, the interpretation most favorable to the accused (Article 9 of the Code of Criminal Procedure) would apply on that factual point, which is to estimate that they occurred before August. By not applying said reform to the acts investigated here, the criminal action would have been extinguished by the statute of limitations, regardless of whether, even applying that regulation, it governs for the specific case, **in which the report had already been made, which is what that numeral excepts, whose purpose was to prevent impunity in those matters where, due to the lack of support from guardians or the lack of maturity of the minor, it was not conceptualized that they were being a victim of an offense, which would not happen either when reaching the age of majority or when having had family or social support, to the point that the act was reported.**"* Also, number 675-2018 (P. Vargas, M. Porras and L. Murillo) which referred: "*The established exception must be read in the context of the article and from it, it is deduced that as long as criminal prosecution has not been initiated, minor victims are granted special protection, so that it is not until they reach the age of eighteen that the computation of the statute of limitations period begins, **a situation that does not occur in cases where the procedure has begun**, since here the rules provided in Article 33 of the same regulatory body will be applicable.*" Finally, in vote number 2015-1034 (M. Gómez, R. Chinchilla and J. Campos) it was indicated: "*It must be taken into account that the reform so that the criminal action would not prescribe in the case of sexual offenses against minors who have not reported, but rather the prescriptive period would begin to run only after they had reached the age of majority, was not introduced until 18 July 2007, through Law number 8590 published in La Gaceta newspaper number 166 of 30 August 2007. Since the provisions of said reform cannot be applied retroactively, when the prescriptive period had already operated and given that the injured party's report, in this case, was not filed until 21 February 2011 (folio 1 of the file), it is necessary, having noticed the defect with notorious incidence on due process and in accordance with the powers and obligations that Articles 459 and 465 of the Code of Criminal Procedure confer on this tribunal, to declare the statute of limitations for criminal action ex officio.*" In the present litigation, **the report of [Name 005] was filed on 28 August 2014** (see folio 21), that is, by 2019 when that Law No. 9685 entered into force, it was already in progress, so that law (which prevents the use of the common statute of limitations rules until the victim reaches 43 years of age) is not applicable and the case had to be analyzed based on the common regulations.

**In summary**, the reforms made to the original 1998 text regarding the starting point for the computation of the statute of limitations cannot be invoked in this case because: **i)** Law No. 8590 of 2007, which established the computation from the victim's age of majority, could not be applied since the offended party [Name 005] was born on September 3, 1988, as proven (see proven facts of the trial court judgment), and therefore turned 18 on September 3, 2006. That is, when it came into force, the offended party was already of legal age and the cited law could not be applied retroactively; **ii)** Law No. 9057 of 2012 incorporated provisions for non-sexual crimes, so it is not of interest; **iii)** Law No. 9685 of 2019 extended the start of the computation to 25 years after the victim's age of majority if the proceeding had not begun, but in this case the judicial matter had already started with the complaint on August 28, 2014, when such law came into force, so it did not apply; **iv)** Law No. 9826 of 2020 only alluded to new issues related to persons with cognitive disabilities, not pertinent to this situation. Therefore, the matter must be handled with the original rules on the method of computing the statute of limitations for the criminal action (acción penal) from 1996-1998 (maximum penalty for the crime if there are no interrupting or suspending acts, and half of that amount if there were). Now, at the beginning of this section (A.1), it was indicated that, based on the first paragraph (simple type applied by the *a quo*), the prison term of **eight years** was the maximum possible and generated the ceiling of the statute of limitations period, which, reduced by half due to the start of the proceeding and the existence of interrupting acts, would be **four years**. The events occurred in 2005 (without determining an exact date, therefore, by the *in dubio pro reo* principle, the beginning of the year must be used as the starting point), so the eight years (that is, the complete statute of limitations period for the criminal action, still not reduced by half because an interrupting act had not yet occurred and without its computation being suspended because the laws referring to that subject are not applicable as stated) would have been completed at the beginning of 2012. Furthermore, even if Law No. 8590 of 2007 were considered —which established the computation of the statute of limitations for the criminal action from the victim's age of majority, which occurred on September 3, 2006— the eight years would have been completed on September 3, 2014. The defendant was investigated (indagado) for these events on November 25, 2014 (see folio 56). This was the interrupting act that also reduced the prescriptive period by half. But, when it occurred, the total period for the extinction of the criminal action had already fully elapsed. It is true that, from that moment on, the four years (period reduced by half) did not elapse between the various acts with effects on the matter, since the summons to the preliminary hearing were made (among others) on these dates: the first on July 14, 2015 (folio 216) and others on May 2, 2016 (folio 291), May 23, 2016 (folio 315), and June 26, 2016 (folio 332). The first scheduling of trial was made on September 6, 2017 (folio 390), the first judgment was issued on June 7, 2019 (folios 389-555), the appellate judgment annulling the former is dated October 28, 2019 (folio 616), and the summons for the remand dates from January 21, 2020 (folio 628). Although the foregoing are not the only hearings or scheduling orders and there are others that have an interrupting effect, they are the most relevant and allow us to see that the four years did not elapse between one act and another. However, the eight years *did* fully elapse from the date of the event until that first interrupting act of the investigation (indagatoria), and that is sufficient to determine that these events, to the detriment of [Name 005], were adjudicated while time-barred, and what should have occurred was to have determined it as such. Therefore, the conviction imposed on the defendant for two events to the detriment of [Name 005] must be reversed and, in its place, an acquittal ordered due to the extinction of the criminal action (acción penal) by the statute of limitations, eliminating the sanction of six years of imprisonment (three for each crime to the detriment of this affected party) from the total amount of the sentence, and without this affecting the determination of civil liability. Without prejudice to what will be indicated regarding the civil matter in another whereas clause (Considerando) (VII), the extinction of the criminal action does not affect the extinction of the civil action (acción civil) because, on one hand, there is discussion about the applicable regulations regarding periods and grounds and, on the other (and above all), unlike the extinction of the criminal action, the civil one is not declarable ex officio. In this matter, no express exception in that sense has been filed. Therefore, what is decided in criminal matters in this venue does not affect the pronouncement on the civil matter, which will be analyzed later based on other conceptual bases (see section VII.A). **(A.2)** *Events to the detriment of [Name 003].*: These events are located in 2013 and the victim was an adult at that time. At that date, the crime of sexual abuse against a person of legal age stipulated:

«*Sexual abuse against persons of legal age* *Article 162.- If the abuses described in the previous article are committed against a person of legal age, the penalty shall be* ***two to four years of imprisonment.*** *The penalty shall be* ***three to six years of imprisonment*** *when:* 1. *The perpetrator takes advantage of the vulnerability of the offended person, or the latter is unable to resist, or physical violence or intimidation is used.* 2. *The perpetrator is an ascendant, descendant, sister, or brother of the victim.* 3. *The perpetrator is an uncle, aunt, niece, nephew, cousin of the victim.* 4. *The perpetrator is a stepmother, stepfather, stepsister, or stepbrother of the victim.* 5. *The perpetrator is the guardian or the person in charge of the education, custody, or care of the victim.* 6. *The perpetrator carries out the conduct against any of the relatives of their spouse or cohabitant, indicated in subsections 3) and 4) above.* 7. *The perpetrator takes advantage of their relationship of trust with the victim or their family, whether or not a kinship relationship exists.*» (Emphasis supplied).

If one starts from the second paragraph (aggravated type charged, although not contemplated in the judgment and without prejudice to the fact that, if something else is considered in the ordered remand, the respective adjustments to these calculations be made), the maximum amount of six years of imprisonment generated the ceiling of the statute of limitations period (Article 31, subsection 1 of the Penal Code) which, reduced by half due to the start of the proceeding and the existence of interrupting acts, would be three years. As the events occurred when the injured party was an adult, for the reasons already referenced in the immediately preceding section, the rules of non-computation until reaching the age of majority do not apply. Then, counted from 2013, the six years to generate an interrupting act would expire in 2019. In this matter, the complaint by [Name 003] was filed on August 8, 2014 (see folio 1); the defendant was investigated on November 25, 2014 (folio 56); the summons to the preliminary hearing were made (among others) on these dates: the first on July 14, 2015 (folio 216) and others on May 2, 2016 (folio 291), May 23, 2016 (folio 315), and June 26, 2016 (folio 332); the first scheduling of trial was made on September 6, 2017 (folio 390), the first judgment was issued on June 7, 2019 (folios 389-555), the appellate judgment annulling the former is dated October 28, 2019 (folio 616), and the summons for the remand dates from January 21, 2020 (folio 628). Although the foregoing are not the only hearings or scheduling orders and there are others that have an interrupting effect, they are the most relevant, and the omitted ones do not alter the decision as they are additional interrupting acts or, in other words, if with these the action is not time-barred, it will be even less so considering others that increase the count. Thus, it is concluded that in this case the statute of limitations for the criminal action has not operated and, for that reason and without prejudice to what has already been indicated regarding possible decriminalizations (which must be discussed, if deemed appropriate, in the constitutional venue), the decision is not affected by the prescriptive issue. That means that the remand ordered to determine the correct legal classification and the penalty must be maintained.

**VII.-** [Name 012], unlimited general power of attorney of Temporalidades de la Arquidiócesis de San José, through a document authenticated by licensed attorney Vanessa Zúñiga Mora, challenges, in the **first ground of his appeal**, the reasoning of the judgment that held his represented party as jointly and severally civilly liable. He says that this type of liability arises from the failure in the duty to select and supervise the person to whom we entrust one or many acts. However, the civil plaintiff did not prove that a legal relationship exists between the accused in the present case and Temporalidades de la Arquidiócesis de San José, so the criterion of imputation required by Costa Rican regulations is not met. He points out that the legal nature of Temporalidades de la Arquidiócesis de San José is not that of a corporation (sociedad anónima) conceived according to the rules of commercial law nor one arising from a pact or articles of incorporation; rather, its creation derives from Law No. 6062 of 1977, which granted legal personality to the Conferencia Episcopal de Costa Rica, as well as to each of the dioceses or ecclesiastical jurisdictions into which the national territory is divided so that the former could act within the legal system. He argues that his represented party acts on behalf of the Catholic Church solely to celebrate acts, contracts, incur obligations, and in a special manner, acquire assets, which will be liable only for the damages and losses caused by virtue of the acts and contracts entered into by it; that is, it will eventually be liable for the damages and losses caused by its legal representatives, agents, or workers in the exercise of their functions. He argues that priests do not represent or act in the name or on behalf of Temporalidades de la Arquidiócesis de San José, so their personal or ecclesiastical acts do not compromise the assets of his represented party, which, in no way, should be liable for the damages or losses caused by the actions of the former, and this is evident from the testimony of priests [Name 078] and [Name 079] at trial, since priests do not represent it, nor do they act in its name, although there are indeed some who hold the judicial and extrajudicial representation of the legal entity, in which case their actions could compromise its assets, but this is not the case of the defendant. He considers that the court does not adequately substantiate why his represented party had to supervise Father [Name 001], if it is clear that there is no relationship whatsoever with him and his priestly ministry, nor did it have any reason to supervise his actions. In the **second ground of the appeal of the third-party civil defendant**, the inadequate assessment of evidence is alleged, as he considers that the circumstance proven by the court —that the defendant here received a salary from Temporalidades de la Arquidiócesis de San José— is completely erroneous. He argues that the evidence provided by the civil plaintiff —consisting of the contribution study issued by the Caja Costarricense del Seguro Social (CCSS) in the name of [Name 001]— should have been interpreted and assessed in conjunction with other evidence, such as the legal opinion issued by the Directorate of Legal Affairs of the Ministry of Labor, Department of External Advisory No. DAJ-AE-108-09 dated May 8, 2009, visible at folios 45 to 48 of the civil indemnification action file, where the agreement existing between the CCSS and the Conferencia Episcopal de Costa Rica is mentioned. He narrates that such agreement was signed, initially, in 1994 to comply with what is established in the Code of Canon Law; that is, it was the obligation of the Conferencia to guarantee the social assistance of priests in cases of illness, disability, and old age, and that in 2001 the contribution regime was changed so that they would not be classified as independent workers but would be covered under the Regulation for the Affiliation of Voluntary Insureds, in its Article 2 (which he copies), insofar as the priests did not receive income from an employment relationship. He argues that that contribution study cannot be interpreted and given value while ignoring the reality that exists, since, for the CCSS itself, priests are considered voluntary insureds, they do not generate income through an economic activity, they have not been direct insureds, and they do not have their own income. He considers that, if they are not salaried persons by his represented party, there is no employment relationship that generates a legal relationship between the two or that sustains indirect subjective liability. He recalls that, at trial, it was proven that the diocesan bishop, not Temporalidades de la Arquidiócesis de San José, appoints priests to parishes and assigns them tasks. Additionally, priests do not receive a salary, but rather receive a subsidy or sum that allows them to cover their basic needs, which comes from the donations or offerings that the faithful contribute in the different communities. Thus, even if a document says that his represented party is the employer of the priests, it is not so, for it does not have the obligation to cover the contributions corresponding to the Labor Capitalization Fund and the Mandatory Pension Regime, which is required by law for those persons, natural or legal, who maintain an employment relationship with their workers. Therefore, the document should have been assessed in accordance with the rest of the evidence. As a **third argument of the appeal of the third-party civil defendant**, the lack of reasoning is alleged insofar as the civil plaintiff —despite attempting to support the joint and several liability of his principal by alluding to the fact that the reported events occurred on properties owned by Temporalidades de la Arquidiócesis de San José— did not prove compliance with the requirements that both legislation and doctrine demand for strict liability (responsabilidad objetiva), since his represented party did not facilitate a place or property for criminal acts to be executed with complete comfort and impunity, nor was the existence of any legal rule proven that expressly establishes this type of liability for the spiritual activity carried out by the church. The legal opinion DAJ-AE-108-09 dated May 8, 2009, from the Ministry of Labor concludes the non-existence of an employment relationship due to the non-fulfillment of the essential elements for it, and Canon Law is a source of law in this country, so what is provided therein must be immediately obeyed. From that and an agreement entered into in light of such a source to provide social security to priests, the existence of an employment relationship cannot be derived. He adds that there are two judicial proceedings pending resolution that will determine whether or not an employment relationship exists and, therefore, the obligation to contribute to the CCSS under another category and not the one that operates to date. Said proceedings are 12-004436-1027-CA and 15-001341-1178-LA, but, currently, the existence of an employment relationship has not been determined, nor is there any relationship between his represented party and the accused. He considers that the arguments for a joint and several civil judgment against Temporalidades, for the moral damages suffered by the offended party, [Name 005], are not valid and that the church's activity is not risky, is not classified in this way, and *per se* does not provoke risks. He alludes to judgment number 48-2008 of the First Chamber of the Supreme Court of Justice, which indicates that liability independent of fault cannot be derived from interpretations, and he refers that the theory of created risk finds its support in the fourth and fifth paragraphs of Article 1048 of the Civil Code. However, this rule assigns strict liability to operators of dangerous establishments and to those engaged in the operation of means of transport, since both activities imply economic profit, which was also not proven by the civil plaintiff, since his represented party is a non-profit entity. He requests that the decision be reversed. *The arguments were reiterated, in summary, at the oral hearing.* *In responding to these arguments*, the Office of the Civil Defense of the Victim considered that the arguments are not receivable because the judgment is duly reasoned, as it was proven that, at the time of the events, the civil defendant [Name 001] was part of the clergy, serving as parish priest in the time frame circumscribing the events. He says that there is also no doubt about the causal link existing between the intentional actions of the civil defendant and the pernicious result on the sexual integrity of the civil plaintiff [Name 005]. Furthermore, the Catholic Church has a particular status in the Costa Rican State, and the one representing it is Temporalidades de la Arquidiócesis de San José as a legal person. He indicates that its liability derives from the absence of due supervision (vigilancia debida) of the defendant who was serving in an ecclesiastical role, which was the duty of his hierarch. He refers that the court relied on Articles 1045 and 1048, third paragraph (which he copies) of the Civil Code, that is, it alluded to indirect subjective liability or *in vigilando*, which corresponds to liability for the acts of others. Regarding the liability against Temporalidades de la Arquidiócesis de San José, he cites and partially transcribes vote number 2012-2411 of the Sentence Appeals Court of San José, which accepts it. He indicates that it was shown that the due supervision over the actions committed by Father [Name 001] was not exercised, since [Name 079], who was the Vicar General, and [Name 078], Episcopal Vicar, had knowledge of said actions and tried to remedy what happened, without concrete actions being taken, all of which implies a lack of supervision that entails joint and several civil liability for the Church. He says that it is not true that it was proven that the accused received a salary from Temporalidades de la Arquidiócesis de San José, but rather what is mentioned is that the civil defendant [Name 001] declared himself part of the payroll with a salary linked to Temporalidades de la Arquidiócesis de San José, for which documentary evidence was provided consisting of a report of accumulated salaries and a CCSS contribution study report, through which Temporalidades de la Arquidiócesis de San José was linked as the employer of the accused.

This test was not to determine whether there was an agreement with the CCSS for the payment of insurance, as the third civil party makes it seem, but rather to demonstrate the link between [Nombre 001] and Temporalidades de la Arquidi&oacute;cesis de San Jos&eacute; and to gather further evidence of the Church's liability, since [Nombre 001] declared that the priests did not act in the name or on behalf of Temporalidades de la Arquidi&oacute;cesis, when, in its CCSS payroll, the entity listed as their employer is Temporalidades de la Arquidi&oacute;cesis de San Jos&eacute;. It indicates that the Church, as an institution and religious authority, provides a service to the community of parishioners, selects a priest who has studied for several years, accepts his ordination, and then the appointment is made. [Nombre 079] established that priests must submit pastoral reports and that the Vicario Pastoral follows up on them, all of which would evidence the existing relationship and the duties of selection and supervision that ground joint and several liability (responsabilidad solidaria). It concludes that, in the trial, there was evidence that the accused was a parish priest in the place where the events occurred and that it was during that time that they took place. It refers to moral damage and its legal support (articles 59 and 1045 of the Civil Code and 125 of the Penal Code) and how, in this matter, it was demonstrated, and requests the rejection of the complaints. The other parties did not refer to this particular point. The arguments, since they question the issue of joint and several liability from different perspectives, are related and will be addressed jointly, and must be rejected. (A) On the rules of criminal and civil statutes of limitations. In section VI.A.1, the reason why, in this Chamber's opinion, the criminal action is time-barred for one of the offended parties was stated. However, such a decision does not affect the civil aspect. First, because there has been extensive legal discussion on the applicable regulations regarding time limits and grounds for extinction of the civil action when, as in this case, the extinction of the criminal action to which that claim was linked has occurred. On the other hand, because, unlike the extinction of the criminal action, which can be declared ex officio (article 42, subsection c) and final paragraph of the Code of Criminal Procedure), the civil one cannot be declared ex officio (article 2.4 of the Code of Civil Procedure) and, in this matter, no express exception has been filed in that sense, which will be expanded upon in due course (see section VII.A). Regarding the regulatory discussion concerning the applicable legislation and the time limits to be used for the civil matter when the extinction of the criminal action due to the statute of limitations has intervened, it should be noted that article 868 of the Civil Code stipulates: "Every right and its corresponding action prescribe in ten years. This rule admits the exceptions prescribed by the following articles and others expressly established by law, when certain cases require more or less time for prescription." The exceptions of the following articles are those indicated by numerals 869, 870, and 871 of the Civil Code, which establish, respectively, a prescription of three and one year, and, in the last numeral, it refers: "Civil actions arising from a felony or misdemeanor (delito o cuasidelito) prescribe together with the felony or misdemeanor from which they arise." This article, in principle, was the applicable one for purposes of the prescription of the action for damages arising from a crime, and not 868 on the ten-year prescription. This in application of the Latin aphorism according to which special law prevails over general law (leges generales non debent etendi at leges, quae habent suam particularem provisionem: general laws should not be extended to cases that have their special provisions). Thus, for a long time it was considered that the prescription of the criminal action and the damages action derived therefrom went together [see on this: Abdelnour Granados, Rosa Mar&iacute;a (1984). La Responsabilidad Civil Derivada del Hecho Punible. Editorial Juricentro, San Jos&eacute;, pp. 167-168]. That was the position of the Sala Tercera, for example, in vote number 565- F at 4:15 p.m. on December 12, 1994. However, for another sector, numeral 871 of the Civil Code was implicitly repealed by numeral 96, second paragraph of the Penal Code, which establishes: "The extinction of the criminal action and of the penalty shall not produce effects regarding the obligation to repair the damage caused, nor shall it prevent the confiscation of the instruments of the crime", (cfr. Z&uacute;&ntilde;iga Morales, Ulises. C&oacute;digo Penal anotado. Investigaciones Jur&iacute;dicas. p. 60). Therefore, the Sala Tercera, in vote number 297 A- at 2:55 p.m. on July 9, 1993, made a constitutional consultation on the topic and the Sala Constitucional, when resolving it, ordered: "...in the case of a crime, there is an eminently public interest; in the other case (merely civil injury), the interest is basically private. Hence, if, even with that public interest involved in the case of a crime, the criminal action prescribes, in accordance with the provisions of article 82 of the Penal Code, the logical thing, contrary to what was expressed in the consultation, is that the civil action prescribes together with the former, since the latter is, in relation to the former, merely secondary, and therefore, it would be a contradiction if, for the principal act, which is the crime, a subject can no longer be pursued, when that interest is merely private while the other is public. Thus, if, in accordance with the criminal law itself, certain crimes prescribe in a period shorter than ten years, the legislator would act wrongly if it granted greater legal protection to the purely private interest of the victim of the crime than to the main public interest and extended the prescription period for the civil action, for example, to ten years, so that even when no criminal sanction could be imposed, the offended party could collect the damages (da&ntilde;os y perjuicios) derived from a criminal act." (Sala Constitucional. Vote number 5029-93 at 2:36 p.m. on October 13, 1993). Given this, the Sala Tercera continued applying the prevalence of numeral 871 of the Civil Code for a long time: see, for example, votes number 85-99 at 9:40 a.m. on January 21, 1999, and 891-99 at 9:15 a.m. on July 19, 1999. However, the topic was revisited in the following terms: "The Sala Constitucional of the Supreme Court of Justice ordered that when the criminal action prescribes, the same will occur with the civil claim, which contradicts article 96, second paragraph of the Penal Code. We affirm the foregoing because prescription is a cause of extinction of the criminal action. Furthermore, the Penal Code is a special law and subsequent to the Civil Code, thereby making it clear which legislation was applicable to the case. The problem is not whether article 871 is constitutional or not. The important thing is that there is a later and special norm that rendered it without effect. We understand then that the prescription of the criminal action, a cause of extinction of the criminal action, does not produce effects on the obligation to indemnify." [SANABRIA ROJAS, Rafael (2000): La Prescripci&oacute;n de la acci&oacute;n penal en la nueva legislaci&oacute;n procesal costarricense. Editorial Jur&iacute;dica Continental. San Jos&eacute;, p. 100). A thesis that has finally prevailed almost unanimously in the jurisprudence of recent decades, with some relevant exceptions, such as the dissenting opinion in vote number 2021-193 of the Tribunal de Apelaci&oacute;n de Sentencia Penal de Cartago, which states: «II. Dissenting vote of Judge Fern&aacute;ndez Mora: In this matter, I must record my dissent from the majority in ordering a retrial to determine civil liability, despite having determined the prescription of the criminal action for some of the offenses, since from my perspective, the civil action also prescribed jointly with the criminal one, as provided by current legislation. Article 871 of the Civil Code states that: 'Civil actions arising from a felony or misdemeanor prescribe together with the felony or misdemeanor from which they arise.' In other words, since the crime that was judged prescribed long before the acts were accused, by express decision of the legislator, the right to claim civil compensation by the offended party also prescribed, so it is not possible to interpret that in this case the prescription of the civil action ran independently from the criminal action. It should be noted that I am aware of the position taken by the Sala de Casaci&oacute;n Penal starting with vote No. 20020861 at 10:00 a.m. on 08/20/2002, which holds, among other conclusions, that article 871 of the Civil Code was tacitly repealed by article 96 of the Penal Code and that the term (sic) for the civil action to prescribe is ten years. However, in accordance with the constitutional principle of judicial independence that protects me in my jurisdictional function, I disagree with the reasoning that the honorable Sala de Casaci&oacute;n has provided, since it is not true that one can speak of a tacit repeal of article 871 of the Civil Code, as will be indicated below. Nor is it accurate to establish that in all cases, the computation of civil prescription is decennial, when there is expressly a norm that provides otherwise, as article 868 of the Civil Code states: 'Every right and its corresponding action prescribe in ten years. This rule admits the exceptions prescribed by the following articles and others expressly established by law, when certain cases require more or less time for prescription.' (...) it must be noted that article 109 of the Penal Code refers to: 'The obligations corresponding to civil reparation are extinguished by the means and in the manner determined in the Civil Code...', which would imply for the Chamber, that the legislator, with a classically oriented criterion, made a referral so that the extinction of civil obligations is determined with a positivist criterion such as that expressed in article 871 of the Civil Code. The arguments of the Sala de Casaci&oacute;n to affirm that article 96 of the Penal Code tacitly repealed article 871 of the Civil Code overlook circumstances whose consideration is essential in light of the rules for the application of the tacit repeal of a norm, such as the criterion of lex posterior. In that sense, Josep Aguil&oacute; points out that: 'Not every normative inconsistency results in a repeal due to incompatibility. There is only repeal when the ordering of conflicting norms is carried out applying the criterion of lex posterior. The application of the criteria of lex specialis and lex superior does not lead to any repeal' (Aguil&oacute;, Josep. La derogaci&oacute;n en pocas palabras. Anuario de Filosof&iacute;a del Derecho XI, 1994, p. 412). From the foregoing perspective, it could not be interpreted that article 871 of the Civil Code is tacitly repealed because in 1970 the Penal Code was enacted, which contained the aforementioned article 96, because through a subsequent law, the legislator decided to restore the effects of article 871 of the Civil Code. This subsequent legal provision is none other than Law No. 4981 of November 8, 1971, which restored the validity of Title IV, Book I of the Penal Code of 1941, which in its article 138 provides: 'The obligations concerning civil reparation, dealt with in this chapter, are extinguished by the means and in the manner determined by the Civil Code for civil obligations,' which necessarily refers to the form of extinction of the civil action (prescription) arising from a crime stipulated by article 871 of the Civil Code. (...) even in the event that the interpretation of the Sala de Casaci&oacute;n were correct, regarding the fact that there was a tacit repeal due to incompatibility of norms of article 871 of the Civil Code, when article 96 of the Penal Code was promulgated, said norm would not have lost any validity, but was incompatible only for a space of a little more than a year (from May 4, 1970, to November 18, 1971), since, subsequently, the same legislator decided to restore it in all its effects through a new act of legislative promulgation. (...) In other words, since article 871 of the Civil Code is a valid, effective norm that also has no constitutional friction, it must be applied effectively by the judge. For this judge, it is clear that there is an exception to the general principle of the decennial prescription for filing a claim in civil court. It is precisely the law that establishes that, in the case of liability derived from a crime, the civil action must prescribe together with the criminal action (...) According to my opinion, it is possible to conclude that, far from being true the brilliant theoretical exposition made by the Sala de Casaci&oacute;n, the legislator has not even realized that it enacted a hybrid and even incoherent regulation regarding the issue of civil liability derived from crime, and that is why, at the same time, it gives it a treatment typical of both a classical system and a positivist system. It is a regulation that leaves in force rules on the extinction of the civil action that subordinate it to the extinction of the criminal action, which must be applied as it is subsequent legislation that, rather, tacitly repeals the provisions of the second paragraph of article 96 of the Penal Code. By virtue of the foregoing, having determined in this judgment that the criminal action is prescribed, in accordance with the provisions of article 871 of the Civil Code, it is appropriate to declare the civil action prescribed to claim the damage derived from the investigated crime and to absolve the accused from pecuniary liability.» (The bold has been added). Regardless of the position adopted in this regard, the truth is that the civil matter is governed by the principle of party disposition, and since none of the parties alleged the prescription of the civil action, that declaration does not affect (for that reason, without prejudice to others, which will be analyzed in due course) the civil compensation. It has been referred to on other occasions as follows: «Regarding the civil claim, the judgment is upheld, as the exception of prescription was not raised in this aspect, and therefore it is considered waived, in accordance with article 851 of the Civil Code, which indicates: "The waiver of prescription may be tacit, and results from not raising the exception before a final judgment." Prescription is not declarable ex officio, therefore, having not been alleged, the judgment in the civil aspect must be upheld.» (Former Tribunal de Casaci&oacute;n Penal de San Jos&eacute;, vote number 492-F-8 at 10:20 a.m. on July 13, 1998; the highlights have been added). (B) On the need to issue a civil ruling despite the extinction of the criminal action: Additionally, it must be indicated that the issuance of that decision does not imply that what was resolved on civil matters must be set aside, much less that the parties must resort to another legal avenue to protect their rights. This Chamber is not unaware of what was stated by the Sala Tercera in vote number 2021-347, where, applying numeral 40 of the Code of Criminal Procedure (principle of accessoriness of the civil action), it considers that, if a dismissal due to prescription is issued before trial, it is not appropriate to rule on the civil matter, but rather it must be sent to the corresponding legal avenue. However, it does not apply it for two reasons: i) in this matter, a dismissal due to prescription was not issued before the trial, but after it, in the sentence appeal phase, which implies that the decision on the civil matter must continue since it cannot be addressed ex officio; ii) the precedent is considered incomplete since, although from a purely legal standpoint it is adequate, the decision changes when higher-ranking constitutional and conventional principles (effective judicial protection, access to justice) guaranteed to victims by international instruments and by numeral 41 of the Magna Carta are incorporated, which were not made visible by said court. That is, it did not apply the normative hierarchy that subordinates laws to constitutional and conventional norms and principles. That Chamber, in summarized form, stated in that precedent: «III. The criterion previously held by this Chamber is varied and the jurisprudence is unified (...) The issue on which the different application of the law is claimed consists of the possibility that the trial court has to conduct the debate on civil matters, when a final dismissal due to the extinction of the criminal action has been previously issued. The first thing that must be noted is that this Chamber verifies that indeed the two cited resolutions resolve the issue differently, despite presenting a similar factual scenario, which was the issuance of a final dismissal due to the prescription of the criminal action, prior to the adversarial proceeding taking place. (...) Through pronouncement No. 2010-0105, at 11:00 a.m., on February 17, 2010, it was established that: '[...] the decision regarding the criminal action did not imply at this stage of the process that the judges could disregard it and consider it concluded, since the discussion of the civil damages action, legitimately exercised, was still pending in that trial court (...)' (Signed by substitute magistrates Rafael Segura, Jaime Robleto, Sandra Z&uacute;&ntilde;iga, with a dissenting vote from substitute magistrates Rosibel L&oacute;pez and Jorge Desanti). However, upon a better pondering of the issue, the current integration of this Chamber considers that what is pertinent is to vary the criterion that had been maintained, based on the considerations set forth below. The criminal process is designed for the judge to impart justice when faced with the existence of illicit acts that require the imposition of a penalty or security measure. However, by legal provision, in some cases, jointly, it will also correspond to him to rule on the civil claims asserted by the legitimized subjects. In this regard, ordinal 37 of the Code of Criminal Procedure states: 'The civil action to return the object that is the subject matter of the punishable act, as well as the reparation of the damages (da&ntilde;os y perjuicios) caused, may be exercised by the victim, his heirs, his legatees, the estate, or by the beneficiary in the case of personal claims, against the perpetrators of the punishable act and participants in it and, where appropriate, against the civilly liable party.' Although the civil action may be exercised within the criminal process, it is not autonomous, but is subordinate to the exercise of the criminal action, that is, it has an accessory nature, as established in numeral 40 of the procedural code: 'In the criminal procedure, the civil damages action may only be exercised while the criminal prosecution is pending. If the accused is provisionally dismissed, or the procedure is suspended, in accordance with the provisions of the law, the exercise of the civil action shall be suspended until the criminal prosecution continues, and the right to file the claim before the competent courts shall be preserved. An acquittal shall not prevent the court from ruling on the civil damages action validly exercised, when appropriate.' It is important to note that the exercise of the civil action within the criminal process is optional for the interested party, who could well assert their rights in the ordinary civil channel, as provided in article 41 ibidem: 'The civil action may be exercised in the criminal process, in accordance with the rules established by this Code, or brought before the civil courts; but it may not be processed simultaneously in both jurisdictions.' This precision is of particular importance, since, when choosing its exercise in the criminal channel, the party accepts the existing regulation in said process, as well as its consequences. And it is that, based on the aforementioned accessoriness, it must be understood that there is a relationship of dependence of the civil action with respect to the criminal one, so that, if the latter is not pursued, or, having been exercised, there is an impediment for it to continue, the former cannot continue either, that is, the civil action can only be pursued when the criminal one is ongoing. Now, based on the fact that the prescription of criminal and civil matters are subject to different prescription periods, it could well happen that the expiration of the former occurs, with the latter remaining subsistent. Of interest for the case, it must be indicated that, if such a situation occurs during the course of a criminal process, in which the civil action has been exercised jointly, with the case under the knowledge of the trial court, but without the debate having taken place, it will lose jurisdiction to rule exclusively on the civil matters. The foregoing because among the different criteria for establishing jurisdiction is subject matter, according to which the civil and criminal spheres are distinguishable by their nature and independent in their regulation. Thus, article 165 of the Organic Law of the Judicial Branch provides that: 'Every judge has his jurisdiction limited to the territory and the class of matters that are assigned to him to exercise it.' From the discussion of articles 96 and 96 bis, ibidem, it follows, as relevant, that trial courts have jurisdiction to hear the trial phase for the prosecution of crimes. They acquire jurisdiction to rule on civil claims only by reason of the joint exercise of actions. No norm of the legal system empowers them to hear exclusively a civil action; therefore, they could not arrogate prerogatives that the law does not grant them, as this would violate the principle of legality, according to which public officials may only carry out those actions that the law empowers them to do (See Article 11 of the Political Constitution and Article 11 of the General Public Administration Act). In this regard, what is provided in Article 359 of the Code of Criminal Procedure should not lead to confusion, referring to those cases in which a bifurcation of proceedings or a remand has been ordered solely for the determination of the penalty or civil consequences. In these cases, the relationship of dependence of the civil claims on the criminal claims is maintained, because the bifurcation implies that a trial on criminal liability is first held, then another on the penalty and civil consequences, but all within the same proceeding; whereas when a remand is ordered solely for the civil claims, the background is a judgment that resolved the criminal aspects. Continuing with the analysis, note that article 340 of the Code of Criminal Procedure provides that: "If a cause extinguishing the criminal action arises and it is not necessary to hold a trial to verify it, the court may order a definitive dismissal. The Public Prosecutor's Office, the victim, the private prosecutor, and the civil plaintiff may file an appeal against the ruling on what was decided." That is, the powers of the civil plaintiff are limited to challenging what was decided, not to continuing with the exclusive exercise of the civil action. In this regard, the Chamber, in ruling 2003-00034, at 8:42 a.m. on January 31, 2003, ruled by stating the following: "[...] The dismissal ordered by the court a quo, considering that the criminal action was extinguished due to the statute of limitations, inexorably closes the proceeding initiated by private complaint, and the civil claims may no longer be discussed in this forum for the simple and logical reason that the proceeding concluded without the merits being discussed and resolved..." (Subscribed by Judges Daniel González, Jesús Ramírez, Rodrigo Castro, José Manuel Arroyo, and Joaquín Vargas Gené). It is different in cases where, as a result of the development of the trial, after the parties have had the opportunity to discuss the facts, present evidence, and formulate claims, the extinction of the criminal action is noticed, in which case the court must resolve what is appropriate regarding the legal situation of the accused person and in relation to the liability of the civil defendants. This reasoning is entirely consistent with the provisions of Article 40 in fine of the procedural code: "The acquittal shall not prevent the court from ruling on the validly exercised civil action for damages when appropriate." The foregoing because the joint exercise of both actions was carried out up to that procedural stage, and once the trial has been held, the court has the obligation to rule on all the matters submitted to its consideration, including the civil claims. Note that Article 361 of the Code of Criminal Procedure provides that the judges must deliberate and vote regarding the issues, including "the appropriateness of the criminal action and any other incidental issue that has been deferred to this moment" (subsection a), as well as "When applicable, matters relating to the reparation of damages and losses." (subsection e). Based on the analysis carried out, this Chamber does not observe deficiencies in the reasoning outlined by the court ad quem but, on the contrary, considers that this is the correct manner in which the questioned legal point must be resolved. In the present case, the court a quo, making use of the power granted in article 340 of the procedural code, issued a written definitive dismissal, without holding adversarial proceedings. However, it omitted to rule on the civil action (…) which motivated the filing of a judgment appeal by the latter office, considering that it caused harm to its represented party by not holding a trial on the civil claims, which, in turn, forces the aggrieved party to initiate a new proceeding in the civil courts, with all the difficulties that this implies. In response, the Trial Court of Appeal of the Second Judicial Circuit of Guanacaste, through ruling 087-20, at 10:30 a.m. on February 28, 2020, dismissed the challenge, determining that the issuance of the definitive dismissal by the trial court prevents the civil claims from continuing to be heard within the criminal jurisdiction, because jurisdiction has been lost. In this regard, it stated: "Firstly, the issue must be approached from the principle of legality; thus, Article 11 of the Political Constitution refers, as relevant, that: 'public officials are mere depositaries of authority. They are obliged to fulfill the duties that the law imposes upon them and cannot arrogate powers not granted therein…'. The foregoing refers to the principle of legality, as a limit on the 'sovereign power' enjoyed by the Administration before citizens, according to the legitimacy that the law itself grants its actions. In this line of thought, as provided in Article 40 of the Code of Criminal Procedure, the civil claim is accessory to the criminal claim, highlighting that: 'the civil action for damages may only be exercised while the criminal prosecution is pending', so that when the latter action is extinguished and, procedurally, the civil action depends on the principal action, the obligation to resolve the merits of the civil claim will depend on whether the expiration of the criminal action due to the statute of limitations is known before or during the holding of the trial. If the issue of the statute of limitations is known during the trial stage, the discussion on the validity of the action can be deferred for the judgment. However, in the event that a trial has not been scheduled and the statute of limitations is detected, as occurs in the specific case, the jurisdiction of the trial court to hear the civil claim is exhausted upon resolving the extinction of the criminal action, since it is impossible to arrogate a jurisdiction that, according to the principle of legality, is circumscribed to the distribution made by law of the different spheres of knowledge based on criteria of subject matter, severity or amount, territory, and instance, which in the specific case is limited to hearing the criminal case (criminal action)." Subsequently, it adds: "Under this line of thought, this Chamber concludes that the issue of jurisdiction, which is closely linked to that of the natural judge and constitutes a fundamental guarantee in any Rule of Law, is seriously compromised when a definitive dismissal is ordered due to extinction of the criminal action and a trial is subsequently scheduled to ventilate the civil claim as proposed by the appellant, since once the criminal action is extinguished, there is no legal jurisdiction to hold a trial on the claim for damages, as criminal prosecution is no longer pending as a consequence of the definitive dismissal ordered before the trial." This Chamber considers that the analysis carried out by the court ad quem is in accordance with the law and conforms to the new position on the matter that has been articulated in this ruling. Based on the foregoing, as no deficiencies are observed in the challenged decision in the interpretation and application of the law, the appropriate action is to dismiss the challenge filed by the representative of the Civil Defense Office for Victims. The jurisprudential criterion that this Chamber had sustained in ruling 2018-00561, at 11:10 a.m. on August 17, 2018, is changed, and the jurisprudence is unified to mean that, when the criminal action is declared time-barred in the trial stage without holding adversarial proceedings, the civil action, being subordinate to the former, cannot proceed, given the impossibility of it being pursued autonomously, due to the lack of legal authorization to do so. (The emphasis is supplied). Note that the Third Chamber, in no part of its decision on the topic, even mentions, much less delves into, the analysis of the constitutional and conventional principle (ergo, of higher rank than the law) of access to justice and effective judicial protection for victims who have chosen one route (criminal) and have no reason to be subjected to the bureaucratization of going from one proceeding to another, from one court to another, begging (as if it were a discretionary power and not a right) for the recognition of compensation, with the loss of time that this implies and with the change of rules, including those on the statute of limitations and its method of calculation (which, in civil matters, would not count acts from the criminal proceeding). This principle is enshrined in Article 25.1 of the American Convention on Human Rights, in Article 41 of the Political Constitution, and in the Brasília Regulations Regarding Access to Justice for Vulnerable People in this regard, the jurisprudence of the Inter-American Court of Human Rights has been extensive, indicating, for example: "... the Court has established that for a remedy to be effective, it is not enough for it to be provided for by the Constitution or by law, or for it to be formally admissible; rather, it is required that it be truly suitable to establish whether a human rights violation has been incurred and to provide what is necessary to remedy it. Those remedies that, due to the general conditions of the country or even due to the particular circumstances of a given case, prove illusory cannot be considered effective. By virtue of the foregoing, the State has the responsibility not only to design and normatively enshrine an effective remedy but also to ensure the proper application of said remedy by its judicial authorities" (Inter-American Court of Human Rights. Case of Liakat Ali Alibux v. Suriname. Preliminary Objections, Merits, Reparations, and Costs. Judgment of January 30, 2014. Paragraph 116). In any case, it is reiterated that here a trial did take place and the statute of limitations, which in civil matters does not apply ex officio, has not been alleged; therefore, for these reasons, the issue must be analyzed. (C) On the content of the decision on the merits and the classification of types of civil liability: Starting from Recital VII of the judgment, the civil issue is referred to in the following terms, which must be transcribed to determine the legal basis on which the civil claim was upheld (nexus, type of compensation, amounts, persons liable, etc.): "The direct victim and injured party in this case [Name 005] filed a Civil Action (…), suing civilly [Name 001] for direct subjective liability and Temporalidades de la Arquidiócesis de San José for indirect subjective liability (…) This Court finds the nexus between the harmful act, the intentionally tortious civil conduct of [Name 001], and the pernicious result on the sexual integrity of the victim (…). The moral damages suffered were credibly shown through the victim's statement, from which it emerged that in the year two thousand five, when he was 16 years old, he experienced a series of family problems that affected his emotional stability and forced him to seek help to guarantee his subsistence and continue his basic education studies and, particularly, prepare for national-level mathematics olympiads; these being the elements that determined him to leave his home and go live with Father [Name 001], who at that time offered him support and the study facilities he required. Thus, he came to love him as a father, calling him 'PA'. The civil plaintiff stated in his testimony that the accused represented a figure of respect and admiration, not only for the help provided but also for what he observed in him at that time. However, despite those feelings, the accused here proceeded to touch him abusively on his intimate parts on at least two occasions while they slept together, thereby harming his sexual integrity. Actions that caused him great pain and disappointment since the figure of spiritual, emotional, and economic support rested exclusively on the Civilly Sued party here, who clearly took advantage of his vulnerability and absence of paternal figures. This also signified a spiritual deterioration of great importance since the figure of the priesthood ceased to be well perceived by the victim, and because of him, he was isolated and attacked with insults on social media. Coupled with the fact that he lacked economic or other possibilities to get away from his aggressor, which represented compensable psychological harm according to the liability established in Article 1045 of the Civil Code for intentional actions causing harm to another. As stipulated in jurisprudence, the Criminal Courts are obliged to break down and determine the amounts to which parties are sentenced, in order to prevent victims from having to resort to civil courts to estimate the damages. It is for this reason that the Court must accept the moral damages item in the amount of five million colones, an amount considered in conformity with the victim's claim at the time of filing the lawsuit and the facts that were considered proven in this ruling, which correspond to two crimes of sexual abuse against a minor. Although the granted amount cannot compensate for the harm caused by [Name 001] to the detriment of [Name 005], the Civil Action for Damages is considered legitimate and worthy to somehow compensate for the pain and suffering caused to the Civil Plaintiff (…) Said sum, which is established symbolically, as this Court does not intend for said amount to resolve the suffering endured by the plaintiff. According to the Attorneys' and Notaries' Fee Decree number 32493, in criminal matters with a civil action, one must adhere to the calculation provided in Article 18, which states that when the amount is equal to or less than twenty-five million colones, the fee payment shall be twenty percent. Thus, twenty percent of the indicated sum is ONE MILLION COLONES, a sum that the defendant must pay the plaintiff for the concept of personal legal costs for the civil action filed, in addition to the amount for which he was sentenced." (Cf. judgment, pages 92 et seq. of the pdf). This part of the decision is not being challenged, so the civil judgment against the defendant, personally, is final, as additionally, this chamber finds no defect in the reasoning, given that the liability emerges from the proven fact, and the applicable law is correct. It is worth noting, however, that at the beginning of the transcription, it is indicated that the lawsuit against Temporalidades de la Arquidiócesis de San José was filed on the basis of subjective liability for fault in eligiendo and in vigilando, and not by arguing the theory of risk or strict civil liability. Although nothing prevents, by virtue of the principle of iura novit curia (which also forms part of due process: see ruling number 2010-4587 of the Constitutional Chamber), a jurisdictional body from correctly applying the law that corresponds to a case, even if not the one invoked, the foregoing is highlighted to distinguish between the types of liability, a distinction the challenger does not make. In the area of civil liability, doctrine distinguishes two types: contractual and extracontractual. The former arises from express agreements or legal relationships. The latter arises from acts or omissions in social life. These may be intentional (i.e., desired), negligent (that is, lacking the duty of care), or stipulated in law, regardless of whether there is intent or negligence, or whether they are lawful or unlawful acts, since this is based on the creation of risks (for example, Article 1048 of the Civil Code) or on obtaining profits that those who promote them must bear (strict liability). Therefore, extracontractual civil liability can be subjective (due to intent or negligence) and this can be either for one's own act (direct) or for another's act (indirect), based on fault in eligiendo or fault in vigilando. The latter is provided for in Article 1048, third paragraph, of the Civil Code, which states: "He who entrusts a person with the fulfillment of one or many acts is obliged to choose a person apt to execute them and to supervise the execution within the limits of the diligence of a good father of a family; and if he neglects these duties, he shall be jointly and severally liable for the damages that his agent causes to a third party through an action violating the rights of another, committed with malicious intent or by negligence in the performance of his duties, unless said action could not have been avoided even with all due diligence in supervision." This is different from the other type of liability, that is, strict liability, where, in addition to the need for a specific legal provision (for example, in Article 1048, paragraph 5 of the Civil Code; in Article 32 of the Law for the Effective Protection and Defense of the Consumer, contained in Article 32; Article 197 of the Transit Law; or Articles 190 et seq. of the General Public Administration Act), the criterion for imputation involves analyzing three requirements: a) the use of things that entail danger or risk; b) causing damage of a pecuniary nature; c) establishing the relationship or causal nexus between the event and the damage. This, in turn, can be principal or sole, or joint and several.

</p> The judgment on the merits already mentioned initially indicates that the plaintiff invoked indirect subjective liability for fault due to negligence in supervision (*in vigilando*) or in selection (*in eligiendo*) **40** Note: The provided text ends mid-sentence with "plaintiff" and "invoked indirect subjective liability...". The layout and numbering (60 and 40) are preserved as in the original text block, though the image reference and some formatting (like the ragged text alignment) have been transcribed as they appear in the source code structure.

The 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" alt="graphic" width="605" height="427" align="left" border="0" /><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">but later.

Nonetheless, later on, when referring to the link of the third-party civil defendant₂₀, regarding the invoked joint and several liability, it does so in the following terms:₀ 1er trim. 2do 3er trim. 4to «…*the claim was filed jointly and severally against Temporalidades de la Arquidiócesis de San José, **considering the existence of strict liability (responsabilidad objetiva)** derived from the fact that [Name 001], at the time he commits the acts, held the position of parish priest of the [Name 080] **and performs the acts taking advantage of his investiture, an element that generates strict liability due to the accused's belonging to the church and the tasks carried out by it, as well as the risks generated by its activities**. In this particular case, this Court has deemed it pertinent to admit the claim for joint and several civil liability against Temporalidades de la Arquidiócesis de San José filed by the Civil Plaintiff, as it concerns **indirect or in vigilando fault-based liability (responsabilidad subjetiva indirecta o in vigilando)** corresponding to **liability for the acts of another (responsabilidad por hechos ajeno)**, that is, the conduct generating civil liability is carried out by a subject other than the one held responsible for the action, which is assumed due to the responsibility we all have to watch over the persons, animals, or things that depend on us and to be cautious in the choice of those we wish to utilize. Hence, it can be concluded that when there is a lack of, or insufficient, supervision of persons in our charge, liability is incurred, just as happened in the case before us. For, in the adversarial proceedings, it was evidenced through the statements of [Name 038] and the church members themselves, Father [Name 079] and [Name 078], **the insufficient supervision exercised over the acts of the civil defendant [Name 001]**, acts which were even known to the Church before July 10, 2014, without any actions being taken to control what was happening and even to remedy the situations that occurred, and, conversely, a position was taken to silence what was known under the doctrine of forgiveness that governs the Catholic Church, with Father [Name 079] even stating that **"nobody divulges their sins"**, statements that evidence the church's knowledge of what was happening regarding the acts of the civil defendant, it being inferred from the adversarial proceedings that visits were made to him and he was even exposed at a meeting attended by several parishioners, all these situations being known by the very top leader of the Church, without concrete actions being taken regarding his responsibility as parish priest before the members of the Catholic community who participated in its activities, an omission that is in no way justifiable, since, at the time what happened was disclosed by the media, clear and immediate actions were taken to avoid incurring greater risks that could have been timely resolved by **those responsible for supervising the acts of the accused priest**, especially considering that the accredited events occurred within the facilities of the Church of los Guidos itself. Given such omissions **in their duty of supervision (deber de vigilancia)**, this Court considers it legitimate to order Temporalidades de la Arquidiócesis de San José to pay the amounts awarded to the plaintiff jointly and severally. The foregoing by virtue of the fact that the Court established, according to the statements of Father [Name 079], that the defendant was created with the intention of being able to manage assets on behalf of the Church, with the defendant appearing as part of the Church's activity on an economic plane, it being clear that they function as an Economic Interest Group in which the different activities are recorded in an organized and functional manner, without the existing link between the two being able to be eliminated, a link which is also accredited by the fact that, on the date of the events, the civil defendant [Name 001] received a salary from the CCSS payroll, linked to Temporalidades de la Arquidiócesis de San José, so the plea of lack of passive standing must be rejected and Temporalidades de la Arquidiócesis de San José must be held as a civil defendant, and it must assume civil liability jointly and severally.*» (Cf. judgment, civil recital; emphasis supplied). From the foregoing transcription, it can be seen that the judgment uses the terms strict liability and fault-based liability for fault *in eligiendo or in vigilando* interchangeably, without them being synonyms. The appellant does the same. However, the content of the ruling is emphatic in attributing the joint and several liability of the Catholic Church for the lack of supervision of the priest, an aspect that is important to establish from now on, insofar as it coincides with the approach of the civil plaintiff and because there is no express normative provision that stipulates the strict liability (for created risk or obtained profit) of either the Catholic Church in general or Temporalidades de la Arquidiócesis de San José in particular. **(D)** <u>On the passive standing of the third-party civilly liable party</u>. Now, the bulk of the appellant's argument focuses, firstly, on establishing that Temporalidades de la Arquidiócesis de San José is not equivalent to the Catholic Church and that said legal entity has no relationship with the accused insofar as he acts as a priest. That is, the passive standing of his client to face the joint and several compensation that was set is questioned. To address the issue, it is fitting to outline the legal particularities and background surrounding the matter. **(D.1) Applicable legal framework.** Costa Rica is one of the few countries in the world whose constitutional text establishes a link between the State and a religion, in this case the Catholic one, per numeral 75. By virtue of this link (which does not date from the Constitution in force in 1949 but extends further back in time), there have been diplomatic relations with The Vatican and a Concordat was signed on October 7, 1852, ratified by Law No. 24 of December 2, 1852, and repealed less than two years later, by Law No. 45 of July 28, 1884, a product of the liberal and anticlerical ideas of the time. This context makes it easier to understand the issuance of Law No. 6062 of July 18, 1977, which provides: “*Article 1.- **Legal personality (personería jurídica) is granted to the National Episcopal Conference of Costa Rica (Conferencia Episcopal Nacional de Costa Rica), as well as to each of the Dioceses or Ecclesiastical Jurisdictions** into which the national territory is divided, for now that of San José, Alajuela, Tilarán, San Isidro de El General and Limón, and to those that may be established in the future. **Article 2.- Both the Conference, as well as each of the Dioceses, shall have full legal capacity to perform all kinds of acts and contracts within the framework of the laws in force.** Article 3.- The representative of the* *Conference shall be its President, elected by the members of the Conference itself, in accordance with its own statutes, and that of each Diocese shall be its corresponding diocesan bishop. All of them shall have the powers determined by article one thousand two hundred fifty-three of the Civil Code, without limitations of any kind. Those representatives shall be elected without a fixed term and their appointment may be revoked, at any time, by whoever made it. Such representatives must register in the Persons Section of the Public Registry, with formal protocolization of the agreement of their appointment. Article 4.- Likewise, both the Conference and each of the country's Dioceses may appoint all kinds of attorneys-in-fact with the powers they deem necessary to confer upon them in the act of their appointment. Article 5.- For legal purposes, the Conference must keep a minute book, which shall be legalized by the Books Department of the Directorate General of Direct Taxation of the Ministry of Finance. Article 6.- It shall become effective upon its publication. Transitory: The powers of attorney currently registered to represent the National Episcopal Conference of Costa Rica, or the different Dioceses constituted under Executive Decree number sixteen of May seventh, nineteen hundred seventy, shall continue to have legal effects as long as they are not modified or revoked.*” (bold type supplied). Note that, without being a state entity nor a commercial entity or one of another nature (association, foundation, etc.), the cited regulations endowed it with legal personality, under the name of the National Episcopal Conference of Costa Rica, and did the same with each of the dioceses or territories into which the ecclesiastical jurisdiction in a country is divided. In addition to this, the law was regulated by the Executive Branch and in the *Regulation that Develops the Scope of the law granting legal personality to the Episcopal Conference and Ecclesiastical Dioceses specifying the situation of the organs that comprise the Catholic Church* Executive Decree number 32370 effective since May 19, 2005, it is established:

«*Considering:* *1.- That by Law No. 6062, legal personality was granted to the National Episcopal Conference of Costa Rica, as well as to each of the Dioceses or Ecclesiastical Jurisdictions, conferring upon them for this purpose full legal capacity.* *2.- That although Law 6062 granted legal personality to the National* *Episcopal Conference of Costa Rica, as well as to each of the Dioceses or Ecclesiastical Jurisdictions into which the National territory is divided, **it neither provided for nor regulated the same regarding the rest of the internal organization of the Catholic Church in the country**, nor its projection in the national legal system.* *3.- That it is the function of the Ministry of Foreign Affairs and Worship, according to Executive Decree No. 19561-RE, of March 9, 1990, "to promote harmony between civil and ecclesiastical authorities" and "to protect the free exercise of Catholic worship and any other that does not oppose universal morality and good customs";* *4.- That canon 369 of the Code of Canon Law states: "A diocese is a portion of the people of God which is entrusted to a Bishop for his pastoral care with the cooperation of the presbyterate, so that, adhering to its pastor and gathered by him in the Holy Spirit through the Gospel and the Eucharist, it constitutes a particular church in which the one, holy, catholic, and apostolic Church of Christ truly exists and functions"; 5.- That Canon 447 of the Code of Canon Law also states: "The Episcopal Conference, a permanent institution, is the assembly of the Bishops of a nation or a particular territory who jointly exercise certain pastoral functions on behalf of the Christian faithful of their territory to promote, in accordance with the norm of law, the greater good which the church offers to humanity, especially through forms and programs of the apostolate fittingly adapted to the circumstances of time and place".* *6.- That **the Costa Rican State recognizes that the structure and organization of the Catholic Church are very complex** and has the intention of achieving harmony between the merely material and the spiritual.* *7.- That the Office of the Attorney General of the Republic, in pronouncement OJ-076-1999, of June 23, 1999, stated regarding its nature that it is a sui generis moral person and that "Within the civil order, the Catholic Church and the temporalities (temporalidades), due to their special nature, do not constitute civil partnerships or associations; however, they are recognized as a legal person through the universal and international recognition the Church enjoys. That recognition is specified in Costa Rica through a series of laws and decrees which gave rise to the existence of a legal entity denominated 'Temporalidades de la Iglesia'; through which the Catholic Church acts",* *8.- That the Ministry of Foreign Affairs and Worship must also "regulate the legal status of religious entities, without affecting the autonomy, their internal organization, and the rights they are entitled to for the free exercise of their activities", therefore in order to complete the legal provisions to harmonize them with the rules and norms governing the Catholic Church. **Therefore**,* *DECREES:* *Article 1.- This Regulation aims to develop the scope of Law No. 6062, of July 8, 1977, specifying the legal situation of all the organs that comprise the Catholic Church, respecting ecclesiastical regulations and the free exercise of its activities, both in the spiritual and temporal orders.* *Article 2.- For the purposes of this Regulation, **the following are considered part of the Catholic Church in Costa Rica**:* *1. Canonical Legal Persons:* a. ***National Episcopal Conference (Conferencia Episcopal Nacional)**,* b. ***Dioceses or particular Churches (Diócesis o Iglesias particulares)**,* c. *Cathedral Church (Iglesia Catedral),* d. ***Parishes (Parroquias)** and Quasi-Parishes (Cuasi-Parroquias),* e. *Rectorates (Rectorías),* f. *Chaplaincies (Capellanías) and* g. *Any other public juridical person of the Church formed according to the Code of Canon Law of the Catholic Church.* *2.* Church Hierarchy:

a. **Bishops** (Obispos) (whether diocesan, auxiliary or coadjutor, and emeriti), b. **Presbyters** (Presbíteros) and c. Deacons (Diáconos).

3. Other groups or those of Consecrated Life:

a. Religious institutes (Institutos religiosos), b. Secular institutes (Institutos seculares), c. Societies of Apostolic Life (Sociedades de Vida Apostólica).

Article 3.- The internal law of the Catholic Church is understood as the set of provisions and norms that govern the internal organization and activities of said Church, which include: the Code of Canon Law (Código de Derecho Canónico), Universal Ecclesiastical Law (Derecho Eclesiástico Universal), and Particular Ecclesiastical Law (Derecho Eclesiástico Particular). All of them shall have the value and scope that the Catholic Church itself confers upon them and shall produce legal effects for the subjects and the relationships regulated by them.

Article 4.- The National Episcopal Conference of Costa Rica (Conferencia Episcopal Nacional de Costa Rica), as well as each of the dioceses (diócesis), is recognized as having the faculty to issue the directives, policies, and regulations that will govern the organs and institutions that respectively comprise them, as well as the definition of their competencies and functional structure.

Article 5.- For the fulfillment of its purposes, the Catholic Church may adopt the institutional organization provided for in its internal ordering, as well as use the legal forms authorized in common legislation.

Article 6.- It shall take effect upon its publication. » (Highlighting supplied).

This Regulation is relevant because, in the first place, it establishes a link between the Catholic Church, the Episcopal Conference, the dioceses, the parishes, the bishops, and the presbyters, interconnecting them all to the same entity and recognizing the complex nature of the organization. In the second term, it legally recognizes, with civil and national effects, the value and scope that the internal religious provisions establish specifically regarding Ecclesiastical Law (universal and particular) and the Code of Canon Law (Código de Derecho Canónico). In this latter normative body are located these canons: “391 §1. It is for the diocesan Bishop to govern the particular church entrusted to him with legislative, executive, and judicial power according to the norm of law. §2. The Bishop exercises legislative power personally; he exercises executive power either personally or through Vicars general or episcopal, according to the norm of law; judicial power both personally and through the judicial Vicar and judges, according to the norm of law. 392 §1. Since he must defend the unity of the universal Church, the Bishop is to promote the discipline which is common to the entire Church, and therefore to insist upon the observance of all ecclesiastical laws. §2. He is to exercise vigilance so that abuses do not creep into ecclesiastical discipline, especially concerning the ministry of the word, the celebration of the sacraments and sacramentals, the worship of God and of the Saints, and the administration of goods. 393 The diocesan Bishop represents the diocese in all juridic affairs of the same (…) 448 §1. As a general rule, the Episcopal Conference comprises the prelates of all the particular churches of a same nation, (…) 449 §1. It is exclusively for the supreme authority of the Church, having heard the interested Bishops, to erect, suppress, or change Episcopal Conferences. §2. An Episcopal Conference legitimately erected has juridic personality in virtue of the law itself. 450 §1. By the law itself, membership in the Episcopal Conference belongs to all diocesan Bishops of the territory and those equivalent to them in law, as well as coadjutor Bishops, auxiliary Bishops, and other titular Bishops who, by charge of the Holy See or of the Episcopal Conference, fulfill a special function in the same territory; Ordinaries of another rite may also be invited, but with a consultative vote only, unless the statutes of the Episcopal Conference determine otherwise. (…) 451 Each Episcopal Conference is to draw up its own statutes, to be reviewed by the Apostolic See, in which, among other things, norms are to be established for the plenary assemblies of the Conference, the permanent council of Bishops, and the general secretariat of the Conference, and other offices and commissions are also to be constituted which, in the judgment of the Conference, can contribute more effectively to achieving its end. 515 §1. A parish is a certain community of the Christian faithful stably constituted in a particular church, whose pastoral care is entrusted to a pastor (párroco) as its proper pastor, under the authority of the diocesan Bishop. §2. It is exclusively for the diocesan Bishop to erect, suppress, or alter parishes; he is neither to erect, suppress, nor alter them notably without having heard the presbyteral council. §3. A legitimately erected parish possesses juridic personality in virtue of the law itself. (…) 523 (…) the provision of the office of pastor belongs to the diocesan Bishop, by free conferral, unless someone enjoys the right of presentation or election. 524 The diocesan Bishop must entrust the parish that has become vacant to the one whom, all the circumstances having been weighed, he considers suitable to exercise the pastoral care of the parish, setting aside any preference for persons; to judge suitability, he is to hear the archpriest and conduct appropriate investigations, having sought the opinion, if the case warrants it, of certain presbyters and lay Christian faithful.” From the transcribed text, it is worth highlighting, then, the equivalence (partial, although for our purposes minimally necessary) made there between the institutions called the local Catholic Church, the Episcopal Conference, Bishops, and Presbyters, and the level of obedience and dependence that the latter have with respect to the former, as well as the fact that the cited canons grant duties of selection and vigilance to the bishops regarding the pastors who require the status of presbyters to exercise their function and recognize the legal personhood (personería jurídica) of both in representation of the Catholic Church within the framework of their competencies. This is therefore relevant both for referencing the appellant's arguments regarding the different legal names and for legally deriving the obligation of selection and vigilance established by the civil law originally cited. In a similar sense, the Office of the Attorney General of the Republic (Procuraduría General de la República), upon issuing opinion No. 81 of April 13, 2011, in which it analyzed the legal regime of the Catholic Church and its distinct organs in Costa Rica, referred to the scope of the obligations in the following terms: «5-. The Episcopal Conference is a collegial body, composed of the Bishops of a Nation, organized to exercise pastoral functions regarding the faithful of that Nation, acting essentially through forms of apostolate. That organization is governed by Canon Law and the statutes it provides for itself, which are approved ultimately by the Apostolic See. 6-. The juridic personality of the Episcopal Conference is granted by canon 449.2 of the Code of Canon Law and in the Costa Rican case has been, furthermore, recognized by Law No. 6062 of July 18, 1977, developed by Executive Decree No. 32370 of May 2, 2005. A norm that expressly recognizes that ecclesiastical persons are "canonical legal persons" (personas jurídicas canónicas), article 2. Juridic personality that is different from that of a private organization.» To reach those conclusions, it based itself on the following reasoning: «…the Episcopal Conference, we find that it originates in Canon Law. According to canon 447, "it is the assembly of the Bishops of a certain nation or territory, who jointly exercise certain pastoral functions for the faithful of their territory, to promote, according to the norm of law, that greater good which the Church offers to humanity, especially through forms and methods of apostolate fittingly adapted to the particular circumstances of time and place." According to which, that collegial body has pastoral functions and its purpose is the promotion of the Church through the apostolate. Erecting, suppressing, or changing an Episcopal Conference is the competence of the supreme authority of the Church, canon 449, paragraph 1. The Conference is governed by its own statutes, which are reviewed by the Apostolic See or Holy See, canon 451. It is these statutes that regulate the collegial body and the possibility of constituting commissions and other organs, including matters concerning its leadership (president, vice-president, general secretary). The general decrees that the Conference issues are subject to the review of the Apostolic See for their efficacy. These provisions reaffirm that one is not dealing with a regulation of internal law. The juridic personality of the Conference arises from Canon Law itself, according to the provision in canon 449.2. This does not exclude national law from granting it recognition. This is the case of the provision in Law No. 6062 of July 18, 1977, which grants legal personhood to the Conference and to the Ecclesiastical Dioceses. According to said Law, legal personhood is granted to both the Conference and each of the Dioceses or Ecclesiastical Jurisdictions into which the national territory is divided. In reality, if we take into account that what is attributed allows both the Conference and each Diocese to have juridic capacity to carry out any class of acts and contracts within the Costa Rican legal system, article 2 of the Law, it is fitting to consider that what the law attributes is juridic personality to the Conference. The law establishes that the representative of the Conference shall be elected according to the statutes and shall have the powers that article 1253 of the Civil Code determines, without limitations of any kind. Executive Decree No. 32370 of May 2, 2005, Regulation that Develops the Scope of the law granting legal personhood to the Episcopal Conference and Ecclesiastical Dioceses, pointing out the situation of the organs that make up the Catholic Church, starts from the premise that the Law has granted juridic personality to the Conference and develops that personality based on the recognition of what is established in Canon Law. Therefore, the regulation comprised respects "ecclesiastical norms and the free exercise of its activities, in the spiritual order as well as in the temporal", article 1. In that sense, the Episcopal Conference, the dioceses or particular churches, the parishes and quasi-parishes, the Cathedral Church, the rectorates and chaplaincies are considered "canonical legal persons", article 2. So it is not a personality of Private Law. Moreover, it is recognized as internal law of the Catholic Church, Article 3, the set of provisions and norms that govern the internal organization and activities of said Church, which include: the Code of Canon Law, Universal Ecclesiastical Law and Particular Ecclesiastical Law. Provisions that govern the subjects and relationships proper to the Catholic Church. Notwithstanding, it is empowered in article 5 to: "Article 5.—For the fulfillment of its purposes, the Catholic Church may adopt the institutional organization provided for in its internal ordering, as well as use the legal forms authorized in common legislation". It follows from the foregoing that the national legal system has recognized that the juridic personality of the Episcopal Conference is governed by special provisions, which are not those of Civil Law. This condition was pointed out by the Office of the Attorney General of the Republic in Legal Opinion OJ-076-1999 of June 23, 1999, in which it was indicated, referring generally to the Catholic Church: "Within the civil legal system, the Catholic Church and the temporalities (Temporalidades), due to their special nature, do not constitute civil societies or associations; however, they are recognized as a legal person through the universal and international recognition that the Church enjoys. That recognition takes concrete form in Costa Rica, through a series of laws and decrees that originated the existence of a legal entity called 'Temporalities of the Church' through which the Catholic Church will act".» (Highlighting supplied). Note how this criterion of the state legal entity equates, for the purposes of general representation and within the framework of their competencies, the different denominations (Temporalities of the Archdiocese of San José, Episcopal Conference, Catholic Church, etc.) and, according to what has been set forth, endows them with "civil" juridical personality (since the latter recognizes the canonical one). In a similar sense, BRENES ÁLVAREZ (Pedro) pronounces. La condición jurídica de la Iglesia Católica en Costa Rica. Universidad de Costa Rica. Degree thesis to obtain the title of Licentiate in Law, 1976. Although it was established there that the remuneration of priests came from the faithful, was not salary-based, and, consequently, they were not workers and there was no labor relationship between them and the Episcopal Conference, it did so for the purposes of article 75 of the Law on Worker Protection, a topic that lacks importance here and that, by the way, is also not binding on this authority, given the principle of constitutional independence, with constitutional and conventional standing. Consequently, the fact that jurisdictional processes exist in which it is discussed whether a priest is or is not an employee of said Conference for other purposes (payment of social charges) neither generates lis pendens, prejudiciality or res judicata, nor obligates this chamber to adhere to said criterion. For all of the foregoing, the criterion of the appellant that its represented party lacks standing to intervene in the process is not correct, since, as the superior of the priest, who was performing parochial functions, and said priest being chosen by the bishop, the latter and the Episcopal Conference, the Dioceses or the Temporalities (all figures with canonical juridic personality recognized in civil law) are responsible for the non-observance of the duties of vigilance or selection incumbent upon them. (D.2) Doctrine of lifting the corporate veil. In any case, what the representatives of the civil defendant are attempting is to interpose the veil of a legal person (Temporalities of the Archdiocese of San José, Catholic Church, Episcopal Conference, Bishops, etc.) to avoid being held responsible (but yet obtain the benefits, viewed civilly and not from the spiritual plane, such as representation, obedience, etc.) for the natural persons (priests, presbyters, pastors, etc.) through whom they act. Therefore, our legislation authorizes the lifting of the corporate veil, so that whoever attempts to benefit improperly from it does not achieve their purpose. If this is so in the face of formally constituted civil legal persons, it applies, with parity of reason, to the organization of the Catholic Church because it is authorized by articles 20, 21, and 22 of the Civil Code, which establish: "Article 20: Acts performed under the protection of the text of a norm, which pursue a result prohibited by the legal system, or contrary to it, are considered executed in fraud of law and will not impede the proper application of the norm they had tried to evade. Article 21: Rights must be exercised in accordance with the requirements of good faith. Article 22: The law does not protect the abuse of a right or the antisocial exercise thereof. Every act or omission in a contract, which by the intention of its author, by its object, or by the circumstances in which it is performed, manifestly exceeds the normal limits of exercising a right, with damage to third parties or to the counterparty, shall give rise to the corresponding compensation and to the adoption of judicial or administrative measures that prevent the persistence of the abuse".

It concerns the theory of piercing the corporate veil and "Consists of the possibility for the adjudicator to determine who lies behind the legal entity. It seeks to resolve situations of legal significance not through the legal entity but through the real subjects who effectively act under that guise. Basically, it has been used in contractual breaches, acts of unfair competition, fraud on the law (fraude de ley) —particularly in tax matters—, fraudulent injury to the detriment of a third party (daño fraudulento en perjuicio de tercero), and in the bankruptcies of corporations (...) It is observed basically in the jurisprudential treatment in labor matters when resolving on the true employment relationship (contrato realidad) and determining the true worker-employer relationship. At the legislative level in tax law it is used particularly to determine the obligor and prevent the fragmentation of capital. In the recent Consumer Protection and Defense Law it allows the consumer to know the producer". First Chamber of the Supreme Court of Justice, vote number 128-F of 14:40 hours on December 16, 1998 (emphasis supplied). Note that if, for all purposes, the Catholic Church, the Temporalidades de la Arquidiócesis de San José, the Episcopal Conference, or the bishops use their parish priests to be represented, those denominations could hardly claim they lack responsibility for the damages these inflict on third parties.

(D.3) Background. In addition to the foregoing, although without references to those provisions, other courts have already established the responsibility that falls to Temporalidades de la Arquidiócesis de San José (name under which said organization operates, for civil purposes, in "material" matters). See that the Third Chamber, through vote number <u>2013-371</u> (J.M. Arroyo, C. Chinchilla, M. Pereira, R. Sanabria and J. Ramírez) declared inadmissible, for being time-barred, the cassation appeal filed against the vote of the Criminal Sentencing Appeals Court of the Second Judicial Circuit of San José <u>number 2012-2411</u> (L. Murillo, I. Estrada and H. Ulloa). In the latter, a case of similar characteristics was heard (sexual, in which Temporalidades de la Arquidiócesis de San José was held jointly and severally liable, as a result of tort liability). Due to the similarity of circumstances and because the arguments presented are shared by this chamber, in order to avoid repetition, we proceed to cite said precedent, noting that the transcription is extensive but necessary, given the controversial nature of the topic: «*ii) Nature of the ecclesial function and its significance in the social sphere:* Since its origins, the Catholic Church has had an evangelizing and guiding function in social ethics that has been maintained over the centuries. It is clear that the Church has been an institution with a great presence (…) whose activity in the political and social spheres has gone hand in hand with state activity, to the point that at some point there has been talk of a binomial between Church and State. While it is true that the Costa Rican State has opted for a tolerant model regarding freedom of worship allowing citizens to choose and profess other beliefs, the truth is that it also declares the "Roman Catholic Apostolic Religion" as the religion of the State, a provision that has constitutional roots (Article 75 of the Political Constitution). Thus, the Church's activity transcends to the plane of social morality to the point that, in the popular conception of the faithful, the Church exercises not only a guiding mission, but it is involved in an exemplary duty for society. Priests and persons who exercise any ecclesial function that involves an interpersonal relationship, such as Ministers of the Eucharist or Catechesis, and any other educational work of religious and teaching content, must fulfill a sacred duty of ethical guidance and a function that transcends conduct in the sense that it is not solely on the purely individual plane, but they must constitute themselves as living examples of the morality that the same Church, through the centuries and since its founding, has maintained and preached. *iii) On the joint and several civil liability of the church:* The Church, as indicated, performs a service to the community of its faithful, a service in which it assumes a determined position before the people it congregates, due to the very commitment of developing its evangelizing mission, of social action, and in which it incorporates faithful to delegate to them some ecclesial functions, a selection that goes through the criteria of the priest, the maximum representative in the community, of the organizational structure of the Catholic Church and of the Archdiocese to which he belongs. While it is true that religious practice is, in essence, free and no one is obliged to participate in or attend religious ceremonies and services, when one does so because one professes and practices the faith, one accepts the structure and organization of the Church and trusts in the decisions of the priest as such, some of which he even takes in association with members of the community. Thus, *if for the proper development of the service it provides and the organization of its activities, the priest, but the Church in general, makes selections* of lay people or parishioners to assist with some tasks typical of the Church's own activities, *the one who selects them and who hierarchically presides over that structure of delegations, must respond with its patrimony for the damages caused by the designated and delegated persons, in the fulfillment of such tasks, taking advantage of the facilities that this selection of which they have been the object* presents to them, facilities that common parishioners do not have precisely because such selection is based on criteria of the priest and established by the Diocese or Archdiocese to which he belongs, all these activities being part of the development of the service provided by the Catholic Church. As in the case of educators in general, *the ecclesiastical authorities have responsibility precisely because of that delegation that exists from a superior authority to a third party with whom there is a relationship of trust, for the fulfillment of obligations that themselves involve an interpersonal relationship, of service to the Church as an Institution and that are functions closely related to the Magisterium of the Church (including figures who exercise an ecclesial function in general) and, therefore, find meaning only in it, as part of the development of its function in society and the community of the faithful. In certain areas, such as pastoral care for example, special emphasis must be placed on the fact that more than the subordination relationship between the agent who delegates and the direct active subject of the harmful act, what is at stake is that—independently of the subordination—there does exist the obligation to exercise special prudence in selecting and monitoring, since a neglect in such precautions entails the production or risk of harm, and with it, violation of the trust that the historical social position of the ecclesial entails for the faithful.* In other words, an element of special relevance is the credibility that prevails or must have prevailed on the part of the passive subject of harm or abuse and the religious establishment, especially when it is the Church itself that welcomes minors into its fold, for the purpose of having them perform functions within the liturgy itself or attend catechesis courses in general. In conclusion, the existence of an inherent joint and several civil liability can be established for the conduct of those who, by their position before the community, hold guidance positions, whether in the educational sphere or in the ecclesial and catechetical order. It is fundamental that such officials and guides must exercise greater tact and take all precautions that provide certainty that, in delegating their delicate teaching and moral and religious formation functions, they do not create a situation in which the rights of the students and the faithful are not duly guaranteed. This is true, and it is so with greater emphasis, when dealing with persons who, due to their condition as minors, are especially vulnerable, hence the activity itself is already risky for a minor in light of the interrelation that exists between adults who are considered figures of authority, exemplary and trustworthy, and minors who wish to profess their faith through religious activities directed and entrusted by such figures. *iv.- Of the specific case:* It is necessary to transcribe the reasons that the Court set forth in the judgment, and upon which it bases the civil liability of the Temporalidades de la Arquidiócesis: "With respect to the civil liability of Temporalidades Arquidiócesis de San José, which is the legal entity that represents the Catholic Church, its liability derives from the absence of due vigilance over the accused who was performing a role in ecclesial service, a duty that the hierarch of the church had (…) It is clear that the civil defendant A is not a remunerated employee of the church, legally represented by Temporalidades Arquidiócesis de San José, as throughout the debate the witnesses linked to the exercise of the Ministry of the Eucharist or the pastoral informed the Court that the position is meritorious and voluntary, the selection is made by the parish priest based on consultations he carries out with parishioners and on his own observation of the social conduct of the person interested in assuming the function, and that after the selection is made, the future Minister receives training and assumes a commitment of a spiritual nature to the Catholic Church, and that this commitment is renewed every three years by the priest, who has the power to dismiss anyone he does not consider worthy of the position. However, *the absence of remuneration does not release the Church as a legal entity from its responsibility to exercise due vigilance over these persons who perform a role in the evangelization function, since these Ministers have contact with parishioners who attend the church or who open the doors of their homes to receive communion, with the understanding that the Ministers of the Eucharist have the backing of the Church* (…) the absence of the expected zeal on the part of its hierarchy is evident, thereby incurring a fault in monitoring (culpa in vigilando) that in this case had a harmful consequence for the civil plaintiff (…) must be assumed jointly and severally between the Catholic Church represented by Temporalidades Arquidiócesis de San José (…) As already indicated, the Church as an Institution and as a religious authority, provides a service to the community of the faithful, which in this case turned out to be a favorable scenario for two determining facts to converge: first, an inadequate selection of a person who was not suitable to perform within the canons of the Church's service and second: a lack of vigilance over what those persons—by their position distinct from the rest of the parishioners, regarding access and knowledge of the management of places, ornaments, and other objects and provisions necessary for the different celebrations—were obliged to do within that framework, which caused abusive sexual acts to be committed to the detriment of the minor, inside the temple, in a precinct to which not all persons have common or easy access, an act committed by a parishioner who was performing a special position, by delegation, and to the detriment of a girl who was also beginning work as a committed young lay person, that is, two persons selected by the maximum local representative of the Church and in the performance of their own functions in the Church. The malice with which the accused acted is proven and, as the norm contains a reversal of the burden of proof, the only way to exclude responsibility is by demonstrating that said action could not have been avoided even with all due diligence to monitor or select, which throughout the adversarial proceedings and not even with the evidence received at this venue, could be established. It was taken as true, however, that in delegating functions, the priest, representative of the Church, did not select (by choosing) or control (by monitoring) adequately, and by those in charge, the tasks entrusted to the accused. Those tasks, of course, did not authorize nor include the sexual abuse of minors, but they occurred precisely because of the conditions given and the opportunity for relationship thanks to the performance of such functions, even making use of the moral authority that said functions gave them and the position of authority before a vulnerable person, such as a minor who was taking his first steps in the service, precisely, of the Church. The paradox is precisely that victim and victimizer were in such condition, because of the selection that a member of the structure of the Church, Arquidiócesis de San José, had made of them, which makes even clearer the attribution of the harm caused to the patrimony of that which stands as the juridical and patrimonial head, so to speak, of such organization, in this case, the Temporalidades de la Iglesia. (…) Not only Article 1048.3 of the Civil Code sustains this joint and several civil liability, since it closely links fault in monitoring (culpa in vigilando) with fault in selecting (culpa in eligendo), but also Article 106, subsection 3 of the Penal Code when it provides: 'The action of the participants in a punishable act is joint and several, as to civil liability. The following are equally jointly and severally obligated with the perpetrators of the punishable act, for the payment of damages and losses: …Natural and legal persons who own establishments of any nature, in which a punishable act is committed by their administrators, employees, and other workers in their service', a provision in which the Church is undoubtedly and with much more reason included, not only because of that relationship that exists between the Church as a legal entity and a dependent acting in its service, as the figure of the Minister of Communion turns out to be, but because in the catechetical order, the trust that society places in all its representatives prevails and carries specific weight, hence the reasoning that the Court gave to grant the civil compensatory action is not only in accordance with the legislation that regulates tort liability, but also, according to the considerations set forth, the Church is an entity that must respond civilly, so the objection of lack of passive procedural standing (falta de legitimación ad causam pasiva) could not prosper." (Some of the highlights are supplied; others inherent in the original text). From the entire panorama described above, it is extracted, then, that when the judgment on the merits analyzes evidence such as: (i) the function that the accused had as a result of which the contact with the offended party occurred (presbyter, parish priest, in whose functional exercise he provided care for his parishioners, including the affected party); (ii) the place where the events occurred (priest's house (casa cural)); (iii) the framework of tasks carried out by the complainant (assigned by the accused as part of the compensation for the help provided by his represented party); (iv) the link between the priest and the bishop and the civil defendant and the obligation of the latter to appoint the former based on suitability for the position and to ensure that he performed it in the same manner; and (v) the legal bond that, even in the records of the C.C.S.S., is described between the joint civil defendant and the accused, it does nothing but scrutinize that underlying relationship that gave rise to the obligation to indemnify. Note that this last aspect is one more piece of evidence, not the only one, nor does it intend, as the appealing party seems to understand, to establish an employment relationship, but only a legal bond of dependency. In that exercise, this chamber does not note any irregularity, whether factual or probative derivation, or of legal framing or improper application of norms. Therefore, the link between the joint civil defendant and the accused and between the latter and the affected party was demonstrated; the harmful act and the obligation to indemnify arise from the norms initially cited that stipulate, in the hierarch, the obligation to select and ensure the faithful execution of what was mandated. That is, reference is made to a fault in selecting (culpa in eligiendo) or fault in monitoring (culpa in vigilando) (which is indeed fault, although for the act of a third party, so vote 48-2008 of the First Chamber cited by the appealing party does not apply), even though the a quo partially referred to something else, so it is unnecessary to allude to issues of strict liability, risk, or profit. For all the foregoing, since no defect is noted in what was decided, the arguments must be rejected.

THEREFORE:

(1) The appeals filed by the presbyter [Name 012] attorney-in-fact of Temporalidades de la Arquidiócesis de San José and by attorney Fernando Arias Zúñiga, in his capacity as public defender of the accused, are declared without merit.

(2) Ex officio, the conviction handed down against [Name 001] for two crimes of simple sexual abuse against a minor to the detriment of [Name 005], for which a total sentence of six years' imprisonment was imposed (three for each offense), is revoked and, in its place, an acquittal is decreed due to extinction of the criminal action by prescription, leaving the cited sanction without effect.

(3) The appeal filed by attorney Claudia Villafuerte Orellana, representing the Public Prosecutor's Office (Ministerio Público), is partially granted. Consequently, the appealed judgment on the act accredited during 2013 to the detriment of [Name 003] is partially annulled, solely with respect to the legal classification and the penalty, and on both matters, a remand is ordered so that the court determines whether it is facing simple or aggravated sexual abuse against a person of legal age and the corresponding punitive amount. In all other respects (the determination of the act to the detriment of [Name 003], the declaration of civil liability, the precautionary measures, and costs), the prosecutor's appeal is rejected and the judgment remains unaltered.

NOTIFY.

*Expediente: 14-002617-0994-PE (7)* *Imputado: [Name 001]* *Ofendido: Persons of legal age* *Delito: Violación and another* *LQUIROSG* *Expediente: 14-002617-0994-PE (7) - page: 2* **Rosaura Chinchilla Calderón** **Patricia Vargas González Kathya Jiménez Fernández** Appellate judges of criminal sentence "I. [...] Nonetheless, **even though this chamber agrees with the jurisdictional reasoning expressed above—that is, it agrees both on the need to maintain the double conformity (doble conforme) figure and with the assessments regarding the fact that its repeal by the legislator was an error, especially since it was supposedly done to comply with an international condemnation, and it likewise agrees that the Sala Constitucional, in its exercise of interpretation, disregarded human rights principles and revoked its own decision through an improper procedure (addition)— it cannot but recognize that, since a binding, express, and final vote of the Sala Constitucional exists on the point, it must be applied. Not doing so would incur errors similar to those attributed to said constitutional body, and there are no conventionality criteria, of a higher rank than domestic law, to disapply the constitutional vote**. Therefore, the pronouncement of the Sala Tercera on the topic of double conformity (doble conforme) does not bind this body, not only because the law does not grant it that character and there is a principle of a higher rank (constitutional and conventional) of judicial independence, but also because, in any case, it does not render void the analysis that has been set forth (in which the Sala Constitucional itself, in a subsequent and explicit vote on the constitutionality of the various interpretations, ruled contrary to that thesis). That is to say, the substantive criterion of the cassation body is not shared, insofar as it disregards the last binding vote of the Sala Constitucional. Therefore, in principle and from this perspective, the prosecutorial challenge must be heard, and the request, raised by the defendant's defense counsel during the hearing held, for it to be declared inadmissible must be rejected, with the responsibility of those who comprise this court being saved for the consequences of the Sala Constitucional's vote (not shared, but which binds us)." "II. [...] In the first place, effective judicial protection, or the human right to have judicial apparatuses that resolve conflicts in accordance with the law, is not hindered because, in the worst pandemic the world has seen in this century, the way of working is readjusted, guaranteeing the validity of the basic principles for judging people in order to protect the health and life of the community, avoiding mass displacements that generate the spread of the SARS-CoV-2 virus (and its variants) causing COVID-19. On the contrary, if as a result of existing technological development it is possible to establish measures that reconcile these rights, one should not hesitate to adopt them because, as the Inter-American Court of Human Rights stated in its Declaration of April 9, 2020, "*it is essential that access to justice be guaranteed*" and this is for all people. The opposite, that is, closing justice services, would indeed imply an impact on said right, and keeping them open while forcing displacements and face-to-face contacts in situations of real risk (areas with increases in infections or health alerts for people) seriously endangers the health and life of people, whose protection is, ultimately, the meaning of the entire legal system. It is necessary to remember that human rights are not absolute, but rather admit exceptions, as they must be reconciled with other (human rights) of other people given the characteristic of interconnection between them, which is inherent to the matter. If the Law admits that the greatest value protected by legal systems (the life and dignity of people) can be exempted when another person's life is at risk (cases of legitimate defense, for example), with greater reason must this exercise of balancing and proportionality be carried out when it involves rights of a different order, as occurs between life and health (higher priority) with respect to *some* *legal forms* that, in any case, can be varied for others *without ceasing to protect the substantive right protected* (the right of defense, to rebut and contradict evidence, etc.). Therefore, in principle, the mere existence of mechanisms other than in-person ones for the development of hearings in periods of crisis is not, in itself, a violation of constitutional principles, **unless it is proven that, due to the specific manner in which it was conducted in a specific case, an unconsented and unrectifiable impact on any of them was generated** [...].

On the contrary, through vote number 2016-326, this chamber, with a partially different composition from the current one (R.

[Nombre1], [Nombre2] and [Nombre3] .) has indicated: «cannot determine that said body has incurred in constant distractions or of such magnitude that they affected the necessary concentration that judges must have during the adversarial proceedings, without the mere confirmed fact that on certain occasions a judge uses said device (which is not necessarily for matters unrelated to the functions performed at that moment) being, [...]" "III. [...] The principle of the community of evidence (principio de comunidad de la prueba) implies that an element, once offered and admitted, can be used for different purposes, so that, even if that material could have been offered to prove facts from 2010, it does not prevent it from being used and extracting indicia regarding prior or different events." "IV. [...] The prosecutorial pleading did not describe that he was in a condition of vulnerability due to depression following a relationship breakup and that the accused took advantage of this. To hold this as proven, without an accusation stipulating it, would be a flagrant violation of the principle of correlation between accusation and sentence (principio de correlación entre acusación y sentencia), as the trial court correctly pointed out, even citing jurisprudence of the Inter-American Court of Human Rights. The appellant appears to have misunderstood the trial court's argument, as it does not criticize the failure to use the word 'rape' nor the failure to state that the conduct was committed with that particular intent. What is criticized is that the nature of the basis for the configuration of the base offense was not described, without which one cannot speak of an aggravating factor and it cannot be considered that, in the absence of this, the right of defense is not affected, since it was essential so that the circumstances are not modified, as has been intended in this venue." "V. [...] when contrasting the accused facts against the regulation then in force, it must be emphasized that, at that time, the accused's condition of priesthood (or religious minister) was not expressly stipulated as an aggravating factor in the law. Finally, in this series of preliminary considerations, it must be emphasized that the subsequent regulatory provisions (the current one and other changes introduced by Article 1 of Law No. 9406 of November 30, 2016, and which were recorded upon transcribing the applicable regulations as of this date) did not contemplate favorable regulations for the accused persons, since what they did was increase the penalties or the victim's age for the aggravating factor to originate, as well as create more grounds for aggravation. Therefore, the exceptions to the rules of extra-activity by retroactive application do not apply, and the ultra-activity of the criminal statute (now repealed) but in force at the date of the proven facts must be used.

[...]" V. [...] After that, there is only one law (the 2018 one, not applicable to the case due to the date of the facts). Why was it introduced? As its name indicates, "to restore the penalty" and this was so because if one looks at the first part of section 162 just cited (that is, through the 2007 reform, the article began by saying "If the abuses described in the previous article"). Prior to many of those changes, as is logical to think following the numerical sequence, before Article 162 there was 161, which described the prohibited conduct (sexual abuse of minors). However, as a result of legislative activism, articles with a "bis" were added. This occurred between 162 and 161, such that a 161 bis was placed, thereby changing the content of the criminal offense of sexual abuse against adults and, in doing so, the conduct was left without sanction. This is better outlined in a previous pronouncement of this chamber, vote number [Telf1] issued with a partially different integration from this one (R. [Nombre1], [Nombre2] . and [Nombre3] . with a note from the former) in which, additionally, the reasons are mentioned why, despite there having been an apparent decriminalization of the conduct, it cannot be applied to this case. Judges [Nombre1] and [Nombre4] expressed their criterion and that of various integrations of this chamber, making a detailed recount of what occurred (a criterion that is endorsed by the entirety of this integration): «IV. Note from judges [Nombre5] and [Nombre6] : The undersigned also consider it important to indicate that the accredited facts date [...]" 9057 of 2012 incorporated provisions for non-sexual crimes, so it is not of interest; iii) Law No. 9685 of 2019 extended the start of the calculation to 25 years after the victim's age of majority if proceedings had not begun, but in this case the judicial matter had already commenced with the complaint on August 28, 2014, when that law came into effect, so it did not apply; iv) Law No. 9826 of 2020 only alluded to new issues related to persons with cognitive disabilities, not pertinent to this case. Therefore, the matter must be dealt with under the original rules on the method of calculating the statute of limitations (prescripción) for criminal proceedings from 1996-1998 (maximum penalty for the crime if there are no interrupting or suspending acts, and half of that amount if there were). [...]

(A) On the criminal and civil statute of limitations (prescripción) rules. In section VI.A.1, it was stated why, in the opinion of this chamber, the criminal action for one of the victims is time-barred (prescrita). However, that decision does not affect the civil matter. [...]" **"VIII. [...] (C)** On the content of the merits decision and the classification of the types of civil liability (responsabilidad civil): [...] It is worth noting, however, that at the beginning of the transcript it is indicated that the claim against Temporalidades de la Arquidiócesis de San José was brought under the title of subjective liability (responsable subjetivo) for fault (culpa) in eligiendo and in vigilando, and not by pleading the theory of risk or strict civil liability (responsabilidad civil objetiva). Although nothing prevents, under the principle of iura novit curia (which also forms part of due process: see vote number [Telf1] issued by the Constitutional Chamber), a jurisdictional body from correctly applying the law that corresponds to a case, even if it is not the one invoked, the foregoing is emphasized to distinguish between the types of liability, which the appellant does not do. In matters of civil liability (responsabilidad civil), the doctrine distinguishes two types: [...] In this exercise, this chamber does not observe any irregularity, whether factual or in terms of evidentiary derivation, or in terms of legal framing or improper regulatory application. Therefore, the link between the jointly and severally liable party (demandada civil solidaria) and the defendant, and between the latter and the affected party, was indeed demonstrated; the harmful act was accredited, and the obligation to indemnify arises from the rules initially cited, which stipulate, for the principal, the obligation to choose and ensure the faithful execution of what is mandated. That is, it refers to a fault (culpa) in eligiendo or in vigilando (which is indeed fault, albeit for the act of a third party, so vote 48-2008 of the First Chamber cited by the appellant does not apply), although the a quo court partially referred to something else, such that it is unnecessary to refer to topics of strict liability (responsabilidad objetiva), or to topics of risk or profit." Appearing at this venue were the priest [Name 012] and his legal representative, attorney Vanessa Zúñiga Mora; attorney Fernando Arias Zúñiga, in his capacity as public defender of the accused along with him; attorney Claudia Villafuerte Orellana and attorney Carlos Meléndez Lugo, representing the Public Prosecutor's Office (Ministerio Público); and attorneys Carol Madrigal González and Yahaira Sibaja Peña, in their capacity as lawyers from the Victim's Civil Defense Office (Oficina de la Defensa Civil de la Víctima) and, **WHEREAS (RESULTANDO):** **I.-** That by judgment number 113-2021, at nine thirty hours on February eighteen, two thousand twenty-one, the Criminal Trial Court of the Third Judicial Circuit of San José, southwest venue, Pavas, resolved: "*THEREFORE (POR TANTO):* *In accordance with the foregoing, rules of sound rational criticism (sana crítica racional) and Articles 39, 41 of the Political Constitution; 1, 22, 30, 31, 45, 50, 71, 76, 103, 106, 161, 162 of the Penal Code; 265, 334, 341, 346, 343, 349, 351, 356, 358, 363, 364, 365, 366, 367 to 375 of the Code of Criminal Procedure; 1045 and 1048 of the Civil Code and the Rules in Force on criminal liability of the 1941 Penal Code, this Court BY UNANIMOUS VOTE declares [Name 001] responsible as the perpetrator of ONE CRIME OF SEXUAL ABUSE AGAINST AN ADULT TO THE DETRIMENT OF [Name 003] and TWO CRIMES OF SEXUAL ABUSE AGAINST A MINOR, TO THE DETRIMENT OF [Name 005], for which the penalty of TWO YEARS OF IMPRISONMENT is imposed for the first, THREE YEARS OF IMPRISONMENT for the second, and THREE YEARS OF IMPRISONMENT for the third proven crime, which accumulate materially with each other, whereby the TOTAL PENALTY IMPOSED* *FOR THE THREE PROVEN CRIMES IS EIGHT YEARS OF IMPRISONMENT.* *Likewise, [Name 001] is acquitted of all penalty and responsibility for a crime of Rape (Violación) that was attributed to him to the detriment of [Name 005]. The imposed penalty shall be served in the place and manner determined by penitentiary regulations, after crediting any pre-trial detention that the now-sentenced individual may have suffered for this matter. By majority vote, this Court, in order to guarantee compliance with the imposed sanction, imposes on [Name 001] the precautionary measures (medidas cautelares) of: 1) Maintaining a fixed address where he can be located. 2-) Signing in every fifteen days at the location where the case file is held. 3-) A prohibition on leaving the country is ordered. 4-) [Name 001] is ordered to surrender his passport to this Court, within a term of 24 hours. The imposed measures are ordered until the process concludes. Co-judge Mata Sánchez issues a dissenting vote (salva el Voto) and imposes pre-trial detention (prisión preventiva) for a period of six months against [Name 001] pursuant to numeral 258 of the Code of Criminal Procedure. The criminal process is resolved without a special award for costs. Regarding the Civil Action for Damages (Acción Civil Resarcitoria): The Civil Action for Damages is declared with merit, directly condemning [Name 001] and Temporalities of the Archdiocese of San José (Temporalidades de la Arquidiócesis de San José) jointly and severally, to pay for the moral damages caused to the Civil Plaintiff (Actor Civil) [Name 005], which are liquidated in the sum of five million colones. The civil defendants [Name 001] and Temporalities of the Archdiocese of San José are condemned to pay the costs generated by the filing of the Civil Action for Damages, which are set at one million colones. The sums granted herein must be paid within a term of 15 days from the finality of this ruling; otherwise, legal interest will accrue on the total amount granted in accordance with the interest rate of the Bank of Costa Rica's six-month term certificates of deposit. Once this judgment is final, enrol it in the Judicial Register (Registro Judicial) and issue certified copies (testimonien piezas) for the National Institute of Criminology (Instituto Nacional de Criminología) and the Sentence Enforcement Court (Juzgado de Ejecución de la Pena), issuing for this purpose the pertinent official letters, orders, and certified copies. The integral reading of the judgment is scheduled for the 25th day of February 2021 after sixteen hours.*" (sic, folios 748 and 749). *Cinthya Elena Ramírez Angulo; Siany Mata Sánchez Mauricio Jiménez Vargas. Trial judges.* **II.-** That, against the preceding decision, the priest [Name 012] as legal representative of Temporalities of the Archdiocese of San José; attorney Fernando Arias Zúñiga, in his capacity as public defender of the accused; and attorney Claudia Villafuerte Orellana, representing the Public Prosecutor's Office, filed an appeal (recurso de apelación).

**III.-** That, having verified the respective deliberation in accordance with the provisions of Article 465 of the Code of Criminal Procedure, the court considered the issues raised in the appeals.

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

The judge *Chinchilla Calderón* writes; and, **WHEREAS (CONSIDERANDO):** **I.- Admissibility**. Attorney Fernando Arias Zúñiga, in his capacity as public defender of the accused; the priest [Name 012] as legal representative of Temporalities of the Archdiocese of San José, the third party civilly sued (tercero civilmente demandado); and attorney Claudia Villafuerte Orellana, representing the Public Prosecutor's Office, filed an appeal against the judgment issued in the case record. Given that these were filed by means of reasoned briefs submitted to the trial court and within the legal deadline (since they were delivered, respectively, on March 17, 16, and 15, 2021, according to folios 763, 751, 795 of volume II, and because the judgment was integrally delivered on February 25, 2021, according to folio 750, the 15-working-day deadline did not expire until March 18, 2021), it must be admitted, without the need for further formalities, since otherwise, the mandate established in Article 8.2.h of the American Convention on Human Rights and what was resolved by the Inter-American Court of Human Rights in the case of Mauricio Herrera Ulloa vs. Costa Rica, judgment of July 2, 2014, would be breached. **(B)** By judgment number 1925-2019, at 11:15 hrs. on October 28, 2019, the Financial Criminal Trial Court of the Second Judicial Circuit of San José resolved: *"THEREFORE (POR TANTO): The appeal filed by attorney Claudia Villafuerte Orellana, representative of the Public Prosecutor's Office, is granted. The challenged judgment and the trial that preceded it are annulled, and a retrial (juicio de reenvío) is ordered before a new composition of the trial court. By virtue of the foregoing, a ruling on the challenge presented by the attorney of the Victim's Civil Defense Office is omitted, as it is deemed unnecessary. NOTIFY. Gustavo Adolfo Rojas Gutiérrez. Gustavo Gillen* *Bermúdez Raúl Madrigal Lizano. Sentence Appeal Judges."* As a result of this retrial, the mixed decision (convicting for abuses and acquitting for rape) now being challenged was issued, specifically, in the case of the prosecutorial representation, regarding the acquittal for the crime of rape. As can be verified, the now-appealed decision is the second consecutive acquittal judgment existing in this matter on the issue of rape. Given this, the defender requested, during the held hearing, that its inadmissibility be declared, applying the double conformity (doble conforme) rules. To determine if this challenge is formally acceptable, an additional analysis must be conducted because there are other legal provisions involved, as this court has referred to, both with a composition partly different from the current one —R. Chinchilla, A. Solís and A. Araya: vote number 2018-1210 of December 7, 2018— and with the current composition, through vote number 2021-536 at 08:40 hours on April 13, 2021. On those occasions, it was recapitulated that, through Law No. 8503 on the *Opening of Criminal Cassation (Apertura de la casación penal)*, in force since its publication in La Gaceta number 108 of June 6, 2006, Article 451 *bis* was added to the Code of Criminal Procedure. This numeral became 466 *bis* due to the inclusion of a series of articles through Law No. 8720 or *Law for the protection of victims, witnesses, and other subjects involved in the criminal process (Ley de protección a víctimas, testigos y demás sujetos intervinientes en el proceso penal)*. This article had the following text: *"Article* *466 bis.- Retrial. The retrial must be held by the same court that issued the judgment, but composed of different judges. The Public Prosecutor's Office (Ministerio Público), the private prosecutor (querellante), and the civil plaintiff (actor civil) may not file an appeal for cassation (recurso de casación) against the judgment produced in the retrial that reiterates the acquittal of the accused ordered in the first trial, but they may do so regarding the civil action, restitution, and costs. The appeal for cassation filed against the judgment of the retrial must be heard by the respective Court of Cassation, composed of judges different from those who pronounced on the previous occasion. If it is not possible to compose it with new judges, because the impediment covers both titular and substitute judges, or there is not a sufficient number of substitutes, the competence shall be assumed by the necessary titular judges, notwithstanding the cause and without disciplinary liability regarding them."* In accordance with that norm, among other things, the appeal for cassation —the only way to challenge a criminal judgment at that time— against a judgment that, for the second time, acquitted the accused, was not admissible. Numeral 466 *bis* of the Code of Criminal Procedure enshrined the principle of double conformity or single prosecution, whose purpose is to limit the punitive power of the State, so that individuals are not subjected to endless criminal proceedings, going through trials over and over again until the desired conviction is achieved. Through this, every person subject to criminal proceedings was guaranteed that, if after a second trial, they were acquitted again, they would not have to face a new trial, as this second acquittal judgment cannot be appealed. This provision was repealed by Article 10 of the *Law for the Creation of the Appeal of Sentence, other Reforms to the Challenge Regime and implementation of new rules of orality in the criminal process (Ley de Creación del Recurso de Apelación de la Sentencia, otras Reformas al Régimen de impugnación e implementación de nuevas reglas de oralidad en el proceso penal)*, No. 8837 of May 3, 2010. However, it was reinstated by the Constitutional Chamber (Sala Constitucional) upon admitting the action of unconstitutionality number 12-007781-0007-CO through **Vote No. 2014-13820 of August 20, 2014, at 4:00 p.m.** (binding *erga omnes* in accordance with Article 13 of the Law of the Constitutional Jurisdiction) stating: *"The Public Prosecutor's Office, the private prosecutor, and the civil plaintiff may not file an appeal for cassation against the judgment produced in the retrial that reiterates the acquittal of the accused ordered in the first trial, but they may do so regarding the civil action, restitution, and costs."* It was explicitly recognized there that this institute is an instrument that limits the punitive power of the State and guarantees the accused's right to be tried within a reasonable time, safeguarding not only the right to prompt and complete justice but also the principle of progressivity. While it is true that this norm originally operated for purposes of the appeal for cassation, in the opinion of this chamber, the context under which it was issued, in 2006, must be understood, since, at that time, the appeal for cassation was the only means to challenge criminal judgments. With the creation of the appeal (recurso de apelación) in criminal matters, it is precisely this that is the ordinary means to challenge a criminal judgment; therefore, although reference is made there to the appeal for cassation, in the current context of criminal procedural regulations, it must be understood that its concrete application is in relation to the appeal (recurso de apelación). Despite this, subsequently, the Constitutional Chamber, by majority, through a clarification proceeding adopted *sua sponte* through judgment No. 2014-17411, modified the content of that judgment number 2014-013820, thereby practically revoking its own pronouncement (without saying so and without that being permissible through the means of an addendum (adición) as per numeral 147 first paragraph of the Code of Criminal Procedure: "*provided that such acts* ***do not*** *import a modification of what was resolved*") and limited the validity of this institute solely to the appeal for cassation, thereby making it impossible to apply that norm which is in force by disposition of the same Chamber. After that, several judicial consultations of constitutionality were filed, both by this chamber with a composition partly similar to the current one (vote number 02-2016: R. Chinchilla, J. Campos and L. García) and by other criminal sentence appeals courts in the country (in matters involving adults and minors), occasions on which it was stated, in summary, that this change of constitutional criteria through an addendum and leaving the initial vote unscathed:

*a)* violated the principle of legal certainty (seguridad jurídica), as well as the fundamental right of every human being to be tried within a reasonable time and to limit the State's punitive claim to reasonable means and timeframes; *b)* did not adapt to the current challenge regime, because it is not possible to directly challenge a trial court's judgment that acquits the accused on a second occasion with the appeal for cassation. Trial judgments are challenged through the appeal and there is no appeal for cassation *per saltum* in any case. The Constitutional Chamber did not take into account that, with Law 8503 of June 6, 2006, the challenge regime was different and, against trial court judgments, only the appeal for cassation was available. When this changed, to be consistent with what had already been resolved regarding the institute of double conformity, it should have been indicated that said institute must be interpreted as meaning that no appeal could be filed against the trial court's judgment that has reiterated the accused's acquittal; *c)* disregarded the principle of progressivity, which prevents rights already conferred that expand the range of guarantees in protection of the fundamental rights enshrined in the Political Constitution or in human rights conventions from being discarded from a legal system, all of which had also been recognized in the majority judgment number 2014-013820 of the Constitutional Chamber. However, these consultations were, for the most part, declared inadmissible by the constitutional body (see votes numbers 2015-9884, 2015-9886, 2015-9965, 2016-1210, 2016-2380, 2016-3477, 2016-4919, and 2017-16725) and some were contingent upon other decisions (see votes numbers 2016-9452 and 2016-9453). Concomitantly, an action of unconstitutionality was filed, which was resolved through judgment number 16967-16 at 10:42 hours on November 16, 2016, where, by majority, it was declared without merit and it was indicated: *"This Chamber has already pronounced itself, through resolutions 2014-013820 and 2014-017411, in the sense that the reinstatement of Article 466 bis of the Code of Criminal Procedure refers only to the appeal for cassation and what is provided there cannot be extended to the appeal."* Finally, through vote number 2018-007208 of May 9, 2018, it reaffirmed: *"The consultation is answered in the sense that the reinstatement of Article 466 bis of the Code of Criminal Procedure refers only to the appeal for cassation* ***and what is provided there cannot be extended to the appeal****. Magistrates Castillo Víquez and Rueda Leal give additional reasons. Magistrate Hernández López and Magistrate Hernández Gutiérrez issue a dissenting vote and arrange to answer the consultation posed, indicating that Article 466 bis of the Code of Criminal Procedure is not unconstitutional as long as it is understood that the sole interpretation consistent with the law of the Constitution is to consider that against the second criminal acquittal judgment, no appeal may be filed on what was resolved regarding criminal responsibility."* (Emphasis supplied). Although this chamber unanimously considers that the latest majority vote of the Constitutional Chamber is not in accordance with the law (because it disregarded the principle of progressivity of human rights, by making the situation of the doubly acquitted person in the trial phase more onerous, and because it affected the principle of legal certainty derived from the change in the challenge system and from the fact that a substantive vote cannot be modified through the avenue of a clarification), it is clear that it cannot deviate from it, insofar as it has been reiterated expressly and clearly by that majority of the constitutional judges and there is no higher-ranking parameter (such as a human rights treaty or a ruling from an international court that expressly regulates the issue) to which reference can be made, a reason for which, in consideration of the provisions of Article 13 of the Law of the Constitutional Jurisdiction, said precedent must be applied, and the respective admissibility must be granted to the appeal, even though there are two bills in the Legislative Assembly (legislative files numbers 19906 and 19908) that aim to reform the cited institute to give it the scope it originally had and thereby comply with what was indicated in the constitutional votes regarding the reservation of law. However, none of that paralyzes the processing of this matter, without prejudice to the fact that, depending on what is resolved henceforth and the result of those initiatives, the retroactive application of the law may be invoked, which, in accordance with what was indicated by the Inter-American Court on Human Rights, should not be limited only to substantive law, as indicated in the cases of Vélez Loor vs. Panama of 2010 and Ricardo Canese vs. Paraguay of 2004. In the latter, it stated: *"178. For its part, the principle of retroactivity of the most favorable criminal law is contemplated in Article 9 in fine of the Convention* (...) *This norm must be interpreted in good faith, in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of the object and purpose of the American Convention, which is the effective protection of the human person, as well as through an evolutive interpretation of international human rights protection instruments. 179. In this sense, the most favorable criminal law must be interpreted as both that which establishes a lesser penalty for crimes, and that which encompasses laws that decriminalize conduct previously considered a crime, create a new cause for justification, for exculpation, and for impediment to the operability of a penalty, among others. These cases* ***do not constitute an exhaustive list of the cases that merit the application of the principle of retroactivity of the most favorable criminal law. It is worth noting that the principle of retroactivity applies to laws that have been enacted before the issuance of the judgment, as well as during its execution****, since the Convention does not establish a limit in this regard. 180.* Pursuant to Article 29(b) of the Convention, if any law of the State Party or other international treaty to which said State is a Party grants greater protection or regulates more broadly the enjoyment and exercise of any right or freedom, it shall apply the norm most favorable for the protection of human rights (...)" (the bold highlighting belongs to the original). However, none of that is within the purview of this chamber. Nor is it unknown that the Third Chamber, through vote number 2019-62 of January 18, 2019, with a then entirely interim panel (J. Robleto, S. Zúñiga, R. Segura, G. Alfaro, and R. López), dismissed a cassation appeal (recurso de casación) under such conditions. Given the importance of the arguments, despite the length of the citation, it is appropriate to transcribe the most relevant parts: "…the petition raised by the Public Prosecutor's Office (Ministerio Público) representative before the Cassation Chamber must be dismissed. To reach this conclusion, it is necessary to consider: 1) the historical background of the double conformity guarantee (doble conformidad) and the purpose of the rule; 2) the scope of the double conformity guarantee (doble conformidad) as determined by the rulings of the Constitutional Chamber (Sala Constitucional); 3) the scope of the double conformity guarantee (doble conformidad) in the specific case. Regarding the historical background, it is necessary to consider that the double conformity guarantee (doble conformidad) was initially provided for in article 451 bis of the Code of Criminal Procedure (Código Procesal Penal), when the only existing appeal against a first-instance judgment issued by criminal trial courts was a cassation appeal (recurso de casación). Subsequently, the numbering of the double conformity guarantee (doble conformidad) was moved to article 466 bis of the procedural code; later, the guarantee was repealed, and finally, it was reinstated in the legal system through an unconstitutionality action resolved by the Constitutional Chamber (Sala Constitucional). In this sense, it is necessary to contextualize that, as a result of the judgment of the Inter-American Court of Human Rights (hereinafter I/A Court H.R.) in the case known as Herrera Ulloa vs. Costa Rica, issued on July 2, 2004, the State was compelled to modify the appellate regime (régimen de impugnación) in such a way as to guarantee access to an informal, accessible, ordinary, and effective remedy (ARROYO GUTIÉRREZ, José Manuel. La reforma al régimen de impugnación de la sentencia penal en Costa Rica. El recurso contra la sentencia penal en Costa Rica. Asociación de Ciencias Penales- Editorial Jurídica Continental, San José, C.R., 2013, pág. 27). As is often the case with judgments of the international body, the I/A Court H.R. monitored compliance with what was ordered in the Herrera Ulloa vs. Costa Rica case and, through various resolutions, evaluated the procedure for the readjustment of the Costa Rican legal system, which deserves special attention, since the State had to carry out two legal reforms regarding the means of appeal (medios de impugnación) in criminal proceedings, in order to guarantee the rights provided for in Article 8.2.h of the American Convention on Human Rights (ACHR), a reform procedure through which the double conformity guarantee (doble conformidad) was incorporated and repealed. Among these compliance resolutions is that of September 12, 2005, where it was ordered to keep the compliance supervision procedure open regarding pending points, including for these purposes, the adaptation of the domestic legal system in accordance with Article 8.2.h of the American Convention on Human Rights. Subsequently, the first legal reform intended to comply with what was ordered by the I/A Court H.R. was Law No. 8503, called the Law for the Opening of Criminal Cassation (Ley de Apertura de la Casación Penal), published in the Official Gazette La Gaceta 108, of June 6, 2006, which modified the appellate regime of criminal proceedings, with the purpose of: 'de-formalizing and granting greater breadth and flexibility to the cassation appeal (recurso de casación) which in our criminal legal system constituted the legal mechanism for challenging the criminal sentence, so that it would constitute a procedural instrument materializing the right to appeal the ruling before a higher court, according to the parameters that the Inter-American Court of Human Rights stipulated in the Herrera Ulloa case' (VARGAS ROJAS, Omar; JIMÉNEZ GONZÁLEZ, Edwin Esteban. Impugnación de la sentencia penal: apelación, casación y revisión. Instituto de Investigaciones Jurídicas, San José, C.R., 2012, pág. 73). Precisely, it is through said legal reform that the guarantee of double conformity (doble conformidad) is included in our positive law, by adding article 451 bis to the Code of Criminal Procedure (Código Procesal Penal), which provided, as relevant: 'The retrial (juicio de reenvío) must be held by the same court that issued the judgment, but composed of different judges. The Public Prosecutor's Office (Ministerio Público), the private prosecutor (querellante), and the civil plaintiff (actor civil) may not file a cassation appeal (recurso de casación) against the judgment rendered in the retrial (juicio de reenvío) that reiterates the acquittal of the defendant ordered in the first trial, but they may do so regarding the civil action, restitution, and costs. The cassation appeal (recurso de casación) filed against the judgment of the retrial (juicio de reenvío) must be heard by the respective Cassation Court, composed of judges different from those who ruled on the previous occasion. If it is not possible to form the panel with new judges, because the disqualification affects both regular and substitute judges, or an insufficient number of substitute judges is available, jurisdiction shall be assumed by the regular judges who are necessary, notwithstanding the cause and without disciplinary responsibility for them.' (...) Said reform included in the criminal procedural regulations a limit on the punitive claim (pretensión punitiva) exercised either publicly or privately, establishing that upon two acquittal judgments rendered at trial, no cassation appeal (recurso de casación) could be filed, thus preventing returns ad infinitum, that is, rendering void the possibility of ordering retrials indefinitely and without any limit, which is deduced with absolute clarity from the historical data related to the legislative approval process. It must be remembered that the Law for the Opening of Criminal Cassation (Ley de Apertura de la Casación) and, consequently, the inclusion of the double conformity guarantee (doble conformidad) in the Costa Rican legal system, had as its background a proposal for legal reform from the Judiciary (Poder Judicial) that was discussed in Full Court (Corte Plena) and subsequently sent to the Legislative Assembly, where, through the previously established process, the bill became law of the Republic. It is precisely within the Judiciary body where the double conformity guarantee (doble conformidad) was widely discussed, expressly stating that the purpose of the rule is precisely to prevent the retrial of the case from being ordered indefinitely, with Justice González Álvarez pointing out on that occasion that: 'with this, what is known in legal doctrine as double conformity (doble conformidad) is being closed, which at this time is open and could occur, and cases of a spiral have indeed already occurred, that is, a trial is held for the defendant and he is acquitted, the Public Prosecutor's Office (Ministerio Público) appeals and the Chamber annuls the judgment, orders a retrial and in the retrial he is acquitted, the Public Prosecutor's Office (Ministerio Público) appeals, the Chamber annuls the judgment, and it returns again and he is acquitted again, that is, a spiral issue, and we are closing the possibility that the accusing party may not file an appeal against the second acquittal in the retrial (juicio de reenvío), so the only thing they could appeal would be regarding the civil action, restitution, and costs, closing, as has been the recommendation even derived from the postulates of the Constitutional Chamber (Sala Constitucional) ruling regarding closing the Public Prosecutor's Office (Ministerio Público) appeal, which is already quite closed, let us remember the thesis that at least the possibility is being given that it may appeal once against an acquittal judgment, which is already quite closed due to the pronouncements of the Constitutional Chamber (Sala Constitucional)' (article XIII of the minutes No. 38-2004, of the extraordinary session of the Full Court (Corte Plena), held at 1:30 p.m., on December 13, 2004, underlining does not correspond to the original). In the same vein, before a query made by Justice Villanueva, the then Justice Arroyo Gutiérrez stated in the same session that: 'we must put ourselves in the shoes of the person who is acquitted once and acquitted a second time and that the system continues to tell him: no, you have to go a third or fourth time to trial; that really violates every principle of legal certainty (seguridad jurídica) and the fundamental rights of individuals. In pure accusatorial systems, so to speak, Anglo-Saxon systems, the possibility the State has to accuse a person is unique, exceptionally, as you know, a review of a case may be possible, but here we have the State against a citizen whom it supposedly accuses when it has grounds to accuse him and takes him to trial and exposes him before the community as a possible criminal offender, and there is a jury and a judge who say you are innocent, you are guilty, a single time. We are giving the State two opportunities here, but you will understand that bringing a person to trial more than twice is truly a matter of fundamental human rights and fundamental legal certainty (seguridad jurídica), that is why it seems to me that the bill also saves a reasonable minimum of action on the part of the State against a criminally prosecuted person' (underlining does not correspond to the original), a position that was supported by the then President of the Supreme Court of Justice, Luis Paulino Mora Mora, who added: 'That is a thesis of an interpretation that some authors have given to Article 8.2.H of the American Convention on Human Rights, pointing out that it is a right of the defendant, but it is not a right of the accusation to have the possibility of a second review, that is why, according to that thesis in its most restrictive sense, the Public Prosecutor's Office (Ministerio Público) in the accusation only has one chance, if it does not achieve a conviction in the judgment, it has no possibility of further discussion. We have recognized here the possibility that the Public Prosecutor's Office (Ministerio Público) may file the appeal once; what is being done in this case is restricting that for the retrial (reenvío) it no longer has that possibility' (underlining does not correspond to the original). As recorded in the minutes cited supra, as part of the same discussion and in a new intervention, former Justice Arroyo Gutiérrez highlighted the value of legal certainty (seguridad jurídica), replying: 'Regarding this, 8.2.h guarantees the remedy in favor of the convicted person, it does not exclude the possibility of an appeal by the accusing party, it does not mention it. What 8.2.h does is guarantee it to the convicted person, and in that context, we too should not lose sight of what the American Convention does, because that is what is directly related to what they have ordered us to do, so, if I understood correctly, Justice González Camacho, effectively, when the possibility of the accusing entity, the Public Prosecutor's Office (Ministerio Público), to reiterate its accusation several times is limited, it is limited because it is not being eliminated, it is limited to two, obviously what is being done is trying to weigh legal certainty (seguridad jurídica), fundamental rights within the framework of the rule of law, and that the citizen knows at some point that it is over, because it could be perpetual.' Moreover, the Constitutional Chamber (Sala Constitucional) had already ruled on the double conformity guarantee (doble conformidad) as a guarantee of legal certainty (seguridad jurídica), establishing that: 'The prohibition is based on legal certainty (seguridad jurídica) in the exercise of the State's ius puniendi (sic), which cannot be maintained indefinitely until a conviction is achieved' (vote 2009-007605 of the Constitutional Chamber (Sala Constitucional), at 2:43 p.m., on May 12, 2009, underlining does not correspond to the original). Despite the aforementioned reform intended to comply with the judgment in the Herrera Ulloa vs. Costa Rica case, in the I/A Court H.R. resolution of September 22, 2006, related to the monitoring of compliance with the judgment, it was decided to keep the compliance supervision procedure open regarding the adaptation of the domestic legal system to Article 8.2.h of the American Convention on Human Rights. However, it must be considered that the report submitted by the State to the I/A Court H.R., which served as the basis for keeping the procedure open, was sent on January 30, 2006, that is, approximately 6 months before the approval of the Law for the Opening of Criminal Cassation (Ley de Apertura de la Casación), so on that occasion, compliance with the judgment considering said reform could not be evaluated. Subsequently, as recorded in the resolution of the Presidency of the I/A Court H.R. of June 2, 2009, issued on the occasion of the supervision of compliance with the I/A Court H.R. judgment cited supra, the Inter-American Commission on Human Rights (hereinafter IACHR) made the I/A Court H.R. aware of the inadequacy of the Law for the Opening of Criminal Cassation (Ley de Apertura de la Casación) to comply with the provisions of the ACHR, pointing out: ‘That the Inter-American Commission analyzed the so-called Opening Law and considered that it "broadens criminal cassation to a certain extent in order to adapt the cassation appeal (recurso de casación) to Article 8.2.h of the Convention through three fundamental changes: i) the relaxation of the admissibility requirements for the cassation appeal (recurso de casación); ii) the granting of additional powers to the authorities that must decide on the appeal to review in toto the actions of the court of first instance; and iii) the relaxation regarding the admission of evidence. The Commission took note of "these important reforms promoted by the State [...]; at the same time considered that their effectiveness and the consequent compliance with what was ordered by the Tribunal in its judgment of July 2, 2004, must be assessed based on the application of the new model to specific cases." 19. That, in relation to the statistical information provided by the State, the Inter-American Commission considered that it has not been demonstrated that the State's procedural system has been redesigned to provide greater judicial guarantees to citizens. Finally, it requested the Court to "declare that the State adopted legislation aimed at adapting the Costa Rican legal system with the provisions of Article 8.2.h of the American Convention, in relation to Article 2 thereof, whose application and consequent assessment of effective compliance is still pending, so the supervision procedure must remain open regarding this point"’ (underlining does not correspond to the original), so a private hearing had to be convened to verify these IACHR observations. Subsequently, as recorded in the I/A Court H.R. resolution of July 9, 2009, related to the compliance supervision procedure, the representatives of the State of Costa Rica pointed out that Bill No. 17.1443, called the 'Law for the Creation of the Judgment Appeal Remedy, Other Reforms to the Challenge Regime, and Implementation of New Orality Rules in Criminal Proceedings' (Ley de Creación del recurso de apelación de la sentencia, otras reformas al régimen de impugnación e implementación de nuevas reglas de oralidad en el proceso penal) was in process, a reform that the State reported meant the culmination of: 'an arduous process of partial reforms dating back to the 1980s, all aimed at ensuring compliance, by the domestic procedural system [of Costa Rica], with the obligations arising from the American Convention, especially Article 8.2.h, in relation to Article 2 thereof' (underlining does not belong to the original). However, in the absence of the bill's approval, the I/A Court H.R. kept the compliance supervision procedure open. Finally, through Law No. 8837, called the Law for the Creation of the Sentence Appeal Remedy, Other Reforms to the Challenge Regime, and Implementation of New Orality Rules in Criminal Proceedings (Ley de Creación del Recurso de Apelación de la Sentencia, otras Reformas al Régimen de Impugnación e Implementación de Nuevas Reglas de Oralidad en el Proceso Penal), published in the Official Gazette La Gaceta 111, of June 9, 2010, compliance was given to what was ordered in the Herrera Ulloa vs. Costa Rica case, as deduced from the I/A Court H.R. resolution of November 22, 2010, related to the compliance supervision procedure. On that occasion, the I/A Court H.R. stated that the State: 'considered that the reforms introduced by the Opening Law needed to be strengthened and, motu proprio, initiated a new legal reform process, which concluded with the enactment of Law No. 8.837. Through said law, in addition to maintaining the cassation appeal (recurso de casación), the appeal remedy for criminal judgment (recurso de apelación de sentencia penal) is created, which, inter alia: a) allows the judgment to be reviewed by a higher court; b) consists of a simple remedy, without major formalities, which avoids requirements or restrictions that violate the essence of the right to appeal, and c) enables the comprehensive examination of all issues debated and analyzed by the trial court. 16. The Inter-American Court concludes that, by guaranteeing the possibility of a broad review of the judgment issued by a criminal trial court domestically, Costa Rica has fully complied with the fifth operative paragraph of the Judgment and, with this, concludes the present case. The future application of the judgment appeal remedy (recurso de apelación de sentencia) is not a matter for the supervision of compliance in the Herrera Ulloa case.' Despite the foregoing, through article 10 of Law No. 8837, the double conformity guarantee (doble conformidad) provided at that time in article 466 bis of the Code of Criminal Procedure (Código Procesal Penal) (formerly article 451 bis of the Code of Criminal Procedure (Código Procesal Penal), but whose location in the procedural code was changed due to Law No. 8720 of March 4, 2009, called the Law for the Protection of Victims, Witnesses, and Other Participants in Criminal Proceedings, Reforms and Additions to the Code of Criminal Procedure (Código Procesal Penal) and Penal Code (Código Penal)) was repealed. On the other hand, regarding the process for the reinstatement of the double conformity guarantee (doble conformidad), through a filing dated June 13, 2012, an unconstitutionality action was filed against the elimination of the guarantee cited supra, an action that was granted through vote of the Constitutional Chamber (Sala Constitucional) 2014-013820 of 4:00 p.m., on August 20, 2014, ordering that: 'The unlimited power to challenge an acquittal ruling may also indirectly harm the principle of swift and complete justice (justicia pronta y cumplida); unlimited challenge may legitimize, in some cases, a process of indeterminate duration, despite repeated acquittal rulings. The repressive power is an act of such relevance over fundamental rights, especially liberty, good name, and privacy, that it requires, in any event, that the possibility of bringing an acquitted citizen to trial multiple times have an insurmountable limit, the definition of which, of course, corresponds to the ordinary legislator, which in this case refers to the reiteration of a cassation appeal (recurso de casación), when an acquittal ruling has been issued. Thus defined the repealed norm, imposing a limit that is constitutionally reasonable and proportional.' From reading the entire ruling of the Constitutional Chamber (Sala Constitucional), the following corollaries can be extracted: a) from the principle of legal certainty (seguridad jurídica), the need to limit the ius puniendi can be inferred; b) it is not possible to maintain an authorization to challenge an acquittal issued in a criminal case in an unlimited manner; c) the State cannot act as a pursuer ad infinitum; d) the guarantee of appeal provided in Article 8.2.h of the American Convention on Human Rights belongs exclusively to the defendant; e) the second acquittal is unchallengeable via cassation; f) the unlimited power to challenge can harm the principle of swift and complete justice (justicia pronta y cumplida), legitimizing, in some cases, proceedings of indeterminate duration; g) the principle of ne bis in idem imposes a restriction on the possibility of prosecuting a citizen, in this case, through a limit on the challenge, although the mentioned principle (the Chamber indicates) is not fully applicable in the double conformity guarantee (doble conformidad).

Subsequently, the Constitutional Chamber (Sala Constitucional), acting on its own motion (de oficio), through resolution 2014-17411 of 4:31 p.m., on October 22, 2014, supplemented the resolution cited supra, using a literal grammatical interpretation of article 466 bis of the Code of Criminal Procedure (Código Procesal Penal), indicating that: 'as the reinstated rule only refers to the cassation appeal (recurso de casación), what is provided therein cannot be extended to the appeal remedy (recurso de apelación). According to the literal meaning of the norm being revived, the limitation was provided only for cassation, and not for appeal, since the appeal was incorporated only in 2011 and the norm reviving this limitation on cassation dates from 2006. Therefore, the norm revives the limitation only for the extraordinary remedy of cassation, because the norm was originally provided only for it, as the appeal did not exist at that time' (underlining does not correspond to the original). The constitutionality of the scope of the double conformity guarantee (doble conformidad) was objected to through a new unconstitutionality action brought by the Public Defender's Office (Defensa Pública), given the existence of a criminal proceeding in which two acquittal judgments were rendered, and the defendant was awaiting a third debate due to a retrial (reenvío) ordered in that case by the Criminal Sentence Appeal Tribunal of the Second Judicial Circuit of San José, so that, in the petitioners' view, limiting the double conformity guarantee (doble conformidad) to cassation without including the appeal prevents the full application of the institute. However, the Constitutional Chamber (Sala Constitucional) denied the extensive application of the double conformity guarantee (doble conformidad) to the appeal remedy for criminal judgment (recurso de apelación de sentencia penal) and reiterated that the limitation on the exercise of the ius puniendi through the double conformity guarantee (doble conformidad) arises only in relation to the cassation appeal (recurso de casación), establishing that the limitation of the appeal after two acquittals must be established by the legislator and not through case law. In this sense, the aforementioned vote indicated: 'This Chamber has already ruled, through resolutions 2014-013820 and 2014-017411, to the effect that the reinstatement of article 466 bis of the Code of Criminal Procedure (Código Procesal Penal) refers (sic) only to the cassation appeal (recurso de casación) and what is provided therein cannot be extended to the appeal remedy (recurso de apelación). The resolutions of this Chamber cannot be the object of an unconstitutionality action. What this action seeks is for this Chamber to change what was expressed in the indicated resolutions, with no appeal whatsoever possible against the resolutions of this Chamber. Moreover, the claim for an interpretation of article 466 bis of the Code of Criminal Procedure (Código Procesal Penal) is within the competence of the legislator, by seeking to include the appeal remedy (recurso de apelación) within that norm' (vote 2016-016967 of the Constitutional Chamber (Sala Constitucional), at 10:42 a.m., on November 16, 2016, underlining does not correspond to the original). Finally, faced with a factual scenario where the defendant was acquitted on two occasions at trial and, despite this, the Criminal Sentence Appeal Tribunal ordered the retrial (reenvío) of the case, the Constitutional Chamber (Sala Constitucional) reiterated what was stated in resolution 2016-016967 cited supra and added that: 'the conformity of the challenged norm with the Political Constitution has already been resolved by this Constitutional Court on reiterated occasions, referring, expressly, to the arguments formulated to the effect that, not only should the unconstitutionality of the aforementioned precept be declared, but rather, that this Constitutional Court should annul and modify the criteria set forth in Decisions Nos. 2014-013820 and 2014-017411, in relation to that regulation, which cannot be done through this channel. In short, it is a matter in which this Constitutional Court must not intervene, but rather, on the contrary, its resolution concerns the Legislator, who must determine the feasibility of extending the scope of that precept to the appeal remedy (recurso de apelación), as the plaintiff intends, which falls within its scope or freedom of normative configuration. Therefore, the questioned precept is not considered unconstitutional, and consequently, the action must be dismissed on the merits' (vote 2018-006095 at 9:20 a.m., on April 18, 2018).

Having clarified the background of the double conformity (doble conformidad) and its purpose, as well as the process for its incorporation into the legal system, its subsequent repeal, and finally its reinstatement, it is necessary to establish when the double conformity is applicable, taking into consideration the limits set in the ruling of the constitutional jurisdiction regarding the scope of the institute. In this sense, it must be borne in mind that Article 13 of the Ley de Jurisdicción Constitucional provides that the jurisprudence and precedents of the constitutional jurisdiction are binding erga omnes, and therefore, among all reasonable ways of interpreting the norm, one must always choose that which is consistent with constitutional jurisprudence. Thus, the votes of the Sala Constitucional set forth above, related to the scope of the double conformity, constitute an insurmountable barrier in the legal interpretation that the jurisdictional body cannot ignore when resolving a conflict. In this case, from votes 2014-013820, 2014-017411, 2016-016967, and 2018-006095, all from the Sala Constitucional and related to actions of unconstitutionality regarding the double conformity, it follows that when Article 466 bis of the Código Procesal Penal establishes a limit for challenging the second acquittal, a literal grammatical reading of the norm must be made, understanding that the limit to the ius puniendi is restricted to the assumptions of the cassation appeal (recurso de casación) and not the sentence appeal (recurso de apelación de sentencia), as expressly recognized by the constitutional body (...) In the specific case, even though the jurisprudence of the constitutional body has made a literal grammatical reading of Article 466 bis of the aforementioned regulation, based on said method of interpretation (...) regardless of the reasoning set forth by the ad quem and its adaptation to the provisions of the Sala Constitucional in relation to the possibility it had of analyzing the merits of the sentence appeal instead of declaring it inadmissible, the truth is that the factual assumption provided for in Article 466 bis of the Código Procesal Penal is verified here and, consequently, in the face of a second acquittal issued by the trial court, a cassation appeal cannot be filed, a conclusion that is consistent with the jurisprudence of the Sala Constitucional, making it inappropriate to analyze the correctness or not of the ad quem's resolution. This conclusion is consistent with a subjective voluntarist or teleological interpretation, insofar as, from the background of the norm, it can be clearly established that the purpose of the double conformity was to prevent re-trial proceedings (juicios de reenvío) ad infinitum and seeks to guarantee the principle of legal certainty. Regarding this aspect, it must be remembered that the double conformity is a primary guarantee (FERRAJOLI, Luigi. Derechos y garantías. La ley penal del más débil. Editorial Trotta, seventh edition, Spain, 2010, p. 43) of the fundamental right not to be prosecuted criminally indefinitely (GUTIÉRREZ CARRO, Agustín. La inimpugnabilidad de la segunda absolutoria penal como garantía de derechos fundamentales: un ejemplo del enfoque postpositivista al servicio del garantismo. Revista Digital de la Maestría en Ciencias Penales, number 8, 2016, consulted at [https://revistas.ucr.ac.cr/index.php/RDMCP/issue/view/2191](https://revistas.ucr.ac.cr/index.php/RDMCP/issue/view/2191)). From this perspective, to claim that the double conformity only proceeds when both the ad quem and the a quo resolve in accordance with the law implies a requirement not provided for in the norm that would empty the guarantee of the double conformity of its content and would obligate that, in all cases, the Sala Tercera of the Corte Suprema de Justicia must review the merits of the resolution of the Tribunal de Apelación de Sentencia Penal to see if it conforms to substantive and procedural regulations, which is absurd, since in the balancing carried out by the legislator between the principles of legal certainty and effective judicial protection (tutela judicial efectiva) when establishing the double conformity as a limit to the ius puniendi, prevalence was given to legal certainty when two acquittals are presented, without considering whether the acquittal was appropriate or not. For these reasons, considering that in the specific case two acquittals have been presented at the trial stage, evaluating the purpose of the norm, in accordance with the scope of the resolutions of the Sala Constitucional related to the double conformity, it must be concluded that the appeal filed by the representative of the Ministerio Público (...) must be declared without merit." Notwithstanding, even though this chamber agrees with the aforementioned jurisdictional reasoning—that is, it agrees both on the need to maintain the figure of the double conformity and with the assessments referring to the fact that the repeal of the provision by the legislator was an error, especially when supposedly doing so to comply with an international condemnation, and, likewise, it agrees that the Sala Constitucional, in its exercise of interpretation, disregarded principles of human rights and revoked its own decision through an improper means (addition)—it cannot but recognize that, as there is a binding vote from the Sala Constitucional, express and final on the point, it must be applied. Not doing so would be to incur errors similar to those attributed to said constitutional body, and there are no conventionality criteria, of a higher rank with respect to domestic law, to set aside the constitutional vote. Therefore, the pronouncement of the Sala Tercera on the subject of the double conformity does not bind this body, not only because the law does not give it that character and there exists a higher-ranking principle (constitutional and conventional) of judicial independence, but also because, in any case, it does not nullify the analysis that has been set forth (in which the Sala Constitucional itself, in a later and explicit vote on the constitutionality of the various interpretations, resolved contrary to said thesis). That is, the substantive criterion of the cassation body is not shared insofar as it disregards the final binding vote of the Sala Constitucional. Therefore, in principle and from this perspective, the prosecution's challenge must be heard and the request made by the defendant's defender during the hearing held, for it to be declared inadmissible, must be rejected, saving the responsibility of those who make up this court for the consequences of the vote of the Sala Constitucional (not shared, but which binds us).

**II.-** As a **first ground of the public defender's appeal**, the violation of the principle of effective judicial protection, action contrary to due process in the receipt of evidence, and disintegration of the court by using electronic means irregularly are alleged. He states that although he understands that, due to the pandemic circumstances, the use of technological tools is appropriate, he reproaches the way it was used in the specific case since on December 3, 2020, in one of the continuations of the debate and when the tenth day of suspension was about to be reached, two of the alternate judges (con-jueces) connected to the hearing, via *Microsoft Teams*, from their homes, since they had been issued health orders (órdenes sanitarias) due to the suspicion of being infected with SARS-CoV-2. He states that, instead of annulling the trial, it was decided to continue it by that means and to incorporate documentary evidence, but that was a disintegration of the court in violation of the principle of effective judicial protection, the content of which he explains. He indicates that the judges who were not physically in the hearing room were not apprised of the content of the documentary evidence incorporated that day, since they did not have access to the physical case file, and that the stress factor that both were experiencing—being under a health order regarding a disease that, by that date, had killed two million people in the world—could affect the levels of concentration, immediacy (inmediación), and integration. He says that the protocol defined in circular 102-2020 alludes to the possibility that the parties connect remotely, not that the court does so. Furthermore, in its conclusions, he referred to the psychological expert reports (pericias) conducted on the victims and which were incorporated on December 3, 2020, but the judgment did not allude to the topic, which demonstrates, in the appellant's opinion, the magnitude of the disintegration, since that evidence was incorporated on that same date and no attention was paid to it. He transcribes jurisprudential pronouncements on the integration of courts and alludes to the vote of the Sala Constitucional number [1624-2020](https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-959463) which, according to what he sets forth (although this chamber did not locate any pronouncement on that topic with that number), indicates that, although technological measures are permitted due to the pandemic, these must respect fundamental rights, and he adds that a botched job (chapuza) that brings with it the annulment of the basic content of a guarantee cannot be permitted. He asks that the appealed judgment be annulled. As a **second ground of appeal of the defense's appeal**, the violation of the principles of effective judicial protection, due process, and natural judge in the receipt of evidence is alleged, due to disintegration of the court, inasmuch as, during the development of the debate, specifically while testimonial evidence was being received, Judge Mauricio Jiménez Vargas remained asleep for several moments that the defender cites, alluding to the audiovisual files and time sequences (five in total), and that all of this happened during the statements of the victim [Name 005] and of the accused. He transcribes, in part, vote number 1559-2019 of this court (with a different panel) and asks that the judgment be annulled. *During the oral hearing, the appellant did not refer to this topic, nor did the accused do so.* When answering the appeal, the prosecuting representation asked that it be rejected. Regarding the first argument, she indicated that, although what happened with the judges was so, she considers that the defender is disloyal because he does not inform that neither he nor his client expressed opposition to the acts of the debate being carried out in that manner. She adds that the judge who was present in person directing the debate explained to the parties the way in which that hearing would be held and, starting at minute 00:05:06, gave the floor to all the parties so they could state their position on the matter, and the defender stated that it was in his interest and that of his client that the trial could continue. She states that the court's technician had coordinated beforehand with the defender so that he would not present the defense witness who was scheduled to be received that day, which shows the total consent of the parties for the acts of the debate to be carried out in the way they were done, and for the order of incorporation of evidence to be altered and the early incorporation of the documentary evidence to be admitted. Therefore, the documentary elements admitted in the order to open trial (auto de apertura a juicio) were incorporated, mentioning the same, without any of the procedural subjects requesting the full reading of any of the documents. By being connected via *Microsoft Teams*, Judge Ramírez Angulo and Judge Jiménez Vargas were able to observe and listen to the incorporation that, by reading, the presiding judge of the court, who was physically in the hearing room, was carrying out, and it is not until the deliberation phase when, in practice, judges apprise themselves of the full content of the admitted documents. She concludes that it is materially impossible for the three judges, in this or any other trial, to jointly read the documents at the moment of the incorporation of the evidence. Regarding the other argument, she states that, in effect, upon observing the videos at the moments indicated by the appellant, it can be appreciated that Mr. Jiménez closes his eyes, and this could be due to tiredness or even to refresh his eyes, but that it is not possible to assert conclusively, or in a reasoned manner, that these biological reactions are interruptions in the cognitive and perception development of the judge in the face of the parties' arguments, the reproduction of the evidence, or the rites of the debate. She indicates that this trial extended over several months, that the accounts of the victims and the statement of the accused were extensive, and that, even if the entirety of the debate is observed, it can be deduced that the appellant suffered the same biological consequences he accuses, without this implying that he was sleeping, since biologically a person can close their eyes without this implying that they are dozing, and therefore she asks to reject the complaint. During the oral hearing, the prosecutor who appeared stated that the protocol stipulated in circular number 102-2020 of Corte Plena was complied with and that only assumptions are made that there was no access to the documents. He alludes to votes of this court on the topic of judges who doze (votes number 2016-326 and 2016-346). The representative of Temporalidades de la Arquidiócesis de San José said that she would not pronounce on this appeal, and the lawyer from the Oficina de Defensa Civil de las Víctimas did not elaborate on the topic. **The complaints are not admissible** and will be heard jointly as they allude to topics related to the manner in which the debate was conducted. In the first place, effective judicial protection, or the human right to have judicial apparatuses that resolve conflicts in accordance with the law, is not hindered because, in the worst pandemic the world has seen in this century, the way of working is readjusted, guaranteeing the validity of the basic principles for the judgment of persons in order to protect the health and life of the community, avoiding mass displacements that generate the propagation of the SARS-CoV-2 virus (and its variants) that causes COVID-19. Rather, if as a result of existing technological development it is possible to establish measures that reconcile those rights, one should not hesitate to adopt them, because, as the Inter-American Court of Human Rights indicated in its [Declaration of April 9, 2020](https://www.corteidh.or.cr/tablas/alerta/comunicado/declaracion_1_20_ESP.pdf), "it is essential that access to justice be guaranteed" and this is for all persons. The contrary, that is, closing justice services, would indeed imply an impact on said right, and keeping them open, forcing displacements and in-person contacts in real risk situations (areas with increases in infections or health alerts for persons), seriously endangers the health and life of the people whose protection is, ultimately, the purpose of the entire legal system. It is necessary to remember that human rights are not absolute but admit exceptions, insofar as they must be reconciled with other (human rights) of other persons, given the characteristic of interconnection between them, which is inherent to the matter. If the Law admits that the greatest value protected by legal systems (the life and dignity of persons) can be excepted when another person's life is at risk (cases of legitimate defense, for example), with greater reason must this exercise of balancing and proportionality be done when dealing with rights of a different order, as occurs between life and health (higher precedence) with respect to *some forms* legal that, in any case, can be varied for others *without ceasing to protect the substantive right protected* (the right of defense, to rebut and contradict the evidence, etc.). Therefore, in thesis of principle, the mere existence of mechanisms different from in-person ones for the development of hearings in periods of crisis is not, in itself, a violation of constitutional principles, **unless it is proven that, due to the specific way in which it was carried out in a concrete case, an unconsented and irremediable impact on one of them was indeed generated**. In the present case, the debate was conducted as follows: **a)** it began on November 9, 2020 (see minutes on folio 660); **b)-** the second hearing took place three days later, on November 12, 2020 (see folios 661-662); **c)-** it continued six days later: on November 18, 2020 (see folio 663); **d)-** it continued the next day, November 19, 2020 (see folios 665-666); **e)-** within the ten-day period, other consecutive hearings were scheduled on November 23 to 25 (see folios 667 to 668 bis); **f)** according to health order OD-407-2020 issued in the name of Judge Jiménez Vargas, it operated from November 27 until December 10, 2020, and he was placed on sick leave (incapacitado) from December 7 to 10, 2020. Judge Ramírez Angulo provided the same information regarding the dates of her health order, adding that she did not require any medical leave for not presenting symptoms (see reverse of folio 826); **g)** the debate continued on the sixth day since the last session had been closed, that is, it continued on December 3, 2020. On this occasion, Judge Jiménez and Judge Ramírez were under a health order, but without medical leave. They connected from their homes via *Teams* and, according to the trial minutes and the recordings, on that occasion all the documentary evidence stipulated in the order to open trial was incorporated, but the parties stated that they did not want the reading of any of those documents, mentioning some that were missing to be added to that list or whose processing was pending (see folio 669); **h)** on the tenth day from that date, it continued, on December 17, 2020 (see folio 670), an occasion on which Judge Mauricio Jiménez Vargas and Judge Cinthya Ramírez Angulo already connected via *Teams*. It should be noted that the medical leave for the first of the judges had already ceased by then; **i)** the debate continued on January 8, 2021 (see folios 671 to 674). It must be taken into account that the Poder Judicial had a collective closure (for vacations, days off, and holidays) from December 18, 2020, to January 4, 2021, so, therefore, that period is non-working (inhábil), and from the last session to this one, six working days elapsed; **j)** the trial continued on January 18, 2021 (sixth day) according to folio 681; **k)** it continued on January 20, 25, 27, and 28, 2021, that is, without exceeding the ten-day period between each one (folios 683, 685, 689, and 690); **l)** it proceeded on the seventh day, on February 8, and the ten-day period was not exceeded between that session and the following ones held on February 11, 16, and 18, 2021, on this last date the dispositive part was issued, and then, within five days, specifically on February 25, the full judgment was issued (see folios 692-697 and 750). That is, in no case were the ten days exceeded between one session and another—which is the maximum possible between hearings, regulated by Article 336 of the Código Procesal Penal, so that the act maintains validity—; in none of the referred hearings were the judges on medical leave, but in two of them they did have a health isolation order that warranted the proceeding being held with them in their homes (connected simultaneously by videoconference, via *Microsoft Teams*, that is, through audiovisual means with which they could speak, listen, see, and be seen) and the rest of the persons were located in the hearing room (from where they could see, speak, and hear the judges who were not in the room), a moment in which no one voiced any reproach for what was done (but which, in any case, if it had been voiced, did not prevent proceeding in that way, as will be indicated). This and the non-assessment of some documents in the judgment are what is alleged to be injurious to rights. The first thing that must be indicated is that the mere existence of an isolation order does not mean that the official is medically on leave. This distinction is important because leave due to health reasons generates a **suspension of jurisdiction** and this, in turn, implies that the person cannot carry out any jurisdictional act: "The suspension of jurisdiction consists in the fact that the judge, for a period, cannot issue any pronouncement, and that which they issue will be absolutely null. The judge who has had the disciplinary sanction of suspension imposed, the judge who has been granted a special license, **the judge who is on sick leave due to illness (incapacitado por motivo de enfermedad),** the judge who is taking their vacation, has their jurisdiction suspended.

It should not be confused with the suspension of competence </em></span><span style="font-size: 11pt;">(...)</span><span style="font-size: 11pt;"> <em> because the suspension of jurisdiction means that the judge in that condition cannot perform any act related to that function. That is, the impossibility of carrying out those procedural or administrative acts is total</em></span><span style="font-size: 11pt;">".</span></span> <span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">[Arguedas Salazar, Olman (2000), </span><span style="font-size: 12pt;"><em>Teoría General del Proceso</em></span><span style="font-size: 12pt;">. Editorial Juritexto, 1st ed., San José, Costa Rica, 2000, p. 21]. This is drawn from the same Article 162 of the Organic Law of the Judicial Branch which, although it deals with this concept jointly with that of loss of jurisdiction (which are not equivalent since the former is temporary and the latter permanent), does distinguish their effects and, in Article 168 </span><span style="font-size: 12pt;"><em>ibidem</em></span><span style="font-size: 12pt;"> stipulates the nullity of acts performed by those whose jurisdiction is suspended. In these cases, the person cannot perform any work of their jurisdictional activity for a certain period and if, despite that, they execute it, the act has no effect. This has been indicated, for example, in the judgments of the formerly named Criminal Cassation Court of San José (L. García, R. Chinchilla and E. Salinas) </span></span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0034-514734"><span style="color: #0563c1; font-family: Arial;"> <span style="font-size: 12pt;"><u>number 2011-263</u></span></span><u> </u></a> <span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">and of the Criminal Sentence Appeals Court of San José </span></span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0034-601191"> <span style="color: #0563c1; font-family: Arial;"><span style="font-size: 12pt;"><u>number 2013-2614</u></span></span> <u> </u></a><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">(R. Chinchilla, L. García and J. Arce, with a note by the latter). For their part, sanitary isolation orders are administrative acts issued by the Ministry of Health within the framework stipulated by Article 365 of the General Health Law, which provides: "</span><span style="font-size: 11pt;"><em>The isolation of a person or group of persons means their separation from all others, with the exception of the personnel in charge of their care during the period of transmissibility, or their placement in places and under conditions that prevent the direct or indirect transmission of the infectious agent to persons or animals that are susceptible or that may transmit the disease to others, depending on the severity of the case</em></span><span style="font-size: 12pt;">." Note that isolation is not only for sick persons but also for those suspected of being so because they have had close contact with an affected person, as distinguished by Article 378 of that law, since its subsection b) stipulates: "</span><span style="font-size: 12pt;">[Name 003]</span><span style="font-size: 11pt;"><em> the person suspected of a contagious disease or one who, even without presenting evident symptoms or signs of said disease, is subject to an isolation order because of being a close contact of a causal agent of the disease, a fixed fine of three base salaries.</em></span><span style="font-size: 12pt;">" Precisely for this reason, Article 336 subsection d) of the Criminal Procedure Code establishes: "</span><span style="font-size: 11pt;"><em>The hearing shall be held without interruption, during as many consecutive sessions as are necessary until its conclusion; but it may be </em></span><span style="font-size: 11pt;"><em><u>suspended</u></em></span><span style="font-size: 11pt;"> <em> for a maximum period of ten days, in the following cases: </em></span><span style="font-size: 11pt;">(…)</span><span style="font-size: 11pt;"><em> d) If a judge </em></span> <span style="font-size: 11pt;">(…)</span><span style="font-size: 11pt;"><em> becomes ill</em></span><span style="font-size: 12pt;">…" In this matter, as detailed, there was no incapacity whatsoever of the cited judges during the trial hearings, but rather, only on two occasions were they covered by sanitary isolation orders, for which reason they were in their homes connected by electronic means, which, as mentioned, is not, </span><span style="font-size: 12pt;"><u>in and of itself (but rather due to the manner in which it is carried out or the circumstances surrounding the matter, which must be analyzed on a case-by-case basis)</u></span> <span style="font-size: 12pt;">, grounds for any disintegration of the court, given the current possibilities of interconnection, which, furthermore, guarantee the perception of image, tones of voice, and grasping of contexts to rule out that the declarant is reading, being signaled something, or is accompanied (coached or intimidated), which allows for verification of the levels of immediacy and concentration. In the case of collegiate courts and regarding the professional-defense and material-defense relationship, these means (if applied adequately) can also allow for immediate private communication to guarantee the right to defense and private deliberation. Consequently, it will be necessary to determine casuistically if, due to the circumstances surrounding a specific matter, any of the underlying guarantees was violated, but the form, in and of itself, is not censurable. Now, having clarified the above, the appellant's complaint is not, in and of itself, the video conference link, nor the isolation situation of those judges (to which the defense itself showed its consent), but rather the disagreement lies in that, in their opinion, they could not become aware of the content of the documentary evidence incorporated that day because they did not have access to the physical case file, a claim that, incidentally and in view of the duty of loyalty (Article 127 of the Criminal Procedure Code), the cited professional did not express at the time and, on the other hand, if it were acceptable, it would be equally applicable to courts composed in person where documentary evidence is incorporated without the need for reading due to the consent of the parties and only one of the judges has the physical case file in their hands and the others have an immediate material impossibility of knowing the content, an issue that, for the reasons that will be stated, has no impact on the rights of the parties and demonstrates the inadmissibility of the complaint. In this matter, there is no evidence (other than the speculation of the challenger) that the other judges lacked access (prior, simultaneous, or subsequent) to the documentary evidence incorporated. It should be remembered that the computer means available today imply the possibility of photographing or scanning documents and transmitting them through mobile messaging services, emails, or even online in real time. In any case, since the parties also did not request that these documents be read (which consisted of what was stipulated in the trial-opening order, according to folios 669 front and back) and the debate later continued, there was no adversarial process or immediacy affected in this regard, and the cited judges could well access their content at another time. That is, what is alleged here is nothing more than respect for the formality considered for its own sake, without protecting any further principle, which is not admissible by virtue of the aphorism '<em>pas de nullité sans grief</em>’ (no nullity without prejudice). The appellant indicates that, since the illness for which the male judge and female judge were preventively isolated, due to suspicion of carrying it, was one that had killed two million people worldwide by that date, this could affect the levels of concentration and immediacy those judges might have, given the nervousness and emotional affectation that this can generate. And while this could be so (who under the same conditions would not be, or is it perhaps thought that judges are autonomous beings without thoughts or feelings?) it would only apply if an effective incorporation of evidentiary elements had taken place that required active attention from the court members and that could not be perceived at other times, and <u>if such a thing were demonstrated</u>, but this is not the case here, where the cited documents were not effectively read (they were only mentioned by type or folio) given that the parties consented to this procedure, and all of them were in the court's possession during the subsequent development of the debate for their analysis. The fact that the psychological expert opinions conducted on the victims and incorporated on December 3, 2020, were not expressly mentioned in the judgment does not imply that, if that were the case (which is only mentioned here on a hypothetical basis), the defect (if it existed) is due to the issue of the sanitary order or the virtual incorporation of the document, but rather to other reasons in the deliberation and drafting phase of the decision, which occurred on a date after what is alleged, an issue (of whether they were effectively analyzed or not and their weight) that will be revisited in later sections of this decision. In short, this Chamber finds no grievance or irregularity whatsoever with the actions taken, which, moreover, conform to the stipulations contained in Constitutional Chamber vote number 11122-2020 in which, although referring to another topic (legislative sessions), it is comparable to the one dealt with here, insofar as both concern state actions governed by regulated principles foreseen for times different from the current ones. Therein it was indicated: «…</span><span style="font-size: 11pt;"><em>the </em></span><span style="font-size: 11pt;"><strong><em>Constitución Política is a living normative body</em></strong></span><span style="font-size: 11pt;"> <em>, whose interpretation must adapt to new circumstances. When the Constitution mentions attendance or presented votes, it must be understood that such attendance or presence is not only physical but can also be virtual, as current technologies permit. Even more so, in circumstances of national emergency where, in order to protect people's health, physical distancing is imposed to prevent the spread of the Covid-19 virus. Certainly, the </em></span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>emergency exists, and the State bodies must continue functioning, with adaptations of course, but must continue functioning for the better satisfaction of the public interest </em></span><span style="font-size: 11pt;">(…)</span><span style="font-size: 11pt;"><em> As mentioned in the explanatory statement of the consulted project, the Procuraduría General de la República has pointed out that, "new information and communication technologies are not foreign to the Administration and cannot be, insofar as these technologies are changing the society upon which public power acts. It would be contradictory for the State to become obligated to develop or promote information and communication network infrastructures of wide coverage that are accessible and affordable and that use the best technology available </em></span><span style="font-size: 11pt;">(…)</span> <span style="font-size: 11pt;"><em> but simultaneously the State finds itself limited from using that technology and the networks that are constituted." (C-298-2007, August 28, 2007). Highlighting that the consulted project itself </em></span><span style="font-size: 11pt;"><strong><em>highlights the exceptional nature of the measure</em></strong></span><span style="font-size: 11pt;"><em>, which would be maintained as long as objective and reasonable circumstances exist that prevent holding legislative sessions with the physical presence of the deputies. So it is a reform to confront the current social reality of our country.</em></span><span style="font-size: 11pt;">» </span><span style="font-size: 12pt;">(Emphasis added). Similarly, already for judicial matters in specific criminal matters, and more concretely regarding persons deprived of liberty (but equally applicable to those who are not, who may also suffer limitations on other constitutional rights), said Chamber indicated, in vote number 2021-2260, the following: «…</span><span style="font-size: 11pt;"><em>the Justice Administration System and the Penitentiary System must adapt to the current limitations imposed on us by sanitary measures, and design and implement the actions that are necessary, so as not to paralyze criminal proceedings, and to guarantee the fulfillment of the constitutional and procedural rights and guarantees held by accused persons who are deprived of liberty. This premise is what this Chamber has been developing throughout the precedents issued, regarding the effects of the present pandemic, within the functioning of the Public Administration. Specifically, regarding the criminal process and the rights of persons deprived of liberty, it has ordered the design and execution of care protocols for massive cases (of Covid-19) and for requests for medical attention (both within the Penitentiary System), and in turn, has ordered that the Prison authorities of the Judicial Investigation Agency implement the timely coordination with the respective Criminal Courts and Tribunals, to avoid overcrowding </em></span><span style="font-size: 11pt;">(…)</span><span style="font-size: 11pt;"><em> Also, this Chamber, through its precedents, has guaranteed that hearings or debates involving persons deprived of liberty be held, without these proceedings being delayed beyond what is reasonable. And recently, it has validated the use of technologies, such as Videoconferencing, to conduct hearings and even debates. The foregoing implies that the Chamber's line maintains that </em></span><span style="font-size: 11pt;"><strong><em>the ordinary situation is the presence of the accused person within the hearing, so that they can exercise their material defense, and that, in extraordinary cases, their physical or direct presence can be dispensed with, substituting it with their participation through technological means</em></strong></span><span style="font-size: 11pt;">…» </span> <span style="font-size: 12pt;">(Bold added). The reasoning is valid, by parity of reason, for other procedural subjects.</span> <span style="font-size: 12pt;">The other argument, regarding the fact that, while witness evidence was being received, Judge Mauricio Jiménez Vargas remained with his eyes closed for several moments while the victim [Name 005] and the accused were testifying, is also not admissible to the extent that having one's eyes closed does not mean they are asleep and, even if it were hypothetically accepted that this latter situation occurred for the brief seconds verified in the recording, the judgment analyzed both statements, without it being alleged or verified that relevant aspects of each of them were left unweighted, for which reason there was no omission of evidence or, otherwise, an affectation of the protected guarantee. This Chamber respects the criterion expressed by another section of this same court through </span></span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0034-961155"> <span style="color: #0563c1; font-family: Arial;"><span style="font-size: 12pt;"><u>vote number 1559-2019</u></span></span><u> </u></a><span style="color: #010101; font-family: Arial;"> <span style="font-size: 12pt;">(R. García, A. Araya and G. Figueroa) and cited by the appellant, but does not consider it applicable to the case because here it has not been accredited that the judge was distracted performing other tasks and that this had an impact on the weighing of the evidence, which is what that case refers to: "…</span><span style="font-size: 11pt;"><em>the judge was distracted during the statements of the victim and Mrs. </em></span><span style="font-size: 11pt;">[…]</span> <span style="font-size: 11pt;"><em>, to the point that there were moments when, despite the victim or her parent not making any statement, he continued developing that dynamic of consulting documents and typing on the computer, thus denoting, in a clear and evident manner, that he was also not taking notes of their statements, as could be observed, by way of example, during the victim's statement, in the sequences: 00:27:35 to 00:27:45; 00:28:34 to 28:52; 00:29:31 to 00:30:03; 00:31:26 to 00:31:45; 00:36:08 to 00:36:46; 00:36:49 to 00:37:05; 00:38:56 to 00:39:20; 00:40:04 to 00:40:26; 00:41:39 to 00:42:11; and 00:42:50 to 00:43:08, of the judgment counter. He maintained the same attitude during the identification of the accused, minutes 00:04:25 to 00:09:40 and also did not suspend said action during the pauses (for example, before receiving the statement of the aggrieved party's mother, where he displayed a similar dynamic, sequence 00:00:39 to 00:02:40) and although because it was a trial interruption -where no evidence is received- his concentration would not be required, the truth is that his conduct is only taken here as a reference that the described judge was performing, even, tasks outside the debate and the recording of what was declared by the appearing persons, as could eventually be considered but -according to what was stated- this is completely discarded, since it is not logical that he continued typing without any testimony being taken. Furthermore, it is observed that this situation was repeated on the various occasions when the victim resorted to body language during her narration and her gestures were also not visualized by the indicated member of the collegiate body, who in this way demonstrated his absolute disinterest, disrespect, and lack of consideration towards what was narrated by the victim.</em></span><span style="font-size: 12pt;">" <span class="example1 304429" style="font-size: 12pt;">Rather, through vote number 2016-326, this Chamber, with a partially different composition than the current one (R. Chinchilla, P. Vargas and J. </span></span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span class="example1 304429" style="font-size: 12pt;">Campos) has indicated: «</span><span style="font-size: 11pt;"><em><span class="example1 304429" style="font-size: 11pt;">it does not determine that this body incurred in constant distractions or of such magnitude that they affected the necessary concentration that judges must have during the adversarial process, without the mere proven fact that on certain occasions a judge uses the cited device (which is not necessarily for matters unrelated to the functions they perform at that moment) being,</span> in and of itself, grounds for nullity but only to the extent that this implies a lack of attention to what is happening or is of such magnitude that this can be validly inferred, as has been considered by different compositions of this Court, for example, in vote number 166-2015 of 1:10 p.m. on February 2, 2015 (Arce, Campos and Solís) in which it was said: "It is important to clarify and underline that for this criminal sentence appeals chamber, the mere circumstance that a judge makes a simple, occasional, and quick check of their cell phone (for example, of messages), does not necessarily imply the nullity of the judgment, but rather the problem arises when –as in this case– the use of the device is very repeated and extends over important periods, such that the distraction affects the capacity to perceive or observe essential elements or events of the trial, necessary for an adequate understanding of the issues to be resolved" (in the same sense, vote number 2015-388 by Jiménez, Solís and Gullock) or in vote 2014-831 (Chinchilla, García and Gullock) in which it was mentioned: "...although in the audiovisual archive (...) one can notice that said official, in effect, reads a case file, dialogues with the judicial technician, reviews documentation and makes a note on her cell phone, this cannot lead to the conclusion, as the challenger does, that such acts meant a breach of the principle of concentration or that the Court had disintegrated, since all those acts are compatible with the function of directing the debate, without there being any additional element to even think that the file she was reading was one different from the one involved in this case, because she consults it when the accusation is being read and during the investigative statement and statement of the victim, which is necessary to do to determine if it is necessary to incorporate pieces from the records for the purposes of the interrogations. Note that the dialogue with the Court's assistant is very brief and usually occurs, not only in this case, to attend to matters pertaining to the case, such as the order of locating witnesses, verifying that the recording is taking place, giving instructions to members of the public or courtroom guards without the continuity of the debate developing, etc. and the existence of smart communication devices means that they are not exclusively for receiving and sending text messages or calls, but rather allow for taking notes, making annotations, and even displaying legislation that is saved digitally. Likewise, it is verified that, as the Fiscalía rightly points out, the cited official even intervened asking clarifying questions and moderating the debate, so she showed herself, at all times, attentive to what was happening in the trial, without the defense having invoked a single argument, protest, or activity that was not timely attended to and that would demonstrate that the invocation of this alleged defect has as its purpose the protection of a substantive matter, principle, or further aim and not the simple invocation of nullity for its own sake, in attention to the simple, empty respect of forms. Also, although at other moments during the development of the hearing two of the judges exchanged words among themselves and on another occasion </em></span><span style="font-size: 11pt;">(...)</span><span style="font-size: 11pt;"> <em> the three of them did so, it was for a very brief period without that behavior, either, implying, necessarily, a lack of attention to what was happening and a loss of concentration, although it must certainly be agreed that it is a bad practice, since it is disrespectful to the persons who remain speaking. However, it does not entail any defect that would allow for declaring any nullity, a reason why this matter is not even similar to the precedent invoked by the appellant..." (See, in a similar sense, vote number 2015-118: Salazar, Jiménez and Rivera in which the judgment was annulled due to manifest inattention). That is, although out of respect, courtesy, and responsibility, cell phones or tablet devices should not be used in the debate room to observe or answer messages and, if they must be used for matters pertaining to the hearing, it should be warned —for transparency— to the other procedural subjects that they are being used for that purpose, that does not mean that necessarily every time this rule is broken, it implies the nullity of what was resolved, since from ancient times it has been insisted that nullity is not to be decreed for its own sake but rather to the extent that the form (in this case, attention) protects a greater guarantee that is demonstrated or presumed, reasonably, to be breached (the attention to and valuation of the evidence). In this order of ideas, the audiovisual archive has been observed </em></span><span style="font-size: 11pt;">(…)</span><span style="font-size: 11pt;"><em> and it is determined that although </em></span> <span style="font-size: 11pt;">(…)</span> <span style="font-size: 11pt;"><strong><em>it is observed that Judge </em></strong></span> <span style="font-size: 11pt;">(…)</span><span style="font-size: 11pt;"><strong><em> is leaning back against the backrest of his chair, apparently with his eyes closed, that does not mean he was not concentrated or asleep or that he was not paying attention to the interrogation</em></strong></span> <span style="font-size: 11pt;">(…) </span> <span style="font-size: 11pt;"><em>said judge adopts that position starting from sequence </em></span><span style="font-size: 11pt;">(…) </span><span style="font-size: 11pt;"><em>but it did not prevent him from saying some phrases to the presiding judge (at the beginning of the account) or making different movements (drumming of fingers, passing his hand over his face, taking off his glasses, etc.). Even, in sequences </em></span><span style="font-size: 11pt;">(…)</span><span style="font-size: 11pt;"><em> he makes different movements (looking at the female judges when they speak among themselves) which denotes that he was paying attention. In any case, during the approximately three minutes he remains in that position, in addition to the different movements he made, what was taking place were clarifying questions from one of the female judges to the official, that is, the bulk of this deponent's statement had already been taken.</em></span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">(...) <em>since the gestures of supposed deconcentration that the appellants point to involve very specific and very brief moments, at times when no determining or irreproducible act was taking place, the proper course is to reject this argument, which assumes that judges must remain motionless, almost like automatons, ignoring that they are human beings who also get tired and that paying attention does not necessarily mean they must remain in rigid positions.</em>» In this matter, during the time sequences indicated by the appellant, the cited judge, although it could be accepted that he kept his eyes closed (which is also not clear from the recording), did not show evidence of being disconnected from what was happening, since in file 11112020020415-2 (DVD 2) in the sequence 1:06:00 to 1:06:40 (which is only forty seconds), the presiding judge holds his chin with his hand, moves the other hand, and finally settles back in his seat, while one female judge asks a question and the other maintains a listening posture; at minute 1:07:50 the presiding judge is observed to be still, but it cannot be determined that he is asleep or dozing (before this, he even removed his mask and drank water from a cup); in the sequence 1:21:45 to </span></span></p>\n<p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">1:24:00, while one female judge types, another reviews documents, and the presiding judge, although leaning back in his chair, adjusts his tie with his hand and makes side-to-side head movements as if looking at the papers his colleague is reviewing, all while the questions concern nicknames, people who visit the site, etc.; and at the time counter from 1:30:15 to 1:31:25, the judge is seen reading documents from the case file and turning pages, crossing his arms, fixing his hair, changing position, or remaining still. Finally, in file 08022021090810-2 (DVD 5, manually correcting the number) starting from sequence 26:10, the presiding judge rests his head on his arm and remains that way until minute 09:00 when a lawyer intervenes, all while the accused was testifying about how he obtained his visa and the project with sister parishes in the United States; and regarding minutes 54:35 to 57:00, while the female judges look at their respective monitors, the presiding judge remains passive (except at the end where he adjusts his mask), almost without movements, all while the accused refers to a gentleman from the community unrelated to the trial and that his children slept on bunk beds in the parish while their father was hospitalized. In short, neither are the segments conclusive of inattention by any official, nor were they lengthy, nor are the topics determining or unaddressed in the judgment. Therefore, these complaints must be rejected. </span></span></p>\n<p style="text-indent: 12mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><strong>III.-</strong></span><span style="font-size: 12pt;"> As a </span><span style="font-size: 12pt;"><strong>third ground of appeal by the defense attorney</strong></span> <span style="font-size: 12pt;">, reference is made to the insufficient intellectual evidentiary reasoning, since, in his view, the court's analysis is nothing more than a sum of empty phrases that never materialize into logical reasoning founded on rational arguments. He states that although the judgment need not be a literary piece, in this case the document presented countless orthographic (more than 300 errors) and formal errors (of the judgment's 98 pages, 70 are transcriptions) and that this is an indication of argumentative deficiency. He narrates that there are two persons harmed in the case (ofendidos), and one sexual crime is attributed to the detriment of a minor and another to the detriment of an adult. Regarding the conviction for the acts committed against [Nombre 005], he transcribes part of the reasoning and adds that said person harmed was not consistent, clear, or precise, and was refuted by exonerating evidence (prueba de descargo), which, in his understanding, was not examined. He alludes to the account of this aggrieved person (who was granted full credibility); to what the accused mentioned in this regard, and comments that his statement was rendered null by the harmed person's own mother (whose statement he mentions), who incurred in contradictions with him, especially regarding time, which were not analyzed, since the name of [Nombre 014] is not even mentioned. The same occurred with the statement of [Nombre 015], a version he refers to and which, according to him, was only mentioned once. He says that this deponent was discredited based on documentary evidence that has no relation to these facts, since the emails used to assert that he lacked truthfulness —by saying that [Nombre 005] did not live or work at the parish— are dated January 21, 2011, six years after the alleged abuses and refer to activities of the [...]. That evidentiary material, he states, was offered to prove the 2010 events, not those of 2005, which he classifies as extremely serious. He adds that there were weaknesses in the analysis of [Nombre 058], who was discredited for having animosity towards the person harmed, a conclusion reached from some screenshots of WhatsApp messages. He indicates that this sentiment and the affection towards the accused were admitted by the witness himself, but this last point shows he was not lying, so his statement should have been analyzed together with the rest of the evidence. The same happened with the testimony of [Nombre 018]. He says that not only was the exonerating evidence not analyzed, but that the contradictions in the person harmed's statement were also not explored in depth (first he said the room was small and a mat could not fit, and later that it was very large, among others that the appellant lists with various citations from the verdict). Regarding the acts to the detriment of [Nombre 003], he mentions what was proven and states that generic phrases are used, which do not detail the evidence, and that statements are made that are grammatically poorly written and have orthographic errors. He transcribes a paragraph from page 73 of the judgment, in which the court made, in his opinion, a statement of possibility, which should have implied doubt, but ended up reaffirming a certainty, and from there onward he points out other comments on various paragraphs of the judgment, with transcriptions from it. He says there were no logical arguments for denying value to the witnesses, and that the reasoning used is to believe the person harmed and consider everything that contradicts him to be of little veracity, but without analyzing content. He adds that his theory of the case consisted of stating that the complaint forms part of a plan devised by [Nombre 003] and other people to have the accused removed from his position as parish priest of Santa Marta, as revenge for having undermined the authority and respect that said persons had in the community<em>. </em>He alludes to the fact that there were two individuals issuing complaints, before the formal report, against the priest, and that, when doing so to a superior, the latter met with the local Pastoral Council, determining that the discontent was only theirs. He says there was a witness, [Nombre 078], whose statement is not included in the judgment, but who did appear at trial, who stated that, since his arrival at that parish, there was already discontent from those persons, without the accused being removed despite that context and without the relative of the discontented parishioners resorting to the channels requested, but rather going directly to the press. In subsection C) of this argument contained in his brief, the appellant sets out his theory of the case (describing what each witness contributed) and comments on why this, in his view, is proven or raises doubt about the existence of the facts. He complains that the statement of [Nombre 078] does not appear in the judgment, but does appear in the audiovisual recording, and what he said about the call from a lady who conveyed a communal discontent with the priest, the supposed manipulation by the latter of others (from which only they escaped), and that a relative of a person harmed wanted to file an ecclesiastical complaint, and it was in this capacity that [Nombre 003] appeared, but they did not agree on the ways of processing it. He alludes to the fact that [Nombre 022] declared that his godson, [Nombre 023], an altar boy of the parish, attended preschool at an educational center near the church, which is why some days he would pick him up and keep him with him in the religious building while the child's mother came for him and they would leave for home. He narrated how, on August 5, 2014, officials from the National Children's Welfare Agency (Patronato Nacional de la Infancia, PANI) showed up at the parish, stating they had received an anonymous report through the 9-1-1 emergency system, which indicated that the referred-to minor was being a victim of sexual abuse by the priest [Nombre 001]. This situation was also described by the defendant, noting that he was even interviewed by PANI officials and was able to take a photograph of the document they showed him, which appears on pages 482-483 of the case file. The appellant indicates that, although it is not possible to state with certainty that the anonymous call was made by Mrs. [Nombre 038], Mr. [Nombre 033], or [Nombre 003], there is an important indication that there was a plot whose purpose was to harm the priest, since whoever reported had information related to the ecclesiastical complaint that [Nombre 003] had filed against [Nombre 001] months earlier, as that document literally reads:</span></span> <span style="color: #00000a; font-family: Arial;"><span style="font-size: 11pt;"><em>"Reitera que dicho sacerdote ya tiene denuncias en la curia metropolitana y que teme por la PME".</em></span></span> <span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">The appellant says that this information, of a private nature, could only have been known by [Nombre 001] himself, the persons in charge of processing this ecclesiastical process, Mr. [Nombre 003], and those with whom [Nombre 003] shared such a confidence. [Nombre 003] lived alone, in an apartment located on the same property as his aunt [Nombre 038] and her husband, [Nombre 033]. However, PANI determined that the situation was not credible, no judicial or administrative process was generated from this intervention, and [Nombre 001] was not affected. The appellant concludes that since, on July 17, 2014, [Nombre 003] filed the canonical complaint before the Metropolitan Curia, but this did not lead to the defendant's removal from the parish, they decided to make the anonymous report to PANI, which occurred on August 5, 2014. As the latter also did not yield the desired results, on August 8 he filed the criminal complaint and made it public through the press on August 26, 2014. The objective of removing Mr. [Nombre 001] from the Santa Marta parish was finally achieved. On August 28, 2014, two days after [Nombre 003]'s story was published in the newspaper La Nación, Mr. [Nombre 005] appeared to criminally denounce [Nombre 001] for acts that occurred in 2005. According to the statements of [Nombre 005] himself and [Nombre 003], this was to give "more legal weight" to [Nombre 003]'s complaint. [Nombre 005] declared that he depended economically on [Nombre 001] for six years and received financial help from 2005 until 2014, which he voluntarily stopped receiving. However, the defendant tells us —the challenger continues to state— that it is due to the economic limitations of the Santa Marta parish and on his initiative that [Nombre 005] is made to see that it is no longer possible to continue helping him defray his university expenses, and this refusal made [Nombre 005] upset. According to [Nombre 038] and [Nombre 005] himself, the latter became friends with the [Nombre 034] through the collaboration he provided in the Santa Marta parish, as he helped them prepare rooms for pre-marital catechesis and anything else they might need, which led [Nombre 038] to invite him for coffee and to eat at her home, with her family, even with [Nombre 003]. This friendship of [Nombre 005] with the [Nombre 034] is relevant, the appellant continues, since [Nombre 038] acknowledges in cross-examination that it was she who told [Nombre 005] that [Nombre 003] had filed a complaint against [Nombre 001]. Furthermore, she told [Nombre 003] to call [Nombre 005], because apparently something had also happened to him with [Nombre 001]. The appellant says that the relevant role of Mrs. [Nombre 038] in this entire case is evident from the evidence adduced (prueba evacuada). He adds that once [Nombre 005] appeared to file the complaint, he stated that the young man [Nombre 035] had also been abused, as he said he had seen [Nombre 001] touching his penis, a situation he reaffirmed at trial and provided his phone number to be contacted, but when this person appeared as a witness at trial, he denied those claims, making it clear they were false. The person harmed, the challenger continues to say, sought to add more people to denounce [Nombre 001], such as the youth [Nombre 066], who received a message through the Facebook Messenger platform which came from a false profile, but offered him 950,000 colones in exchange for filing a complaint against [Nombre 001], even saying his complaint would be more credible because he was a person very close to him. This message appears on page 486 and was acknowledged by [Nombre 066] in his capacity as a witness. The challenger adds that, during the trial, both [Nombre 003] and [Nombre 005] denied being friends, but from the forensic psychosocial assessment (dictamen psicosocial forense) conducted on the latter (SPPF-2015-00080, visible on page 136 of the case file), it is evident that [Nombre 005] acknowledges [Nombre 003] as his friend. On page 137, third paragraph, it is indicated that a friend named [Nombre 003] told him he had suffered an alleged rape by the same parish priest and asked [Nombre 005] to tell what had happened to him so that both complaints would have greater legal weight. This friendship relationship between the two persons harmed is plausible since [Nombre 003] cohabited with [Nombre 038], his aunt, and [Nombre 005] acknowledged being a close friend of [Nombre 038]. The challenger concludes this section by saying that «</span></span><span style="color: #00000a; font-family: Arial;"><span style="font-size: 11pt;"><em>Clearly it is not possible to state with absolute certainty that [Nombre 038] and [Nombre 033] orchestrated an entire plan to achieve their goal of removing [Nombre 001] from the Santa Marta Parish at all costs and to take revenge for "taking away their crown," going to the extreme of instrumentalizing her nephew [Nombre 003] and her friend [Nombre 005] to file a complaint for sexual abuse. But taking into account all the information obtained through the adversarial process, it is not an automatically dismissible possibility either, but rather it deserved sufficient assessment by the court, which, if it considered it was not even admissible to generate a doubt, should have at least evaluated it, analyzed it, and discarded it. However, once again, the court completely ignores this theory. It simply qualified it as a "nebula to detract from credibility," even though it was presented from the opening statement as our Theory of the Case</em></span></span><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">.» (See appeal in case file). He mentions that at the reading of the judgment, the persons harmed or the accused were not present, but witness Carlos Mondragón did appear, demonstrating he was interested in the matter. He maintains, in summary, that an examination was not made of the value of the statements in terms of coherence, contradictions, non-verbal language, body attitude of the speakers, behaviors, and reactions during questioning, etc., that the court's effort to link his defendant does not surpass the logical process (iter lógico) and that although there are some indicia that are admitted out of procedural fairness, they are not sufficient to have certainty that Mr. [Nombre 001] committed the crimes attributed to him. He states that, in this case, unlike others, there was exonerating evidence that categorically denied the event reported by [Nombre 003], called into question the honorability and sincerity of [Nombre 005], and raised well-founded doubts about the intention that moved them to denounce his client, without any analysis being undertaken. He emphasizes his claim that all the elements that supported the accused's version or raised doubts were ignored or discarded based on untenable arguments or simple arbitrariness, since it is not enough to say that the witnesses were not believed, which is, at bottom, what the judges did. He requests that the judgment be annulled and a remittal (reenvío) be ordered. </span></span></p>\n<p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">He requested that an oral hearing be scheduled. </span><span style="font-size: 12pt;"> <em>During this hearing, the challenger reiterated these statements, setting out the theory of the case. For his part, the accused said that it was all about revenge by the referred family to get him out of the place.</em></span> <span style="font-size: 12pt;"><u>In</u></span> <span style="font-size: 12pt;"><u>responding to the appeal</u></span><span style="font-size: 12pt;">, the prosecutorial representation considers that the complaint should not be accepted, since from the victim's statement given both in his complaint and at trial, it was possible to determine, with certainty, the timeframe and locate it in the year in which both events occurred. She maintains that the defense attorney intends to replace the court's intellectual reasoning with a series of elements or circumstances regarding whether [Nombre 005] lived or not in the parish house of the Los Guido parish, thereby giving credibility to exonerating witnesses who, in the judgment, were duly refuted, which makes his intellectual exercise inadequate, as it concerns his own subjective and biased valuation. She adds that from the logical process and the intellectual reasoning of the judgment, it is possible to consider the acts for which he was convicted as proven. The same technique is used to challenge the conviction imposed on the accused for the acts committed against [Nombre 003], as the appeal expresses disagreement because the court of origin (a quo) did not admit the defense theory centered on a supposed revenge carried out by the person harmed's aunt, arguments that were duly rejected by the lower court. She concludes by mentioning that, regarding the analysis of credibility and guilt for the accused acts carried out in the judgment, it was correct, but not so regarding the penalty imposed or the acquittal for one of the crimes, which is challenged in a separate appeal. The representative of the Temporalities of the Archdiocese of San José said she would not pronounce on this appeal, and the attorney from the Civil Defense Office for Victims did not elaborate on the matter. </span><span style="font-size: 12pt;"><strong>The complaint is not admissible.</strong></span></span></p> In the case of the conviction (condena), the accused was attributed two specific segments of events: i) one (composed of two acts) that took place in the Parroquia de Los Guido de Desamparados during the year 2005, when the accused, on two different occasions, while they were sleeping, touched the penis or performed touchings in genital areas and masturbatory acts to the detriment of the offended party [Name 005], who at that time was 16 years old and was one of the youths assisted by the priest (it should be noted that, to his detriment, but already in the year 2010 and in the [...], the accused was attributed a crime of rape, for which he was acquitted and which will be discussed further in another section of this same decision). Those events, for which he was convicted, were classified as two crimes of sexual abuse against a minor and ii) the other event occurred at the [Name 039] during the first half of October 2013 to the detriment of [Name 003] (at that time of legal age) when, while they were watching a television program in one of the rooms of the parish house and were accompanied by a third person, the accused proceeded to touch the offended party's genitals. That was classified as a crime of sexual abuse against a person of legal age. It is true that, in this matter, the trial extended over multiple hearings that took place between November 9, 2020, and February 16, 2021 (without covering all the days or both sessions in that period). It is also true that the judgment, approximately 98 pages long, begins its intellectual analysis from Considerando III, located on page 70, and that the rest of that text focuses on describing both the accused acts and the evidence received orally, which comprised 19 statements: that of the accused, that of both offended parties ([Name 003] and [Name 005]), and that of the following persons: [Name 038] Mora, [Name 079], [Name 041], [Name 078], [Name 042], [Name 043], [Name 044], [Name 045], [Name 046], [Name 047], [Name 048], [Name 058], [Name 049], [Name 015], [Name 014], and [Name 018]. It is also true that the judgment contains multiple spelling and typing errors. However, none of this implies, in itself, a lack of adequate reasoning if one considers that most of those testimonies refer to matters unrelated to the investigated facts, as this chamber has been able to verify by reading the summary of those statements (which, for the most part, have been accepted by the parties and, when they have not, have compelled this tribunal to verify the recordings, without noting significant differences with respect to said summaries). Note that a good number of the witnesses state that the accused, a priest of the Catholic Church, carried out extensive humanitarian labor and social support for young people with various socio-economic problems so that they could continue their studies, and that it was within that framework that he related to the offended parties; many other witnesses also mentioned that there was a kind of dispute between the accused and a married couple from one of the communities (with a certain indirect family link to one of the complainants), a controversy that, according to one group of witnesses, arose from having been displaced by the accused from their parish functions or because, in other versions, they wanted the priest removed since they had reports about his improper matters. None of these facts are relevant to this matter, nor, hypothetically accepting or completely excluding them, are they capable of explaining, by themselves, that two persons, of different origins and backgrounds, provide data related to abuses suffered to their detriment by the same active subject in different places or moments of their lives; that the version of each one of them is internally consistent and complements each other in certain details; nor that they coincide with the other witnesses on many of the peripheral topics that these witnesses did delve into. That is to say, the fact that a person carries out a broad display of humanitarian labor is not an obstacle to them being able to commit a crime, of any kind, including a sexual one. The fact that a person receives help from another does not mean that, for that reason, they must maintain a gratitude that borders on the erasure of their dignity and, even less so, that they must face the humiliations of which they may be a victim. And, finally, the fact that there is conflict among some people (whether due to the handling of religious, financial, or social issues, or because some have information about the criminal acts of the other and, on that basis, intend to generate alerts in others) does not imply that there is a spurious motive to report, and while it could be an indication, this is discarded and is insufficient to affirm such a thing, when the acts are repetitive, to the detriment of different victims (one of whom lacks any relationship with those persons supposedly involved in the conflict), and occur in a similar manner (regarding the taking advantage of conditions, towards males, etc.) although at different times and places (which also denotes a pattern of conduct). This being the case, the fact that, despite the duration of the trial and the number of testimonies taken, the judgment is not very extensive in its intellectual reasoning has an adequate explanation, owing to the fact that most of the material produced was not pertinent to the case, and, to that extent, a paragraph sufficed to indicate why, even if the witnesses were truthful (and especially if they were not), that did not affect in any way the credibility of the offended parties regarding events that occurred in circumstances that were not of common access, since, in the generality of occasions, they occurred without witnesses or in the presence of a third person who was asleep or distracted. In this vein, the fact that persons who have been violated by another address that person, in public or in private, directly (orally or in writing) or through their relatives, telling them that they "are going to pay" and spread the events in the community, before superiors, or in ecclesiastical or judicial processes, or through journalistic reports, does not necessarily imply that the motive is spurious, because if they have indeed been victims of events, they have reason to raise their voices and alert others, which, furthermore, from the religious perspective in which all the participants situate themselves, constitutes a false and contradictory discourse regarding what someone in the accused's position should do. Since that is the logic permeating the entire exposition and the case theory raised by the appellant —that if it is "A" it cannot be "B," when, in these cases, "A" does not imply "B," nor vice versa, and both scenarios can perfectly coexist without being contradictory, since, it is insisted, the existence of disagreements between two persons and the accused does not imply that two offended parties unrelated to those persons are lying— this tribunal will not delve deeper into those peripheral aspects. The appellant, regarding the acts to the detriment of [Name 005], maintains that the offended party was not consistent, clear, or precise, and his statement was disproven by defense evidence that was not examined, but he merely issues his own value judgments, without examining or showing the specific flaws of the resolution he attacks, nor indicating why the arguments presented violate the rules of sound criticism (sana crítica), without this chamber verifying, from the generality of the pleading, any specific error in the reasoning of the a quo. Nor is the preterition of evidence noted, nor does the appellant specify, except for his generic complaint, which evidence was omitted from assessment or in which essential segments, nor is there any error in the fact that the merit body grouped all the statements referring to peripheral topics (regarding the quality of person that the accused was, a topic not judged here) and gave acceptable reasons for why they did not contribute to the investigated event without delving further into it. The contradictions mentioned by the appellant between the offended party and his mother (who was only a reference witness and not an eyewitness), which the appellant himself acknowledges have greater relevance in the temporal aspect, do not vary what was decided, to the extent that it was the complainant who, being the victim and the one who directly received the acts, was in a better position to specify their occurrence, especially since for that reason he remained silent, including towards his relatives, for some time. Nor is it significant if the complainant said that the room was small and a mat did not fit, and later that it was very large, as these are comparative references that are taken out of context, without the size of the physical space affecting the criminal classification or the defense strategy, which has been maintained despite those allusions. In the same way, the express hypothetical inclusion of the references made by [Name 014] or [Name 078] does not have the merit of modifying what was resolved, since, it is insisted, neither was an eyewitness and they only alluded to points that were narrated to them or, the latter, to peripheral topics related to the accused's functions or the complaints against him and the ecclesiastical processes generated. Note that although, in the case of Muñoz, his testimony was not transcribed in the evidence description section of the judgment (in point 6 of page 41 of the judgment in pdf, where it only refers to the audio), that does not mean that his statement was ignored, since he is indeed cited, and the summarized content of his declaration is mentioned in different parts of the decision, without the legislation (article 143 of the Código Procesal Penal) obligating such references to be made in a specific place or manner. In this regard, for example, on pages 94 of the digitized judgment in pdf, it is indicated: "…in the adversarial proceedings, it was evidenced through the statements of [Name 038] and the church's own members, Father [Name 079] and [Name 078], the insufficient supervision that was exercised over the actions of the civil defendant [Name 001], which were even known to the Church before July 10, 2014, without actions being taken to control what was happening and even to remedy the events that occurred, and instead, a position was taken to silence what was within its knowledge, sheltered by the doctrine of forgiveness that governs the Catholic Church." The fact that in the judgment [Name 015] was mentioned only once also does not affect the validity of that decision, since it is not the quantity of references, but their content, that must be assessed, and, in the case of that deponent, the tribunal did not find him credible because "…from the declaration of [Name 058], important elements were extracted, which even contradict what was said by other witnesses, such is the case of the assertion that in the room there was a matrimonial bed used by the father and not as indicated by the defendant, [Name 018] and [Name 015], that there were three single beds, or the presence of [Name 005] sleeping in the place, despite the fact that all defense witnesses denied that he resided there, and even that he worked in the parish church, when emails sent by the defendant to give instructions to [Name 005] were provided, regarding activities specific to the parish, which are consistent with a person who works or provides a service in the place, such is the case of the email dated January 21, 2011, which reads: 'The Third Catechumenal Community of Hatillo has requested the Llano chapel for a gathering. Tell them that yes: [Name 054] [Value 001] or [Value 002]. Then notify the persons in charge of the Chapel, Doña [Name 055] as sacristan and [Name 056] of the board. In Poas de Aserrí on Saturday the 29th, a MULTITUDES UNIOS CON JESÚS march will be held at pm, organized by Christian churches including the Catholic one. Just so you know in case someone asks. On Thursday, January 27th, I must be at the Police Delegation. Write it in my agenda and remind me of it, please' (sic) Contradictions that in the same sense are reiterated with expressions via email such as the email that Father [Name 001] sends to [Name 005] on December second, namely: 'Thank you, I feel very well, you are doing your job well, I am even pending the payment of the house to [Name 058], your cell phone and yourself. That is the [Name 005] that pleases me, the one who does something productive, for the rest, for yourself, I even feel like having you enter the University, as if I were the one going to enter. I love You.' (sic) Making it evident that he paid for the house where he resided, a situation that has been denied during the interrogation at trial, and was even the basis for discrediting the offended party who has at all times been portrayed as a self-interested person taking advantage of others. All these pieces of evidence, as has been set forth, were analyzed by the Tribunal in an integral manner and in the terms described, allowed it to lean toward giving total credibility to the statement of the offended party, discarding the version of the facts established by both the technical and material defense, which in itself has been contradictory, imprecise, and clearly forced to justify compromising situations that were impossible to hide despite the great amount of testimonial evidence that was received, and with which it was attempted to create a nebulous haze regarding the existence of the act and the credibility of the offended party, who logically, and due to the nature of the crime and the dynamic in which it was executed, is the only one who could establish the spatial-temporal circumstances of the act and, essentially, the modus of execution of the illicit act that has been had…" (the emphasis is supplied). Note that, from the transcribed text, it is extracted, first, why the defense witnesses were not believed and, for that reason, further detail was not provided on the contradictions they incurred, but, in addition to that, it is possible to verify that the reference made to the email that the defense criticizes has the purpose of highlighting the credibility of the offended party's version, regarding that he did help in the parishes where the accused worked (he referred to several) and that the accused indeed paid for his house and studies, a thesis attacked by the defense. Therefore, although the email is from January 21, 2011, six years after the alleged abuses and refers to activities of the [...], from said material, the closeness between both subjects is inferred, and it supports the offended party's thesis more than that of the accused. The principle of community of evidence implies that an element, once offered and admitted, can be used for different purposes, so that, even if that material could have been offered to accredit acts from 2010, it does not prevent it from being used and from extracting indications regarding previous or different events. Regarding [Name 058], the tribunal, contrary to the appellant's complaint, was extensive in its analysis. On page 78 of the digital judgment in pdf, it is read: "…the declaration of [Name 058] was received, who established his arrival at the Santa Marta parish at the end of October of the year two thousand, however, he indicated remembering that the defendant [Name 001], together with [Name 059] and the offended party [Name 003], were watching television in the bedroom, stating that he had not witnessed anything strange, but that he simply saw Father [Name 001] leave the room and, some time later, the offended party and [Name 022] talking normally, placing them in a place and time that the aggrieved party stated was unoccupied at that moment. A situation that is considered by this Tribunal, interpreting a willingness of this witness to contradict the aggrieved party's declaration regarding the acts generated to his detriment, which is due to the bond of this witness with the defendant, since [Name 001] is the one who provides him with help, namely housing and food when he had to leave his home due to the constant problems generated in his household because of his father's involvement in drug trafficking activity and the intrafamily violence of which they were frequently victims. A situation that allowed him to get ahead in his studies and the subsequent acquisition of means of subsistence, making it clear that Father [Name 001] was always present in his life as an option of support, evidencing that from the beginning of this process, his support for the father was such that he even confronted the complainants, trying to discredit them, detracting from them 'per se' credibility, so before this Tribunal, he emerged as a witness clearly inclined to benefit the defendant, to the point that he had to acknowledge that he used extremely contemptuous and denigrating phrases against people who were against Father [Name 001]. Coupled with the above, the defense's own evidence has contextualized the dynamic of the young men with Father [Name 001], including on the basis of solidarity, companionship, and love of neighbor that they profess, for example, they celebrated birthdays, sometimes went out together, and had lunch together in the same way as on that very day, because [Name 059] declared that he 'felt bad' not inviting [Name 003] to a plate of food because it was lunchtime, so the Tribunal does not trust the account of [Name 058] because, how can one believe that on that day his peers, together with Father [Name 001], could have lunch and watch a movie in the only bedroom where there is cable television service in the Parish House and would exclude him? That is not expected, unless the young man [Name 058] was not in the place. Just as it is also not logical that he was busy looking at some magazines and for that reason missed the movie, as if he easily had another television with said service, which was denied by the defendant [Name 001], who stated that cable television was exclusive to his bedroom. Likewise, even if these contradictions were overcome, how can one trust a person who was outside the bedroom focusing his attention on some magazines and at the same time informing himself of what was happening inside a bedroom that likely had no visibility? Hence, all the aforementioned circumstances lead the Tribunal to conclude that his statement has no credibility whatsoever." (The emphasis is supplied). Note that the tribunal not only discounted the value of his statement due to his feelings of animosity towards the witnesses, but also due to the contradiction with the defense evidence itself and the inconsistencies of his own account, without this tribunal determining any irregularity in the scrutiny carried out, which was aligned with the rules of logic, experience, and elementary psychology, all of which make up sound criticism (sana crítica).

The same occurs with the witness [Name 018], who, on page 82 of the PDF judgment, is used by the court to partially support the version of the injured party (the proximity of at-risk youth to the accused) but, at the same time, to deny him credibility on other points where he was imprecise or complacent. Finally, all these witnesses are scrutinized together, stating: "…it is from this point that the Court detracts credibility from the defense witnesses [Name 018], [Name 066], [Name 063], [Name 064], and [Name 048], who at all times sought to portray [Name 005] as a lying, self-interested, and bad person who, faced with the father's refusals to provide more help, decided to denounce him, falsely attributing criminal acts to him, even in contradiction with documentary evidence submitted to the record, which an attempt was made to decontextualize by giving it a different content than what, in the Court's opinion, actually happened. Such is the case of [Name 064] and [Name 066], witnesses from whom it could be inferred that they presented total animosity towards the offended party, evidenced by the text messages indicated: 'In a message sent via WhatsApp to the group called "[Name 081]" in which he states "Mae cago (sic) en su madre pedaso (sic) de hijueputa y me alegro mucho que su abuela se muriera sabe que me cago en el vidrio del ataúd de su abuela malparido [Name 005]" and even made publications on social media to the general public: "como pueden haver (sic) personas tan hijueputas en este mundo que se le dan (sic) de comer y muerden la mano del que les da de comer que hablan sin saber … Nadie es culpable has (sic) que se demuestre lo contrario malditos fariseos en esta vida todo se paga…Son como las culebras, pero muy sencillo las culebras se matan pizoteando (sic) la cabeza… [Name 005]" entering into public discussions with a person named [Name 070], a person who responded: "otro mae como le dije a [Name 068] ahora digame (sic) en q (sic) me ayudo ese mae a mí? En nada papi para eso siempre he bretiado (sic) para no tener que dar nada a cambio de favores y no lo dije yo lo dijo el que lo denuncio!"" [Name 070] "Mae yo hablo xg le creo a [Name 005] y si resulta mentira cosa g dudo yo voy a ser el primero en disculparme públicamente mientras no!!" (sic) [Name 064]: "Qué más que [Name 005] cuando viví con él porque el hace todo eso porque como él lo encontró robando plata de la iglesia y le quitó toda ayuda por eso [Name 005] esta doido por él tiene que agradecerle por que por esa persona él tiene una carre" (sic) "Jaja siga hablando sin saber cómo te dige espero muy pronto tus discutpas ha esa persona y por este medio culebra" (sic) Y usted no es nadie para juzgar no juzguéis porque serás gusgado" (sic) [Name 070]: "Si mae ahora todo mundo busca vengarse inventando cosas pff ni q la gente fuea estúpida para no darse cuenta como están las varas pero igual para eso está la ley para gadar en el asunto y se haga pagar a los responsables en caso de g sea. (sic) and in the case of [Name 066]: who participated in these dialogues stating "esto es así [Name 058] como mierda que es ese perro que muerde la mano que le da de comer". Elements that were considered in relation to (sic) the objectivity and credibility of the witnesses who were received during the adversarial proceedings and explain the reason for their complacent statements toward the defense's version, who with fallacies "in personae", attempted to eliminate the existence of the fact that has been held as accredited. However, from the declaration of [Name 058] important elements were extracted, which even contradict what was said by other witnesses…" (Digital judgment, pages 85-86 of the PDF; highlighting is our own; spelling errors are from the original documents). As noted from the transcribed text, the trial court not only did not disregard the referenced evidence but analyzed it as appropriate, noting the interest (which is not the same as acknowledging that it was evidenced by attitudes as lacking in objectivity as insults toward the injured party) assumed by some defense witnesses, sufficient reason to deny them credibility but which, as if that were not enough, was also linked to contradictions among them and internally within some of them. Finally, the fact that on the day of the reading of the operative part, neither of the two offended parties attended, while the subject [Name 072] did, who, together with his wife, were the only ones complaining about the priest, does not imply any irregularity or indication of the falsity of their statements, since it is in any person's interest to verify what is resolved in a criminal proceeding that involves figures from their community and in which, moreover, they intervened by taking actions regarding what was considered the common good. For all the foregoing, the arguments raised do not have the merit to modify what was decided and must be rejected.

**IV.-** In the **first argument of the appeal filed by the Public Ministry**, a violation of due process is alleged due to an erroneous application of the principle of correlation between accusation and judgment, which led to the non-application of the substantive norm, specifically Articles 156 and 157 of the Penal Code. The appellant argues that the accused was acquitted for the fourth event of the accusation (where [Name 005] appeared as the victim) because it was considered that, from the wording of said fact, it was not possible to extract the accusation required by the criminal type of rape (violación). However, for the appellant, this reasoning is unfounded. They transcribe what was stipulated in this regard in the prosecutorial document and consider that both from there and from the complaint and the trial statement given by the aggrieved party, it is possible to determine that the imputed act fits the crime of rape, since the circumstances of time, mode, place, and the aggravating factor derived from the accused's condition as a priest are described, which generated the trust in the victim so that [Name 001] abusively performed the act of introducing his penis into the victim's anus. Contrary to what the court indicates, in their opinion, it is not required to indicate that the active subject performed the conduct with the intention of "raping" since the simple wording of the criminal type makes direct reference to the verb to penetrate. They consider that the accusation does describe that typical action and that even by removing the phrase "with the intention of sexually abusing the aggrieved party" from the accused fact, the result would have been a conviction for the crime of rape, since the accused's right to defense was not violated at any moment. They end by saying that, regardless of whether the active subject's purpose was to abuse or rape, one does not exclude the other, since, in the case of sexual crimes, the criminal actions will always be abusive and will always have a sexual intention. They request that this part of the decision be annulled and a remand be ordered, keeping the judgment unaltered regarding the conviction for the remaining crimes. *The argument was reiterated at the hearing.* *Upon answering the appeal*, the defense counsel requested that the appeal be declared inadmissible (which has already been resolved in the early sections of this judgment). The representative of Temporalities of the Archdiocese of San José said they would not rule on this challenge, nor did the lawyer from the Office of Civil Defense of the Victims. **The complaints are not admissible.** The crime of rape attributed to the accused was to the detriment of the offended party [Name 005], was located in **2010** in the [...] and was described as follows: "*1. The offended person [Name 005] was born on September third, 1988 (…) 4. Subsequently, without being able to specify the exact date, but in the year 2010, one day during the nighttime hours, the offended party [Name 005] was lying in his bedroom at the [...], at which time the accused here, [Name 001], **taking advantage of the relationship of trust established with the aggrieved party, as well as his power relationship since he was the Priest**, with the intention of sexually abusing the aggrieved party, lay down next to the aggrieved party and abusively pulled down his boxers and immediately penetrated his anus with his penis until ejaculating*." (The name is replaced by initials). This accusation allows us to determine that, at the date of the events, the offended party was of legal age (22 years old), did not have any disability condition, nor is it *accused* that the event was committed with violence against persons. This is important because, based on such circumstances, the trial court determined that the prosecutorial accusation did not attribute the condition of vulnerability that the accused was said to have taken advantage of. After making extensive doctrinal and jurisprudential references on the relevance of the accusation and its normative support and copying the accused facts, the court motivated the acquittal on the following arguments set forth in considering II.4 (page 87 and following of the PDF judgment): "*A fact that it attempted to fit into the provisions of Article 156 of the Penal Code, which (…) establishes as a constitutive action of the crime 'carnal access' under certain assumptions; the first, minority of the victim, which in the case at hand does not apply since in the year two thousand ten [Name 005] was twenty years old, **the second when there exists vulnerability of the victim, inability to resist and this is taken advantage of by the active subject to access the victim or make them access, an element that in the specific case is not described in the accusation** made against the accused, the Public Ministry opting, in the Court's opinion, erroneously to describe in the accusation elements typical of sexual abuse and not those that corresponded to the criminality of rape, which is in no way corrected with the aggravating elements established in Article 157 of the same normative body, such as a power relationship or that of priest, since they are not described in the current norm and in all cases for an aggravating factor to be established, the base type must exist. Thus, in the case under analysis, the Public Ministry incurs a serious error when imputing the fact, which impacts this Court's ability to hold it as accredited, since its correction at this procedural stage (trial) and by the same sentencing Court implies a violation of the principle of (sic) correlation of accusation and judgment, due to having to modify essential elements of the accusation, due process, and the right to defense that assists the accused, for which reason it is estimated that the appropriate course in this case is to acquit the accused [Name 001] of the crime of rape that was being attributed to him to the detriment of [Name 005]*." (The highlighting is supplied). This Chamber agrees with the position of the trial body. Note that in the facts of the prosecutorial document, while it is mentioned that the accused used his relationship of trust and power, due to being a priest, this is part of the aggravating factor for rape stipulated in numeral 157, subsection 8, when indicated: "*The prison term shall be from twelve to eighteen years when: (…) The author performs the conduct taking advantage of a power relationship resulting from the exercise of their position, and this is performed by religious ministers, spiritual guides*…" However, for an aggravating factor to exist, the assumptions of the basic type must be met, which stipulates: "*Article 156.- Whoever makes another engage in or has carnal access via oral, anal, or vaginal means, with a person of one or the other sex, in the following cases, shall be sanctioned with a prison term of ten to sixteen years: 1) When the victim is under thirteen years of age. **2) When they take advantage of the victim's vulnerability or the victim is unable to resist.** 3) When corporal violence or intimidation is used. The same penalty shall be imposed if the action consists of introducing one or more fingers, objects, or animals into the victim, via the vaginal or anal route, or forcing them to introduce them themselves*." (Bold text is supplied). Although it is on the basis of the assumption of subsection 2) that the prosecutorial entity has attempted to cement its case, it turns out that it never described, in the facts of the accusation, what that vulnerability of the victim or their inability to resist consisted of. It is not sufficient that it was proven that both in the complaint and in their statement at trial they said they were depressed, crying, or seeking comfort; rather, it was necessary that the prosecutorial entity stipulate it in the accusation. In other words, even if the offended party credibly stated: "*In two thousand ten I had a girlfriend (…) I felt very bad, I was unmotivated (…) I curled up in bed, I just wanted to be there because I felt bad, I took off my clothes to sleep, I stayed only in boxers and shorts, I took off my pajamas, I settled on my left side, I was in a fetal position, curled up, I felt sad, wanting to cry, I didn't feel well, it was about ten at night (…) that room was very dark, lights off, door closed, just without a lock. When I was curled up, the door is heard and it was [Name 001] with his usual Sleep Clothes, shirt and boxers, he had a drink, he sits on the bed to see what's wrong with me, he thought it was about the turtles, I told him what happened with the girl, he lies down behind me, in that trust from so many years of sharing, a word of support, he's going to relax me, I rejected the drink. I tasted it, spicy, I can't stand spicy, I rejected it, I got up, not sitting, I didn't want to see him, I turned back. He snuggled up, we all called him Pa, when he lies down I don't know how much time passed, he behind me, me facing forward, what I had was the wall, me with my back turned, he lies down behind me, I feel it's normal when he feels bad I lie down next to him, I think he's going to talk when I realize he pulls down my boxers, I feel confused, he penetrates me with his penis in the Anus, that lasts a couple of minutes, he pulled my boxers down completely, as he pulled down my buttocks with one of his fingers, I'm 1.89 meters tall, [Name 001] is about one seventy-something, no more than 1.75, I stayed the same, snuggled up with this side on the (sic) mattress, I didn't want to move. I just wanted the day to end.*" In the prosecutorial document, it was not described that he was in a condition of vulnerability due to depression over an emotional breakup and that the accused took advantage of this. Holding it as proven in this way, without an accusation stipulating it, would be a flagrant violation of the principle of correlation between accusation and judgment, as the trial body correctly indicated, even referencing jurisprudence from the Inter-American Court of Human Rights. The appellant seems to have misunderstood the trial body's argument, since it does not criticize the fact that the word "rape" was not used nor that it was indicated that the conduct was committed with that particular intention. What is criticized is that it was not described what the causal factor for the configuration of the base type consisted of, without which one cannot speak of an aggravating factor and it cannot be considered that, in the absence of this, the right to defense is not affected, since it was essential so that the circumstances, as has been attempted to be done in this venue, are not modified. It is not true that, in the case of sexual crimes, the actions will always be abusive because in this case the reference is to persons of legal age who have control over the protected legal right. For this same reason, even if it were not formally accused, it could not be considered that sexual abuse was configured. The type corresponding to the date of the facts for sexual abuse against persons of legal age stipulated: "Article 162.- If the abuses **described in the previous article** are committed against a person of legal age, the penalty shall be from two to four years of imprisonment. The penalty shall be from three to six years of imprisonment when: 1) The author **takes advantage of the offended person's vulnerability**, or they are unable to resist, or corporal violence or intimidation is used. 2) The author is an ascendant, descendant, sister, or brother of the victim. 3) The author is an uncle, aunt, nephew, niece, or cousin of the victim. 4) The author is a stepmother, stepfather, stepsister, or stepbrother of the victim. 5) The author is the guardian or the person in charge of the education, guard, or custody of the victim. 6) The author performs the conduct against one of the relatives of their spouse or cohabitant, indicated in subsections 3) and 4) above. 7) The author takes advantage of their relationship of trust with the victim or their family, whether or not a kinship relationship exists." (Thus reformed by Article 1° of the Law "*Fortalecimiento de la lucha contra la explotación sexual de las personas menores de edad mediante la reforma y adición de varios artículos al Código Penal, Ley N° 4573, y reforma de varios artículos del Código Procesal Penal, Ley N° 7594*"; Law No. 8590 of July 18, 2007). See that vulnerability is an aggravating factor. Therefore, the description and proof of the circumstances of the base type were required, that is, of that referred to in Article 161 of the Penal Code, a numeral that had to be fulfilled in all its elements except for the age of the victim, who was already of legal age. At that date, said numeral stated: "*Article 161.- Sexual abuses against minors and incapacitated persons. Whoever abusively performs acts with sexual purposes against a minor or incapacitated person or forces them to perform them on the agent, on themselves, or on another person, **provided it does not constitute the crime of rape**, shall be sanctioned with a prison term of three to eight years.*" (Bold text is supplied). However, in this case, the facts did configure the crime of rape; therefore, the basic type of sexual abuses was not configured. As things stand, the decision is in accordance with the law, and the argument must be rejected since it is the prosecutorial entity that must bear the consequences of its own negligence or lack of skill in drafting the accusation, without this being correctable by a jurisdictional body.

**V.-** In the **second ground of the prosecutorial appeal**, a lack of reasoning in the imposed penalty is alleged. It indicates that, based on the third considering of the judgment, called "legal analysis" (which it transcribes), the reason why they opted to impose the minimum penalties for the accused crimes and held them in their simple, non-aggravated modality, as in that representation's opinion it should have been condemned, was justified.

She argues that the judges departed from the <em>quantum</em> of the sanction requested by the prosecuting authority, which was based on the legal classification —for the acts committed against [Nombre 005] when he was a minor— under the crime in article 161, subsection 4 of the Penal Code in force at the time of the acts, which punished sexual abuse with four to ten years of imprisonment if any of the described aggravating circumstances were present, among them that the perpetrator took advantage of his relationship of trust with the victim or their family. In the appellant's view, given that the accused used his status as a priest at the time of committing the act, he took advantage of the trust with the offended party and that, plus the degree of affectation to the aggrieved parties due to the manner in which the acts were committed and the opprobrious consequences for the victims, made him deserving of the requested penalty. However, the judges considered that such a ground was not established and set the minimum sanction for each crime. She considers there was an error both in the legal classification and in the penalty. She requests that the partial ineffectiveness of the challenged ruling be declared regarding these points, but that the judgment remain unscathed in the rest. <em>The argument was reiterated at the hearing.</em> <u>In responding to the</u> <u>appeal</u>, the defense attorney requested it be declared inadmissible (which has already been resolved). The representative of Temporalidades of the Archdiocese of San José stated she would not make a statement on this appeal, and the lawyer from the Office of Civil Defense of Victims also did not do so. <strong>The complaint is partially admissible.</strong> In this section, the appellant disagrees both because the proven facts were not considered part of the aggravated offense and with the amount of the sanction imposed —the minimum for the criminal offense in force at that date, as stated by the trial court—. Although the appellant merely transcribes parts of the judgment (which contain reference to the three proven events) and refers, with particular emphasis, to the issue of minority of age (which only one of the offended parties had, meaning it only affects two of the three proven facts), she ultimately requests the nullity of the entire sanction, generically. For this reason, and because the appeal's transcriptions of the trial judgment allude indistinctly to both injured parties, this Chamber considers that the entirety of the legal classifications and penalties for the proven facts are being challenged, and will address the libel as such (articles 439 and 446 of the Code of Criminal Procedure). For these purposes, since events must be judged according to the law in force at the time they occur (article 11 of the Penal Code) unless subsequent legal provisions are enacted that are more favorable to the accused person (articles 12 and 13 of the Penal Code; 9 of the American Convention on Human Rights and 15 of the International Covenant on Civil and Political Rights), it is necessary, first, to recall what was held as proven in the challenged decision, in order to properly contextualize the response to the complaint. Next, to verify the law in force at that time. Thirdly, to rule out that any of the multiple reforms that have occurred in the area of sexual crimes has made the more favorable retroactivity operative and, finally, to address whether the determination made by the trial court was in accordance with the law based on this framework and the evidence presented, without neglecting, of course, the principles of proportionality and resocialization that are cross-cutting to punitive matters. In this order of ideas, the court convicted the accused of three crimes: <strong><em>i)</em></strong> two that occurred, on different days, during the year <strong>2005</strong> against the offended party [Nombre 005], who at that time was <strong>16 years old</strong>, and <strong><em>ii) </em></strong>the other event that occurred in the first half of October <strong>2013</strong> against [Nombre 003] (by then <strong>of legal age</strong>). As observed, these are events distant in time that —for this reason, given the constant practice in the country of legislatively modifying the regulation of sexual crimes— makes it necessary to make references to different laws. Therefore, to facilitate the exercise, the successive analysis will be divided by offended parties, although in both cases the proposed analysis scheme will be followed. <strong>A)</strong> <u>Events against </u><u>[Nombre 005]</u><u>.</u> The criminal offense <u>currently in force</u> regarding the crime of sexual abuse against a <u>minor</u> was reformed by numeral 1 of Law No. 8590 of July 18, <u>2007</u>, named the "<em>Strengthening the Fight against the Sexual Exploitation of Minors through the reform and addition of several articles to the Penal Code, Law No. 4573, and reform of several articles of the Code of Criminal Procedure</em></span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><em>Penal, Law No. 7594</em></span><span style="font-size: 12pt;">". Therefore, it was not in force on the date of the facts (both events occurred in <u>2005</u>) but it is convenient to keep it in mind in order to subsequently verify whether this amendment is more favorable (and retroactively applicable) to the accused, or not, and why. The criminal offense in force today (and, it is repeated, <em>prima facie</em> not applicable to the proven facts, given their date of commission), stipulates: </span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 18mm 0.07mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">«</span><span style="font-size: 11pt;"><em>Article 161.- Sexual abuse against minors and incapacitated persons. Anyone who abusively performs acts with sexual intent against a minor or incapacitated person, or forces them to perform such acts on the agent, themselves, or another person, provided it does not constitute the crime of rape, shall be punished with a prison sentence of </em></span><span style="font-size: 11pt;"><strong><em>three to eight years</em></strong></span><span style="font-size: 11pt;"><em>. </em></span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 18mm 1.88mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>The penalty shall be </em></span><span style="font-size: 11pt;"><strong> <em>four to ten years</em></strong></span><span style="font-size: 11pt;"><em> of imprisonment when:&nbsp;&nbsp; </em></span></span></p> <ol style="margin-top: 0mm; margin-bottom: 0mm;"> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <div style="margin-top: 0pt; margin-bottom: 5pt;"> <p style="line-height: 108%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>The offended person is </em></span><span style="font-size: 11pt;"><strong><em>under fifteen years</em></strong></span><span style="font-size: 11pt;"> <em>of age.&nbsp;&nbsp; </em></span></span></p> </div> </li> </ol> <div style="text-indent: 0mm; line-height: 150%; margin: 0.00mm 18mm 0.00mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;">(Thus reformed the previous subsection by article 1° of Law No. 9406 of November 30, 2016, "Strengthening the legal protection of girls and adolescent women in situations of gender-based violence associated with abusive relationships.") </span></span></div> <ol style="margin-top: 0mm; margin-bottom: 0mm;" start="2"> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>The perpetrator takes advantage of the vulnerability of the offended person, or the latter is unable to resist, or bodily violence or intimidation is used. </em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>The perpetrator is an ascendant, descendant, sister, or brother of the victim. </em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>The perpetrator is an uncle, aunt, niece, nephew, or cousin of the victim. 5)&nbsp;&nbsp;&nbsp;&nbsp; The perpetrator is the stepmother, stepfather, stepsister, or stepbrother of the victim. </em></span></span></p> </li> </ol> <ol style="margin-top: 0mm; margin-bottom: 0mm;" start="6"> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>The perpetrator is the guardian or responsible for the education, custody, or care of the victim. </em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>The perpetrator commits the conduct against any of the relatives of his spouse or cohabitant, indicated in subsections 3) and 4) above. 8)&nbsp; The perpetrator takes advantage of his relationship of trust or authority with the victim or their family, whether or not a kinship relationship exists. </em></span></span></p> </li> </ol> <div style="text-indent: 0mm; line-height: 150%; margin: 0.00mm 18mm 0.00mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;">(Thus reformed the previous subsection by article 1° of Law No. 9406 of November 30, 2016, "Strengthening the legal protection of girls and adolescent women in situations of gender-based violence associated with abusive relationships.")» </span></span></div> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">For the year <u>2005</u> (date of the proven facts against this affected party), the crime of sexual abuse against minors was established by the change made to the 1973 Penal Code by article 1° of Law No. 7899 of August 3, <u>1999</u>. However, before outlining its content, it is imperative to consider some additional data, which complicate the legal landscape. That Law No. 7899 of August 3, 1999 (which introduced the criminal offense that interests us, but also incorporated other crimes, such as sexual abuse against persons of legal age) was partially annulled by the judgments of the Constitutional Chamber numbers </span></span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-132383"><span style="color: #0563c1; font-family: Arial;"> <span style="font-size: 12pt;"><u>9453-2000</u></span></span><u> </u></a> <span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">(arising from a facultative consultation where the unconstitutionality of article 16</span><span style="font-size: 12pt;"><u>1</u></span><span style="font-size: 12pt;"> of the Penal Code was alleged) and </span></span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-134842"><span style="color: #0563c1; font-family: Arial;"><span style="font-size: 12pt;"><u>6304-2000</u></span></span><u> </u></a><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">(which addressed a facultative consultation questioning the constitutionality of article 16</span><span style="font-size: 12pt;"><u>2</u></span><span style="font-size: 12pt;"> of the Penal Code). Although the first of these decisions merely stated that one "had to abide by" what was resolved in the second, the latter made an express declaration of unconstitutionality, but only for the criminal offense that mentions adult victims. This generated serious confusion about the scope of that pronouncement regarding the minor population affected by sexual offenses, because, on one hand, a referral was made to this annulling vote, but, on the other, its content said nothing about that specific provision or topic. In other words, this expressly decreed unconstitutionality did not affect the criminal offense of sexual abuse against minors (article 161 of the Penal Code), but only the crime against adults (article 162 of the Penal Code), as the Constitutional Chamber was emphatic in stating: «</span><span style="font-size: 11pt;"><em>The legislator's omission to indicate the type of sanction implies a transgression of the cited constitutional principles and specifically of numeral 39 of the Political Constitution. Therefore, it is the criterion of this Chamber that the following phrases of article </em></span><span style="font-size: 11pt;"><strong><em>162 of the Penal Code</em></strong></span> <span style="font-size: 11pt;"><em>, reformed by Law Number 7899, named "Law against the sexual exploitation of minors," published in La Gaceta number 159 of August 17, 1999, are unconstitutional: a) From the first paragraph, the one that states: "The penalty shall be two to four years", b) From the second paragraph, the one that states: "The penalty shall be three to six years…"</em></span><span style="font-size: 12pt;">»</span><span style="font-size: 11pt;"><em>. </em></span><span style="font-size: 12pt;">As a result of said resolution, a series of laws and constitutional pronouncements related to the criminal offense of sexual abuse against persons of <u>legal age</u> would later be issued, which, however, will not be outlined in <u>this</u> section, as they are not relevant to the present matter, although they will be</span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">addressed in the <u>other</u> one, regarding the offended party who was indeed of legal age. However, since the Constitutional Chamber (in the consultation made about article 161 of the Penal Code concerning affected minors) had referred to what was resolved regarding article 162 of the Penal Code (unconstitutionality regarding the offense related to adult victims), speculation began as to whether the effects were the same for both situations (nullity) and there were various <em>interpretations </em>on the subject. Finally, it was necessary to bring the discrepancy to the body that originated it, i.e., the Constitutional Chamber, and that is how, almost a year later, said court, through vote number </span></span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-244037"><span style="color: #0563c1; font-family: Arial;"> <span style="font-size: 12pt;"><u>10140-2001</u></span></span><u> </u></a> <span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">revoked or annulled (because it was also not univocal in the proper use of legal language and used both terms in different parts of the decision, as if they were synonymous, without being so!) partially its own judgment number 9453-2000 to clarify the following «…</span><span style="font-size: 11pt;"><em>in the operative part it reads: "Abide by what was resolved in judgment number 06304-2000 of fifteen hours fifty-six minutes on July nineteenth, two thousand."&nbsp; In said judgment (06304-00), the Chamber partially annulled article 162 of the Penal Code </em></span><span style="font-size: 11pt;">(…),</span><span style="font-size: 11pt;"><em> nothing was indicated in relation to article 161 because it was not the subject of the consultation. Consequently, judgment 09453-00, which resolved the consultation of constitutionality filed by the Trial Court of Cartago, suffers from an obvious error, as far as said article is concerned.&nbsp; If, in the body of the judgment, it was considered that the norm was unconstitutional, it should have been so established in the operative part, annulling the norm from the legal system as of the first publication of the respective notice in the Boletín Judicial and indicating the consequences of said annulment </em></span><span style="font-size: 11pt;">(…)</span><span style="font-size: 11pt;"> <em>&nbsp; The defects noted, in principle, should be corrected in this resolution.&nbsp; However, it is estimated that the criterion held by the Chamber in relation to article 161 of the Penal Code, reformed by the cited Law Number 7899, must be modified and therefore judgment number 09453 </em></span><span style="font-size: 11pt;">(…) </span><span style="font-size: 11pt;"> <em>of the year two thousand is partially revoked.&nbsp; Regarding what was resolved with respect to article 162 of the same Law, both the recitals and the operative part of the ruling are upheld</em></span><span style="font-size: 12pt;">» and, regarding the consultation made about article 161 of the Penal Code (concerning the fact that the second paragraph, on aggravating factors, did not state the type of penalty —"imprisonment"— that is mentioned in the first paragraph, but only the amounts of years) it was stated: «…</span><span style="font-size: 11pt;"><em>the consultation filed is answered in the sense that said article is not contrary to the principle of legality, given that interpreting the norm both from its grammatical and logical-legal sense, there is no doubt that the legislator provided for the imposition of a "prison sentence" for the case of aggravated conduct of sexual abuse against minors and incapacitated persons</em></span><span style="font-size: 12pt;">.» Having clarified the legal landscape, article 161 of the Penal Code in force in 2005 was the following: </span></span></p> <div style="text-indent: 0mm; line-height: 158%; margin: 0.00mm 5mm 0.00mm 10mm;" align="left"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">«</span><span style="font-size: 11pt;"><strong>Sexual abuse against minors and incapacitated persons</strong></span> <span style="font-size: 11pt;"><em>ARTICLE 161.- </em></span></span></div> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 18mm 0.07mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>Anyone who abusively performs acts with sexual intent against a minor or incapacitated person, or forces them to perform such acts on the agent, themselves, or another person, provided it does not constitute the crime of rape, shall be punished with a prison sentence </em></span><span style="font-size: 11pt;"><strong><em>of three to eight years</em></strong></span><span style="font-size: 11pt;"><em>.</em></span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 18mm 1.88mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>The penalty shall be </em></span><span style="font-size: 11pt;"><strong> <em>four to ten years</em></strong></span><span style="font-size: 11pt;"><em> in the following cases: </em></span></span></p> <ol style="margin-top: 0mm; margin-bottom: 0mm;"> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <div style="margin-top: 0pt; margin-bottom: 5pt;"> <p style="line-height: 108%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>When the offended person is under twelve years of age. </em></span></span></p> </div> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>When the perpetrator takes advantage of the vulnerability of the offended person, or the latter is unable to resist, or bodily violence or intimidation is used. </em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>When the perpetrator is an ascendant, descendant, brother by consanguinity or affinity, stepfather or stepmother, spouse or person linked in an analogous cohabitation relationship, guardian or responsible for the education, custody, or care of the victim. </em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>When the perpetrator takes advantage of his relationship of trust with the victim or their family, whether or not a kinship relationship exists.</em></span></span><span style="color: #010101; font-family: Arial; font-size: large;"><span style="font-size: 14pt;">» </span></span></p> </li> </ol> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">Now, the facts </span><span style="font-size: 12pt;"> <u>attributed</u></span><span style="font-size: 12pt;"> to the accused stipulated: “</span><span style="font-size: 11pt;"><em>1. The offended person </em></span><span style="font-size: 11pt;"><em>[Nombre 005]</em></span><span style="font-size: 11pt;"><em>. was born on September third, nineteen eighty-eight, so that at the date the facts began, he was sixteen years old. 2. Without being able to specify the exact date but within the </em></span><span style="font-size: 11pt;"><strong><em>year two thousand five</em></strong></span> <span style="font-size: 11pt;"><em>, when the offended person (…) was </em></span><span style="font-size: 11pt;"><strong><em>sixteen years old</em></strong></span> <span style="font-size: 11pt;"><em>, on at least one occasion, one undetermined day, while he was sleeping in the same bed as the defendant here </em></span><span style="font-size: 11pt;"><em>[Nombre 001]</em></span><span style="font-size: 11pt;"> <em> in the house </em></span><span style="font-size: 11pt;"><em>[...]</em></span><span style="font-size: 11pt;"><em>, the accused </em></span><span style="font-size: 11pt;"><em>[Nombre 001]</em></span><span style="font-size: 11pt;"><em>, with the intention of abusing the aggrieved party and </em></span> <span style="font-size: 11pt;"><strong><em>taking advantage of his young age, innocence, and the power relationship from being a priest</em></strong></span><span style="font-size: 11pt;"><em>, abusively put his hand inside the boxer shorts and touched his penis, until satisfying his libidinous desires. 3. Subsequently, without being able to specify the exact date but within the year two thousand five, when the offended person </em></span><span style="font-size: 11pt;"><em>[Nombre 005]</em></span><span style="font-size: 11pt;"><em>. </em></span></span></p> was sixteen years old, in </em></span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>at least one opportunity, on an unspecified day, while he was sleeping in the house </em></span><span style="font-size: 11pt;"><em>[...]</em></span><span style="font-size: 11pt;"><em>, the accused here </em></span> <span style="font-size: 11pt;"><em>[Name 001]</em></span><span style="font-size: 11pt;"><em> with the intention of abusing the victim and </em></span><span style="font-size: 11pt;"><strong><em>taking advantage of his young age, innocence, and power relationship as the priest</em></strong></span><span style="font-size: 11pt;"><em> abusively put his hand inside the victim's boxers and touched his penis, while masturbating and satisfying his libidinous desires." </em></span><span style="font-size: 12pt;">(The emphasis is supplied; the name of the offended person is changed to initials and the fact from the acquittal already referenced in another segment of this decision is omitted). The first thing that must be noted, then, is that, although the accusation refers to the defendant having taken advantage of the "young age" of the victim, it also stipulated that the victim was 16 years old at the time of the events, so it is probable that the reference is due, rather, to the use of an unmodified template, from when the victim was in his youth, close to reaching the age of majority, an amount of years that cannot be considered "young." This means, secondly, that the aggravating circumstance of subsection 1 must be ruled out (being under 12 years of age at the time of the events, an age that would later be increased, but whose provision is also inapplicable, as it is not more favorable). Neither is it accused or proven that there is any family relationship between the victim and the accused, so subsection 4 is not applicable in that factual segment. Likewise, <span class="example1 304896" style="font-size: 12pt;">when contrasting the accused facts against the regulation then in force, it must be emphasized that, at that time, the condition of priesthood (or religious minister) of the defendant was not expressly stipulated as an aggravating circumstance in the law. Finally, in this series of preliminary considerations, it must be emphasized that the subsequent regulatory provisions (the current one and other changes introduced by Article 1° of Law No. 9406 of November 30, 2016, and which were recorded when transcribing the regulations applicable at this date) did not contemplate favorable regulations for the accused persons, since what they did was increase the penalties or the age of the victim for the aggravating circumstance to arise, as well as create more causes for aggravation. Therefore, the exceptions to the rules of extractivity due to retroactive application do not apply, and ultra-activity or the criminal type (already repealed) but in force at the time of the proven facts must be used.</span> Now then, what remains, consequently, is to verify whether there was a taking advantage of vulnerability; whether there was an inability to resist (subsection 2); </span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">whether the perpetrator was the guardian or the person in charge of the care or custody of the victim or whether the perpetrator made his relationship of trust prevail. However, if the prosecutorial accusation that has been transcribed is observed, nothing related to vulnerability, guardianship, care, custody, or education between active and passive subjects, nor about the inability to resist, is mentioned. What it does refer to is a taking advantage of the victim’s innocence and his power relationship as a priest of the defendant, but this is not equivalent to that. This implies that those aggravating circumstances were not imputed and, therefore, the court could not have referred to them, at least not without grossly violating the principle of correlation between accusation and sentence, which in turn forms part of the constitutional principle of due process (Article 365 of the Code of Criminal Procedure and vote number 1739-92 of the Constitutional Chamber). It remains to be determined, then, whether taking advantage of innocence and the power relationship as a priest (which was the only thing mentioned in the accusatory document) can be considered as part of the relationship of trust (subsection 4 of Article 161 of the Penal Code in force in 2005) and how that was assessed in the judgment on the merits. In this judgment, when analyzing the legal classification and the penalty starting from Considerando III, it was stipulated: "</span><span style="font-size: 11pt;"><em>Hence, in the present case, only the facts constituting the crime of sexual abuse against a minor are held to be proven (</em></span><span style="font-size: 11pt;"><em>[Name 005]</em></span><span style="font-size: 11pt;"><em>.) which, according to the provisions of Article 161 of the Penal Code in the abstract </em></span><span style="font-size: 11pt;">(…)</span><span style="font-size: 11pt;"><em> Conduct that is held to be proven </em></span> <span style="font-size: 11pt;"><strong><em>in its simple form, since the accusatory document did not describe any of the aggravating circumstances described in the provision, </em></strong></span><span style="font-size: 11pt;"><strong><em><u>despite</u></em></strong></span> <span style="font-size: 11pt;"><strong><em><u>their factual concurrence in the case at hand</u></em></strong></span><span style="font-size: 11pt;"><em>. However, this Court is of law and must issue its ruling with total objectivity in respect of the principles of due process, so that in order to avoid violating the right of defense and the principle of correlation between accusation and sentence, the facts of sexual abuse against a minor were established with the simple description of the referred criminal type. Under that understanding, the criminal type of 'Sexual Abuse' contains a series of objective elements that describe the criminal conduct possible to be subsumed, which is complemented by the subjective type and forms the initial element of typicalness. We have that the way this illicit conduct is expressed reaches its typical description and is extended to other situations that may be receivable within the principle of legality and that are not necessarily explicitly collected in numeral 161 of the </em></span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 0mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>Penal Code. As we will see, </em></span><span style="font-size: 11pt;"> <strong><em>the common characteristic of the crime of sexual abuse is expressed through the existence of abusive acts, which manifest themselves in various forms and gradually shape, generically, a concept of abuse capable of accommodating the various forms of appearance of these.</em></strong></span><span style="font-size: 11pt;"><em> For its part, the protected legal interest is the sexual integrity and healthy sexual development of the minor </em></span><span style="font-size: 11pt;">(sic)</span><span style="font-size: 11pt;"><em>. In the specific case, it is held that the victim (passive subject) was sixteen years old at the time of the events and the accused </em></span><span style="font-size: 11pt;"><em>[Name 001]</em></span> <span style="font-size: 11pt;"><em> (active subject), </em></span><span style="font-size: 11pt;"><strong><em>taking advantage of the age and innocence of his victim</em></strong></span> <span style="font-size: 11pt;"><em>, performed two openly abusive actions that injured the sexual integrity of the same, which he perpetrated during the timeframe from February to September of two thousand five, with two crimes of sexual abuse being held as proven </em></span><span style="font-size: 11pt;">(…) </span> <span style="font-size: 11pt;"><em>the accused </em></span><span style="font-size: 11pt;"><em>[Name 001]</em></span><span style="font-size: 11pt;"><em>, executed two typical actions protected by criminal law in that he sexually abused a minor sixteen years of age, touching his penis underneath his boxers while he was asleep, and on the second occasion, in addition to performing an identical touching, touching his penis softly, which was perceived by the victim with the movement and a sensation of moisture on his back, this with the sole purpose of satisfying his lewd sexual desires. Acts that for this court were totally abusive and with a clear sexual connotation. Added to this, it must be indicated that the defendant sought to carry out these acts clandestinely while the minor </em></span><span style="font-size: 11pt;">(sic)</span><span style="font-size: 11pt;"><em> was asleep in the same bed as the accused</em></span><span style="font-size: 11pt;"><strong><em>, because he was a person of his trust</em></strong></span> <span style="font-size: 11pt;">(…) </span><span style="font-size: 11pt;"><em>the Court considers it proportional and reasonable to impose on the defendant </em></span> <span style="font-size: 11pt;"><em>[Name 001]</em></span><span style="font-size: 11pt;"><em>, the sanction of </em></span><span style="font-size: 11pt;"><strong><em>three years of imprisonment for each crime of sexual abuse against a minor</em></strong></span><span style="font-size: 11pt;"><em>, which has been held as proven </em></span><span style="font-size: 11pt;">(…) </span> <span style="font-size: 11pt;"><em>A penalty that is also imposed considering </em></span><span style="font-size: 11pt;"><strong><em>the personal conditions of the now sentenced person</em></strong></span><span style="font-size: 11pt;"><em>, in such a way that the imposed sanction is </em></span><span style="font-size: 11pt;"><strong><em>proportional to the reproach</em></strong></span><span style="font-size: 11pt;"> <em> that must be made to the accused, adjusting, of course, to the </em></span><span style="font-size: 11pt;"><strong><em>principle of resocialization</em></strong></span> <span style="font-size: 11pt;"><em> implicit in the penalty and the possibility that he can reintegrate into society satisfactorily, once he reflects on his acts and the effects they produced on the victims. The Court considers that the imposed sanction falls within the parameters provided for by Law and maintains due proportion regarding the culpability of the defendant and the gravity of the illicit act.</em></span><span style="font-size: 11pt;">" </span><span style="font-size: 12pt;">(Cf. folio 746 verso and following, the bold text is supplied). Note that the court points out that although it was demonstrated that there was a relationship of trust and that the defendant took advantage of the victim's vulnerability to commit the two acts, none of that was part of the accusation. Therefore, if that situation were taken into account, the principle of correlation already cited would be violated. This chamber cannot but concur </span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">with the reasoning and express its concern not only because the error (to the detriment of the victim) was raised in a poorly prepared prosecutorial document, but because the prosecutor intends to correct it, generating another error (now to the detriment of the accused), which also implies an absolute invisibilization of the principle of objectivity that must guide the actions of the state prosecutorial entity (Article 63 of the Code of Criminal Procedure). Having the condition of a priest or taking advantage of the condition of power does not fit within the aggravating circumstances in force at the date of the events; therefore, the basic type applied (whose punitive range went from 3 to 8 years of imprisonment) was the appropriate one and this makes it necessary to reject the appeal insofar as it seeks to consider the facts as aggravated. Now then, the fact that this was the case does not mean that this condition (of a religious minister or having a position of power over the victim) cannot be weighed within the punitive framework provided for the simple type (from three to eight years of imprisonment). However, although it can be (since, certainly, it is not the same for a stranger to abuse another person as for someone who, by their condition, positions themselves before the community in a position of ethical superiority and spiritual counsel to do so), the court opted to apply the minimum penalty and not increase the lower extreme, indicating that the set penalty (of three years for each act) was proportional to the reproach; it adjusted to the personal conditions of the accused —which it mentioned in various parts of the decision, although not in this specific section, but which can be integrated because the sentence is a unit of meaning— and it referred to the principles of proportionality and resocialization. The appealing prosecutor only outlines three arguments for a greater penalty: </span><span style="font-size: 12pt;"><em>i)</em></span><span style="font-size: 12pt;"> that there was an aggravating circumstance (an issue that has already been ruled out); </span><span style="font-size: 12pt;"><em>ii)</em></span><span style="font-size: 12pt;"> that in closing arguments she requested a higher sanction and </span> <span style="font-size: 12pt;"><em>iii)</em></span><span style="font-size: 12pt;"> that the defendant used his relationship as a priest and the trust he inspired. This chamber considers that the decision on the punitive amount must be upheld. In the first place, it is necessary to indicate that the mere fact that a higher sanction was requested or that there is disagreement with the one imposed is not, in itself, grounds to annul the sanction since there is no (subjective) right of the prosecutorial entity to have a specific penalty imposed. The prosecutor, as a representative of a public law entity such as the Public Prosecutor's Office, is a formal party (not a substantial one insofar as they do not outline a subjective claim of their own but only a representation of collective interests) and, therefore, is not the holder of any right. They can appeal, certainly, if they consider that the adopted decisions are contrary to law, but this is so because the legal system grants them such possibility (principle of bilaterality of remedies) and they must outline the concrete arguments for which they disagree with a judicial decision, two of which have already been said not to be admissible. In the second term, it is necessary to recognize that, in Costa Rican law, the issue of the reasoning of the sanction is one of those incorporating certain levels of discretion that, in order not to become arbitrary, require a greater intellectual effort (complete and derived reasoning; assessment of the guiding principles of resocialization, proportionality, etc.), but this last aspect does not completely eliminate margins of action for decision-making bodies which, as long as they comply with them, can adopt decisions that are not necessarily shared but are within their orbit of discretion. What is meant by this is that there is no absolutely objective parameter to determine why, in a specific case where the punitive ranges stipulated by the legislator are, for example, from one to six months of imprisonment, a penalty of three months is the appropriate one and not one of two or one of four months. There are rules, yes, to indicate whether having exceeded the minimum was right or wrong (whether the objective elements of the type were doubly valued, whether the determination of the standard-case was not followed, whether the arguments used are not acceptable according to the principles that govern us, etc.) but, beyond that, there is some space of non-reviewable discretion. This has been highlighted by this court, with various integrations. For example, in vote number 2013-2483 (L. García, R. </span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">Chinchilla and K. Jiménez) it was stated: "</span><span style="font-size: 11pt;"> <em>It is true that, in this matter, it is not possible to establish 'schedules' for imposing sanctions, which, to that extent, as the dominant doctrine recognizes, have a high dose of discretion. However, so that this does not become arbitrariness, in borderline cases like the present one (where, for example, effective execution depends on the amount chosen; or, in others, where the penalty imposed in a second proceeding determines the revocation of a benefit in a previous proceeding), it is much more demandable that the Court make a greater motivational effort, explaining a kind of 'standard-case' (that described by the legislator and which, for fulfilling the basic objective elements, which cannot be doubly valued, admits the minimum penalty) and objective parameters from which circumstances can be established to increase punitive rigor (for example, the presence of several aggravating circumstances, since the type only requires one) or to decrease it (for example, remorse that can only be used to decrease the reproach). In this last line of argument, consideration of the resocializing purpose of the sanction is essential, which our national legislator (Article 51 of the Penal Code) and conventional legislator (Articles 5 and 8 of the American Convention on Human Rights) theoretically assume.'</em></span> <span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">Likewise, under the name of the Criminal Cassation Court of San José, in vote number 2011-536 (S. Zúñiga, I. Estrada, and A. Chirino) it was even referred to that the standard-case was not enough, but rather one had to adhere to the 'normative-threshold': "</span><span style="font-size: 11pt;"><em>The standard-case would be formed by the highest frequency of the type of criminality in question, that is, the common form of commission, without special specializing conditions. From </em></span><span style="font-size: 12pt;">that</span><span style="font-size: 11pt;"><em> 'standard-case,' conditions are then sought that specialize (aggravate) the frequent or daily form of commission of that type of criminality. The legislator already took into account some type of 'standard-case,' that is evident, and therefore included abstract circumstances that define it and that constitute the form of criminalization; however, it is possible to think that the minimum and maximum extremes that they also included in the criminal incrimination will have to be decided between the cases that are 'daily' or 'frequent' and those that, by their manner of being carried out, exceed the frequent forms of the standard-case. </em></span></span><span style="font-size: 11pt;"><strong><em><span style="font-size: 11pt;">This type of criterion would collide with some difficulties: it depends on the judge's experience in evaluating a certain group of cases; whether they have experience—having judged them in other cases—in the various forms of commission, and, of course, whether their experience is sufficient to establish a basic norm of frequent criminality (standard-case). It is for this reason</span> that Wolfgang Frisch, for example, prefers the normative criterion, and developed it based on the 'normative threshold' (Wolfgang Frisch, 'The direction of the evaluation of facts for the setting of the penalty,' published in the German journal Goltdammer's Archiv of the year 1989, pp. 338 et seq.; 366 et seq.). This normative threshold takes into account the prohibition of double valuation, and does not consider, for example, cases that strictly involve the commission by exhaustively fulfilling the requirements established in the typicalness.</em></strong></span><span style="font-size: 11pt;"><em> These latter cases, then, relate to constellations of cases that correspond to the minimum </em></span><span style="font-size: 12pt;">of the</span><span style="font-size: 11pt;"><em> penalty amount. What </em></span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.58mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>exceeds those forms of commission will tend toward the maximum </em></span> <span style="font-size: 12pt;">of the</span><span style="font-size: 11pt;"><em> reproach.' </em></span><span style="font-size: 12pt;">(The underlines are supplied). And this was reiterated in vote number 346-2010 of that same body. In this matter, if the standard-case is followed, one can agree that the conduct of a religious minister who has a relationship of trust is more serious than that of someone who does not have those conditions. However, both in this theory and in that of the normative threshold, not only must the negative conditions of the active subject be weighed, but also the positive ones, and, in this case, from the evidence produced (which, it is repeated, was weighed in various sections of the sentence although not in the section on the sanction, which does not prevent it from having to be integrated into this decision) it follows that: </span><span style="font-size: 12pt;"><em>i)</em></span><span style="font-size: 12pt;"> the defendant has carried out important social work, seeking financing for people without resources, at social risk, so that they not only obtained their food but also sources of education and monitoring them so they obtained jobs or trades with which they acquired independence (which neither excludes nor justifies the commission of the crimes); </span><span style="font-size: 12pt;"><em>ii)</em></span><span style="font-size: 12pt;"> the accused has provided emotional support for people who are victims of other types of structural violence (domestic violence) to the point that the vast majority of witnesses who appeared emphasized it; </span><span style="font-size: 12pt;"><em>iii)</em></span><span style="font-size: 12pt;"> the accused has no prior convictions. Also, to set the penalty, even starting from the standard-case, the conditions of the crime must be weighed, and although the touchings that were carried out (proven here) against the victim (the only conduct that can be examined, without being able to consider others for which he was acquitted, since doing so would imply violating the principle of res judicata) were serious (to the point of being crimes), they were not of such an intensity and constant periodicity, like others that practice allows one to see and that, without a doubt, have a more profound impact on the emotional and traumatic sequelae of the person harmed by them. Likewise, the age at which the victim was victimized was not, either, as low as others that forensic experience shows and that, to that extent, also generate greater trauma and effects on the psychological apparatus and healthy sexuality. For all the foregoing, weighing all these aspects and ruling out the others, legally inadmissible, on which the appellant bases her claim, the appeal regarding the sanctions for the crimes of sexual abuse against a minor (two crimes) must be rejected. This being the case, the total penalty of six years for these events must remain intact and the appeal in this respect must be rejected. </span><span style="font-size: 12pt;"><strong>B)</strong></span> <span style="font-size: 12pt;"><u>Events to the detriment of </u></span><span style="font-size: 12pt;"><u>[Name 003]</u></span><span style="font-size: 12pt;"><u>.</u></span><span style="font-size: 12pt;">: The proven event regarding this victim was classified as sexual abuse against an adult (Article 162 of the Penal Code) and occurred in October </span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><strong>2013. </strong></span><span style="font-size: 12pt;">The accusation imputed it in the following terms: "</span> <span style="font-size: 11pt;"><em>1- Although the exact date cannot be specified, it was in the month of July </em></span><span style="font-size: 11pt;"><strong><em>of the year two thousand twelve</em></strong></span> <span style="font-size: 11pt;"><em>, the victim </em></span><span style="font-size: 11pt;"><em>[Name 003]</em></span><span style="font-size: 11pt;"><em> took responsibility for the ornamentation of the </em></span> <span style="font-size: 11pt;"><em>[...]</em></span><span style="font-size: 11pt;"><em>, a place where he met the priest </em></span><span style="font-size: 11pt;"><em>[Name 001]</em></span><span style="font-size: 11pt;"><em>, the accused here, thus initiating a relationship of </em></span><span style="font-size: 11pt;"><strong><em>friendship and trust</em></strong></span><span style="font-size: 11pt;"> <em> with him. 2- Although an exact date cannot be specified, it was in the first half of the month of </em></span><span style="font-size: 11pt;"><strong><em>October of the year two thousand thirteen</em></strong></span><span style="font-size: 11pt;"><em>, in the afternoon hours, the accused here </em></span><span style="font-size: 11pt;"> <em>[Name 001]</em></span><span style="font-size: 11pt;"><em>, </em></span><span style="font-size: 11pt;"><strong><em>taking advantage of the relationship of friendship and trust</em></strong></span><span style="font-size: 11pt;"> <em> he had with the victim </em></span><span style="font-size: 11pt;"><em>[Name 003]</em></span><span style="font-size: 11pt;"><em> invited him and the sacristan </em></span> <span style="font-size: 11pt;"><em>[Name 022]</em></span><span style="font-size: 11pt;"><em> to watch a movie in his bedroom, which is inside the Parish House located next to the Church </em></span><span style="font-size: 11pt;">(…) </span><span style="font-size: 11pt;"><em>a request to which the victim consented, so that, without specifying the exact hour, but between two and four in the afternoon, both Mr. </em></span><span style="font-size: 11pt;"><em>[Name 022]</em></span><span style="font-size: 11pt;"><em> and the victim </em></span><span style="font-size: 11pt;"><em>[Name 003]</em></span><span style="font-size: 11pt;"><em> appeared at the bedroom of the defendant here. 3- Once in said room, the accused </em></span><span style="font-size: 11pt;"><em>[Name 001]</em></span><span style="font-size: 11pt;"><em>, taking advantage that the victim </em></span><span style="font-size: 11pt;"><em>[Name 003]</em></span><span style="font-size: 11pt;"><em> was sitting on the bed, with the sole purpose of satisfying his libidinous desires and in an abusive manner, passed his elbow over his leg and then, with his left hand, touched the victim's penis and near his anus, over his clothes, and immediately took out his penis and performed masturbatory movements in front of the victim.</em></span><span style="font-size: 11pt;">" </span><span style="font-size: 12pt;">(the emphasis is supplied).</span></span></p> As of today (</span><span style="font-size: 12pt;"><u>2021</u></span><span style="font-size: 12pt;">) the criminal offense that covers this matter stipulates: </span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 17mm 1.88mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;">&laquo;</span><span style="font-size: 11pt;"><strong><em>Sexual abuse against persons of legal age&nbsp;&nbsp;</em></strong></span> </span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 18mm 0.07mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>Article 162- Sexual abuse against persons of legal age. Whoever abusively performs acts for sexual purposes against a person of legal age, or forces them to perform them on the agent, on themselves, or on another person, provided it does not constitute the crime of rape, shall be punished with a prison sentence of </em></span><span style="font-size: 11pt;"><strong><em>two to four years</em></strong></span><span style="font-size: 11pt;"><em>. </em></span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 17mm 0.05mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>The penalty shall be </em></span><span style="font-size: 11pt;"><strong> <em>three to six years of prison</em></strong></span><span style="font-size: 11pt;"><em> when: </em></span></span></p> <ol style="margin-top: 0mm; margin-bottom: 0mm;"> <li style="list-style-type: none;"> <ol style="margin-top: 0mm; margin-bottom: 0mm;"> <li style="margin-left: -11pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator takes advantage of the vulnerability of the offended person, or the latter is unable to resist, or bodily violence or intimidation is used. </em></span></span></p> </li> <li style="margin-left: -11pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator is an ascendant, descendant, sister, or brother of the victim. </em></span></span></p> </li> <li style="margin-left: -11pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <div style="margin-top: 0pt; margin-bottom: 5pt;"> <p style="line-height: 108%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator is an uncle, aunt, niece, nephew, or cousin of the victim. </em></span></span></p> </div> </li> <li style="margin-left: -11pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator is the stepmother, stepfather, stepsister, or stepbrother of the victim. </em></span></span></p> </li> <li style="margin-left: -11pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator is the guardian or the person in charge of the education, custody, or care of the victim. </em></span></span></p> </li> <li style="margin-left: -11pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 151%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator carries out the conduct against any of the relatives of their spouse or cohabitant, indicated in subsections 3) and 4) above. </em></span><span style="font-size: 11pt;"><strong><em>7) The perpetrator takes advantage of their relationship of trust with the victim</em></strong></span><span style="font-size: 11pt;"><em> or their family, whether or not a kinship relationship exists</em></span><span style="font-size: 11pt;">.&raquo; </span> <span style="font-size: 12pt;">(Emphasis supplied).&nbsp; However, this regulation is in force thanks to the approval of the sole article of the </span><span style="font-size: 12pt;"><em>law to restore the penalty for sexual abuse against persons of legal age</em></span><span style="font-size: 12pt;">, No. 9584 of July 4, </span><span style="font-size: 12pt;"><u>2018</u></span> <span style="font-size: 12pt;">. It has already been said, in the previous section (and now the idea must be taken up and expanded upon) that the legal regulation of sexual crimes in Costa Rica has undergone multiple reforms that make the application of the law difficult and, in many cases, given the erroneous legislative technique used, instead generate decriminalizations. That happened with the issue of sexual abuse against adult persons (of legal age) and without disability. The Penal Code, Law No. 4573 published in La Gaceta of November 15, </span><span style="font-size: 12pt;"><u>1970</u></span><span style="font-size: 12pt;">, originally did not contemplate the specifically regulated conduct. While there was a criminal offense of "dishonest" abuses (article 161) in which the age of the victim was not established, it did require that one of the circumstances of rape provided for in numeral 156 </span><span style="font-size: 12pt;"><em>ibidem</em></span><span style="font-size: 12pt;"> occurred (among which being under 12 years old, being deprived of reason, unable to resist, or suffering bodily violence or intimidation were mentioned). Also provided for, in article 162, was the crime of statutory rape (estupro), which implied "consensual" relations at ages where consent was admissible and which, therefore, are unrelated to the factual scenario that concerns us. Subsequently, article 1 of Law No. 7899 of August 3, </span><span style="font-size: 12pt;"><u>1999</u></span><span style="font-size: 12pt;"> introduced, under article 162 of the Penal Code, sexual abuse against persons of legal age, drafting a text from which the Constitutional Chamber (Sala Constitucional), through rulings number </span></span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-134842"><span style="color: #0563c1; font-family: Arial;"><span style="font-size: 12pt;"><u>6304-2000</u></span></span><u> </u></a><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">and number </span></span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-244037"> <span style="color: #0563c1; font-family: Arial;"><span style="font-size: 12pt;"><u>10140-2001</u></span></span> <u> </u></a><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">declared the penalties unconstitutional, rendering the numeral inapplicable, to the extent that the sanction only stipulated a minimum and maximum, but did not indicate what its nature was: prison, fine, house arrest? To correct the error, Law No. 8002 of June 8, </span><span style="font-size: 12pt;"><u>2000</u></span><span style="font-size: 12pt;"> was enacted. Another additional reform was made through article 1 of Law No. 8590 (called "</span><span style="font-size: 12pt;"><em>Law to Strengthen the Fight Against the Sexual Exploitation of Minors through the reform and addition of various articles to the Penal Code, Law No. 4573, and reform of various articles of the Code of Criminal Procedure, Law No. 7594"</em></span></span> <span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">) of July 18, </span><span style="font-size: 12pt;"><strong><u>2007</u></strong></span> <span style="font-size: 12pt;"> and the last one in </span><span style="font-size: 12pt;"><strong><u>2018</u></strong></span><span style="font-size: 12pt;"> (</span> <span style="font-size: 12pt;"><em>law to restore the penalty for sexual abuse against persons of legal age</em></span><span style="font-size: 12pt;">, No. 9584 of July 4), which is the one currently in force but was not at the time of the act (article 11 of the Penal Code). Since the accredited event is located during </span><span style="font-size: 12pt;"><strong><u>2013</u></strong></span><span style="font-size: 12pt;">, the first regulations are not of interest, only those starting from the year 2010, at which time the text stipulated: </span></span></p> </li> </ol> </li> </ol> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 17mm 1.86mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">&laquo;</span><span style="font-size: 11pt;"><strong><em>Sexual abuse against persons of legal age&nbsp;&nbsp;</em></strong></span></span></p> <p style="text-indent: 0mm; line-height: 149%; margin: 0.00mm 17mm 0.05mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>Article 162.-&nbsp;&nbsp; </em></span><span style="font-size: 11pt;"> <strong><em>If the abuses described in the previous article</em></strong></span><span style="font-size: 11pt;"><em> are committed against a person of legal age, the penalty shall be </em></span><span style="font-size: 11pt;"><strong><em>two to four years of prison.</em></strong></span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 17mm 1.86mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>The penalty shall be </em></span><span style="font-size: 11pt;"><strong> <em>three to six years of prison</em></strong></span><span style="font-size: 11pt;"><em> when:&nbsp;&nbsp;</em></span></span></p> <ol style="margin-top: 0mm; margin-bottom: 0mm;"> <li style="list-style-type: none;"> <ol style="margin-top: 0mm; margin-bottom: 0mm;"> <li style="margin-left: -11pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator takes advantage of the vulnerability of the offended person, or the latter is unable to resist, or bodily violence or intimidation is used.</em></span></span></p> </li> <li style="margin-left: -11pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator is an ascendant, descendant, sister, or brother of the victim.</em></span></span></p> </li> <li style="margin-left: -11pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator is an uncle, aunt, niece, nephew, or cousin of the victim.</em></span></span> <span style="color: #010101; font-family: Arial;"> <span style="font-size: 11pt;"><em>4)&nbsp;&nbsp;&nbsp;&nbsp; The perpetrator is the stepmother, stepfather, stepsister, or stepbrother of the victim.</em></span></span></p> </li> </ol> </li> </ol> <ol style="margin-top: 0mm; margin-bottom: 0mm;" start="5"> <li style="list-style-type: none;"> <ol style="margin-top: 0mm; margin-bottom: 0mm;" start="5"> <li style="margin-left: -11pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator is the guardian or the person in charge of the education, custody, or care of the victim.</em></span></span></p> </li> <li style="margin-left: -11pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; font-decoration: Normal;"><em>The perpetrator carries out the conduct against any of the relatives of their spouse or cohabitant, indicated in subsections 3) and 4) above.</em></span></span></p> </li> </ol> </li> </ol> <ol style="margin-top: 0mm; margin-bottom: 0mm;" start="7"> <li style="list-style-type: none;"> <ol style="margin-top: 0mm; margin-bottom: 0mm;" start="7"> <li style="margin-left: -11pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 150%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Bold; font-style: Italic; font-decoration: Normal;"><strong><em>The perpetrator takes advantage of their relationship of trust with the victim </em></strong></span><span style="font-size: 11pt;"><em>or their family, whether or not a kinship relationship exists.</em></span><span style="font-size: 12pt;">&raquo; (Emphasis supplied).</span><span style="font-size: 11pt;"><em>&nbsp;</em></span></span></p> </li> </ol> </li> </ol> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 0mm 0.07mm 0mm;" align="justify"><span class="example1 304897" style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">&nbsp;After that, there is only one law (the 2018 one, not applicable to the case due to the date of the acts). Why was it introduced? As its name indicates, "to re-establish the penalty" and this was so because if one observes the first part of numeral 162 just cited (that is, through the 2007 reform, the article began by saying "</span><span style="font-size: 12pt;"><em>If the abuses described in the previous article</em></span> <span style="font-size: 12pt;">"). Prior to many of those changes, as is logical to think following the numerical sequence, before article 162 was article 161, which described the prohibited conduct (sexual abuse against minors). However, as a result of legislative activism, articles with a "bis" were added. That happened between 162 and 161, such that a 161 bis was placed, thereby changing the content of the criminal offense of sexual abuse against persons of legal age and, in doing so, the conduct was left without sanction. <span class="304877" style="font-size: 12pt;">This is better outlined in a previous pronouncement by this Chamber, ruling number 2020-1995 issued with a partially different composition from this one (R. Chinchilla, P. Vargas and A. Herrera with a note from the former) in which, furthermore, the reasons are mentioned why, despite there being an apparent decriminalization of the conduct, it cannot be applied to this case. Judges Chinchilla and Vargas expressed their criterion and that of various compositions of this Chamber, giving a detailed account of what happened (a criterion that is endorsed by the entirety of this composition): &laquo;</span></span><span class="304877" style="font-size: 11pt;"><em>IV. Note from Judges Chinchilla Calderón and Vargas </em></span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 0mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span class="304877" style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em><span class="example1 304897" style="font-size: 11pt;">González: The undersigned also consider it important to indicate that the accredited acts date</span> from August 22, 2017. The current article 162 of the Penal Code, which contemplates sexual abuse against persons of legal age, was reformed by Law No. 9584 of July 4, 2018, legislation which was not in vain called "Reform of article 162 of Law No. 4573, Penal Code </em></span><span style="font-size: 11pt;">(&hellip;)</span> </span><span style="font-size: 11pt;"><em><span class="304877" style="font-size: 11pt;"> to restore the penalty for sexual abuse against persons of legal age." This was necessary because</span> before</em></span><span style="font-size: 11pt;"><strong><em>, through Law No. 8874 of September 24, 2010, a modification was made to the criminal law that had the unforeseen effect of leaving this criminal offense without content</em></strong></span><span style="font-size: 11pt;"><em> since the wording prior to the current one referred to "The abuses described in the previous article" and the previous numeral that gave it content was 161 of the Penal Code. But then, </em></span><span style="font-size: 11pt;"><strong><em>with that law, a numeral 161 bis was introduced, which caused the reference to the "previous article" to refer to that 161 bis, which did not contemplate any criminal conduct</em></strong></span><span style="font-size: 11pt;"><em>. That is, </em></span><span style="font-size: 11pt;"><strong><em><u>between September 24, 2010, and July 4, 2018 (a period during which</u></em></strong></span> <span style="font-size: 11pt;"><strong><em><u>the acts of the present case are located), due to a legislative error, that conduct could</u></em></strong></span> <span style="font-size: 11pt;"><strong><em><u>not be sanctioned, at least not if the principle of legality is respected, as must be done</u></em></strong></span> <span style="font-size: 11pt;"><strong><em><u>in a State of Law, which implies the use of grammatical interpretation as the most</u></em></strong></span> <span style="font-size: 11pt;"><strong><em><u>restrictive one</u></em></strong></span> <span style="font-size: 11pt;"><em>. In this regard, this same Chamber, with different compositions, through ruling number 2018-1065 of August 10, 2018 (A. Solís, R. Chinchilla, and R. Obando) stated: &laquo;(B) Regarding the classification of the crime of sexual abuse against a person of legal age, this Chamber, with a partially different composition (A. Solís, R. Chinchilla, and J. Campos), has said: \"(...) Through resolutions number </em></span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 0mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>2014-414 (Note from Judge Chinchilla), 2014-1367 (Solís, Campos, and Rivera), 2015-171 (Campos, Chinchilla, and García), and 2015-205 (Dissenting vote of Judge Solís), those of us who make up this Appeals Chamber have pronounced </em></span><span style="font-size: 11pt;"><strong><em>regarding the decriminalization of sexual abuse against a person of legal age, because numeral 162 of the Penal Code sanctioned as such the actions described in the "previous article"; but this one - after the reform that introduced article 161 bis - by referring to the norm that preceded it, no longer sanctioned any conduct (as numeral 161 of the Penal Code did describe it), since 161 bis did not describe actions but rather had common provisions regarding the crimes that were located prior to it.</em></strong></span><span style="font-size: 11pt;"><em> Thus, by virtue of the principle of legality, we considered that </em></span><span style="font-size: 11pt;"><strong><em>it was not feasible to make extensive interpretations in order to maintain the validity of a crime that had been left without any content regarding the action that constituted it, concluding that sexual abuse against a person of legal age had been decriminalized due to a legislative error. However, the Constitutional Chamber, subsequent to these decisions, through resolution 2015-2675, of 9:05 a.m. on February 25, 2015, as a result of an action of unconstitutionality filed against articles 161 and 162 of the Penal Code, indicated</em></strong></span><span style="font-size: 11pt;"><em> the following: \"(...) in the case of article 162 of the Penal Code, the Chamber does not deem the principle of legality and specificity in criminal matters to be violated, taking into account that the conduct that is sanctioned has been clearly determined in article 161 of the Penal Code. In this vein, although the wording of article 162 of the Penal Code is not very felicitous, it is not considered that it harms the aforementioned principles, given that the Legislator, with the approval of Law No. 8874, of September 24, 2010, and with the introduction of article 161 bis, at no time intended to decriminalize the sanction provided for in article 162 of the Penal Code. Quite the contrary, it is evident from its wording that it refers to article 161 of the Penal Code, considering that the allusion to 'the abuses described' only makes sense if linked to that legal precept, that is, article 161 of the Penal Code, which is what systematically and historically gives it its rationale. In this vein, the Chamber concludes that the law, in its current terms, is sufficiently clear that the citizen has the assurance of knowing what the actions sanctioned by article 162 are, with its remission to article 161 of the Penal Code. Without justifying the lack of rigor or legislative technique in the present case - which could well have added the norm with greater skill or ability -, the fact is that the Latin numeral adverb bis means twice and added to any whole number indicates that said number has been repeated a second time (thus, Dictionary of the Royal Spanish Academy, 21st edition, Madrid, 1992, p. 207), in such a way that, </em></span><span style="font-size: 11pt;"><strong><em>it can also be understood that article 162 refers to the integer 161 (which came to be complemented by 161 bis), insofar as it is evident that Law No. 8874 has not expressly or tacitly repealed the crime of 'Sexual abuse against persons of legal age' provided for in article 162</em></strong></span><span style="font-size: 11pt;"><em>. In sum, what happens is that a new article was added that literarily came to be located immediately before 162, but which did not repeal or modify 161, which continues to be in force and is the one to which the former (article 162) clearly refers, to allude to the conduct it classifies, with the variant that the victim is a person of legal age.\" Taking the above into account, </em></span><span style="font-size: 11pt;"><strong><em><u>although we do not share the criterion issued by the Constitutional Court, we must</u></em></strong></span> <span style="font-size: 11pt;"><strong><em><u>apply it, as ordered in the transcribed resolution, in attention to what is</u></em></strong></span> <span style="font-size: 11pt;"> <strong><em><u>prescribed in article 13 of the Law of Constitutional Jurisdiction, which</u></em></strong></span> <span style="font-size: 11pt;"> <strong><em><u>states that: 'The jurisprudence and precedents of the constitutional jurisdiction</u></em></strong></span> <span style="font-size: 11pt;"> <strong><em><u>are binding erga omnes, except for itself'</u></em></strong></span><span style="font-size: 11pt;"><em>\" (Appeals Court of Criminal Sentencing of the Second Judicial Circuit of San José, resolution number 1273, of 10:30 a.m. on September 8, 2016. In the same sense and from the same Chamber, resolutions number 1521, of 9:45 a.m. on October 31, 2016, and 1029, of 11:00 a.m. on August 3, 2018). This criterion is maintained by those who sign this decision, and it makes more sense because, through Law number 9584 published in Supplement number 136 to La Gaceta number 137, of July 30, 2018, article 162 of the Penal Code was modified and its content indicates: 'Whoever abusively performs acts for sexual purposes against a person of legal age, or forces them to perform them on the agent, on themselves, or on another person, provided it does not constitute the crime of rape, shall be punished with a prison sentence of two to four years.' However, this provision could not be applied to these events, since it is a later norm, which would infringe the principle of non-retroactivity of criminal law, which is contemplated in article 34 of the Political Constitution when it states that: 'No law shall be given retroactive effect to the detriment of any person, or their acquired patrimonial rights or consolidated legal situations'; furthermore, numeral 11 of the Penal Code establishes that 'Punishable acts shall be judged in accordance with the laws in force at the time of their commission,' the exception being the existence of a more favorable subsequent law, but this is not the case presented in this matter. Notwithstanding the aforesaid, as pointed out supra, </em></span><span style="font-size: 11pt;"><strong><em><u>due to the existence of a binding resolution issued by the Constitutional</u></em></strong></span> <span style="font-size: 11pt;"><strong><em><u>Court (article 13 of the Law of Constitutional Jurisdiction that upheld the</u></em></strong></span> <span style="font-size: 11pt;"> <strong><em><u>validity of the conduct before that reform), this Chamber must apply article</u></em></strong></span> <span style="font-size: 11pt;"> <strong><em><u>162 of the Penal Code (in its wording in force for the date of the acts),</u></em></strong></span> <span style="font-size: 11pt;"><strong><em><u>establishing that the description of the typical conduct is in numeral 161 of that</u></em></strong></span> <span style="font-size: 11pt;"> <strong><em><u>same legal body</u></em></strong></span><span style="font-size: 11pt;"><em>.&raquo; (Emphasis supplied).</em></span></span></p> This criterion is shared by the undersigned, who therefore consider that the conduct </em></span><span style=\"font-size: 11pt;\">(…)</span><span style=\"font-size: 11pt;\"><em> was atypical at the time of the facts, that is, due to the legislative error referred to above, at that time the preceding criminal type could not be used (which referred to a previous article to give it content which was modified when the bis was introduced and that content was eliminated) nor could the current one be used (since that would imply a retroactive application of criminal law, which is not constitutionally or conventionally possible). However, as there is a binding vote of the constitutional body that must be applied, it must be complied with, and therefore the undersigned persons save our responsibility for the manner in which said conviction is rendered.</em></span><span style=\"font-size: 12pt;\">» (Emphasis supplied). In summary, for this court, during the period from September 24, 2010 (when Law No. 8874 was issued, creating Article 161 bis of the Penal Code) and July 4, 2018 (when Law No. 9584 of July 4 was issued to restore the criminality of sexual abuse against a person of legal age), the cited conduct was decriminalized, and since it is during this period that the facts of this case are located (2013), it would be proper to exonerate the accused from criminal liability, according to the criterion of this judicial body. However, as the Constitutional Chamber held a different position through vote number 2015-2675, of 9:05 a.m. on February 25, 2015, issued in an express action of unconstitutionality on that point, and as its jurisprudence </span></span></p> <p style=\"text-indent: 0mm; line-height: 151%; margin: 0.00mm 0mm 0.07mm 0mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 12pt;\">is binding </span><span style=\"font-size: 12pt;\"><em>erga omnes</em></span><span style=\"font-size: 12pt;\"> (Article 13 of the Law of Constitutional Jurisdiction), this Chamber cannot but adhere to this pronouncement, with the caveat, however, that if any liability for the Costa Rican State should derive from this, it falls on the cited body and not on the undersigned, whose personal criterion differs from what was resolved by the constitutional court, but the latter is mandatory for us to the point that failing to observe it would generate liability for us. In addition to the foregoing, it is important to highlight that in the last two laws (the one in force at the date of the facts whose conduct was not specified and the subsequent one, valid today and enacted to restore criminality), the punitive framework of the base criminal type (two to four years of imprisonment) and that of the aggravated type (three to six years of imprisonment) is the same, and the aggravating circumstances remain unmodified. That is, the last one was not a subsequent law more beneficial to the accused person. The court, when setting the penalty, imposed two years of imprisonment for the sexual abuse against a person of legal age. This is recorded in the issuance of the operative part, although later, when the comprehensive judgment is issued, there are some errors in this regard. The reasoning on the matter is sparse and must be read in conjunction with the arguments expressed for the other victim (where it was emphasized that the prosecuting entity did not adequately charge the aggravating circumstances and that, therefore, they could not be considered). However, if one observes accused fact 2, it does state that the defendant took advantage of his relationship of trust; in fact 1, it describes since when they knew each other and how such relationship had originated; and in the aggravating circumstance stipulated in subsection 7, a relationship of trust is indeed provided for as an aggravating factor (for a minimum penalty of three years). Probably, the court realized this when issuing the comprehensive judgment (when the operative part, which could not be changed, was already issued) and this explains the following error: “</span><span style=\"font-size: 11pt;\"><em>Likewise, one crime of </em></span><span style=\"font-size: 11pt;\"> <strong><em>sexual abuse against a person of legal age, in its simple form due to </em></strong></span><span style=\"font-size: 11pt;\"><strong><em><u>problems of accusation regarding</u></em></strong></span> <span style=\"font-size: 11pt;\"><strong><em><u>the aggravating circumstances</u></em></strong></span><span style=\"font-size: 11pt;\"><strong><em> of the type</em></strong></span><span style=\"font-size: 11pt;\"><em>, has been deemed accredited. The foregoing, for acts committed to the detriment of </em></span><span style=\"font-size: 11pt;\"><em>[Name 003]</em></span><span style=\"font-size: 11pt;\"><em>, establishing that the accused, abusively and unexpectedly, touched the penis and anus of the aggrieved party </em></span><span style=\"font-size: 11pt;\"><strong><em>over his clothing</em></strong></span><span style=\"font-size: 11pt;\"> <em>, thereby injuring the protected legal interest, that is, his sexual integrity </em></span><span style=\"font-size: 11pt;\">(…) </span><span style=\"font-size: 11pt;\"> <em>the Court considers it proportional and reasonable to impose on the accused </em></span><span style=\"font-size: 11pt;\"><em>[Name 001]</em></span><span style=\"font-size: 11pt;\"><em>, the penalty of </em></span><span style=\"font-size: 11pt;\"><em><u>three years</u></em></span> <span style=\"font-size: 11pt;\"><em><u>of imprisonment</u></em></span><span style=\"font-size: 11pt;\"><em> for each crime of sexual abuse against a minor, which has been deemed accredited, as well as </em></span><span style=\"font-size: 11pt;\"><strong><em><u>three years</u></em></strong></span><span style=\"font-size: 11pt;\"> <strong><em> of imprisonment for the crime of Sexual Abuse against a person of legal age that was deemed accredited, the </em></strong></span><span style=\"font-size: 11pt;\"><strong><em><u>total penalty to be imposed being 8 years</u></em></strong></span><span style=\"font-size: 11pt;\"><strong><em> of imprisonment.</em></strong></span><span style=\"font-size: 11pt;\">”</span> <span style=\"font-size: 12pt;\">(Emphasis supplied). Note that if three years were imposed for each crime and there were three crimes in total (two different victims), simple arithmetic makes the sum of the amounts result in nine years of imprisonment in total, but the judgment alludes to a global amount of eight. If one observes the operative part on folios 697 and 748 verso, it will be noted that a penalty of two years had been set for this event, which is the minimum for the base criminal type, without the aggravating circumstance, which is what the court intended to do by excluding the aggravating circumstance without further justification. Therefore, for this reason and not for the others set forth by the appellant (which, had that error not existed, could have been addressed in a manner similar to what was said for the other affected party), only on this issue (simple or aggravated legal classification? and amount of penalty) must the claim be upheld, the judgment annulled solely regarding the crime of sexual abuse against a person of legal age to the detriment of </span><span style=\"font-size: 12pt;\">[Name 003]</span><span style=\"font-size: 12pt;\">. Note that this error cannot be corrected by this court because if it were considered that it was a simple error in sums and that the </span><span style=\"font-size: 12pt;\"><em>a quo</em></span><span style=\"font-size: 12pt;\"> body intended to set the minimum amounts of the aggravated type (three years, for a total of nine and not eight as stated), it clashes with the court's argument that the accusation had not described any aggravating circumstance when that did occur and that it would use the simple type, which prevents rectifying the issue in that manner. If, on the other hand, an attempt were made to correct the error by choosing the minimum penalty amount of the base type (two years, for a correct sum of eight, which is what was imposed in the operative part), the penalty amount of the simple type would be chosen and an argument of the lower court (that there was no adequate accusation of the aggravating circumstance) would be endorsed when, in this case, it did occur, and this would make the decision contradictory. For the foregoing reasons, said nullity must be decreed and a remand ordered, at which time, in addition, the parties, if they deem it appropriate, may redirect the discussion on the eventual decriminalization referred to due to the legislative changes to the corresponding constitutional channels. </span></span></p> <p style=\"text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 12pt;\"><strong> VII.- On the validity of the criminal action, the regulatory changes that occurred, and their applicability to the case.</strong></span><span style=\"font-size: 12pt;\"> Having dismissed the complaints related to the determination of the fact, the assessment of the evidence, and the correct legal-criminal classification of the proven facts, it is necessary to analyze the validity of the criminal action in each event. This analysis is important because, pursuant to the provisions of Articles 42, 459, and 462 of the Criminal Procedure Code, this court is obliged to review, even ex officio (since no one raises it in this matter), any violation of due process that may occur, in order to guarantee the right to appeal stipulated in Article 8.2.h of the American Convention on Human Rights. That the trial be conducted only while the criminal action is in force is part of this principle of due process (see </span></span><a href=\"https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-150108\"><span style=\"color: #0563c1; font-family: Arial;\"><span style=\"font-size: 12pt;\"><u>vote number 2216-2001</u></span></span><u> </u></a> <span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 12pt;\">of the Constitutional Chamber). If to this is added that the accredited events are quite distant in time: 2005 (crime of sexual abuse against a minor) and 2013 (sexual abuse against a person of legal age), and because multiple reforms have been made to both the substantive legislation (which establishes the penalty ranges from which the statute of limitations periods are calculated) and the procedural legislation (which has defined from what moment to start, interrupt, or suspend the calculations of the statute of limitations for the criminal action), a thorough scrutiny of the matter is essential to determine whether, both with respect to the facts for which the conviction that persists according to what has been stated was given, as well as for that for which remand is ordered due to the penalty amount. The first thing that must be done is to establish the applicable law (substantive and procedural) regarding the statute of limitations for each of these events. </span><span style=\"font-size: 12pt;\"><strong>(A.1)</strong></span> <span style=\"font-size: 12pt;\"><u>Facts to the detriment of </u></span><span style=\"font-size: 12pt;\"><u>[Name 005]</u></span><span style=\"font-size: 12pt;\"><u>. (minor)</u></span><span style=\"font-size: 12pt;\">: These events to the detriment of </span><span style=\"font-size: 12pt;\">[Name 005]</span><span style=\"font-size: 12pt;\">. are located when he was a minor (16 years old) and during the year 2005, a date on which the applicable criminal type (for the considerations set forth in Considerando V.A, to which reference is made) was the following: </span></span></p> <div style=\"text-indent: 0mm; line-height: 158%; margin: 0.00mm 5mm 0.00mm 10mm;\" align=\"left\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 12pt;\">«</span><span style=\"font-size: 11pt;\"><strong>Sexual Abuse against Minors and Incapacitated Persons</strong></span> <span style=\"font-size: 11pt;\"><em>ARTICLE 161.- </em></span></span></div> <p style=\"text-indent: 0mm; line-height: 154%; margin: 0.00mm 18mm 0.07mm 10mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 11pt;\"><em>Whoever abusively performs acts with sexual purposes against a minor or incapacitated person or forces them to perform them on the agent, on themselves, or on another person, provided it does not constitute the crime of rape, shall be punished with a penalty </em></span><span style=\"font-size: 11pt;\"><strong><em>of imprisonment of three to eight years</em></strong></span><span style=\"font-size: 11pt;\"><em>.</em></span></span></p> <p style=\"text-indent: 0mm; line-height: 108%; margin: 0.00mm 18mm 0.07mm 10mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 11pt;\"><em>The penalty shall be four to ten years in the following cases: </em></span></span></p> <ol style=\"margin-top: 0mm; margin-bottom: 0mm;\"> <li style=\"margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;\"> <div style=\"margin-top: 0pt; margin-bottom: 5pt;\"> <p style=\"line-height: 108%;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;\"><em>When the offended person is under twelve years of age. </em></span></span></p> </div> </li> <li style=\"margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;\"> <p style=\"line-height: 154%;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;\"><em>When the perpetrator takes advantage of the vulnerability of the offended person or the latter is incapacitated to resist, or when corporal violence or intimidation is used. </em></span></span></p> </li> <li style=\"margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;\"> <p style=\"line-height: 154%;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;\"><em>When the perpetrator is an ascendant, descendant, sibling by consanguinity or affinity, stepfather or stepmother, spouse or person linked in an analogous cohabitation relationship, guardian or person in charge of the education, guardianship, or custody of the victim. </em></span></span></p> </li> <li style=\"margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;\"> <p style=\"line-height: 154%;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;\"><em>When the perpetrator takes advantage of his relationship of trust with the victim or his family, whether or not a kinship relationship exists.</em></span></span><span style=\"color: #010101; font-family: Arial; font-size: large;\"><span style=\"font-size: 14pt;\">» </span></span></p> </li> </ol> <p style=\"text-indent: 12mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 12pt;\">Starting from the first paragraph (simple type applied by the </span> <span style=\"font-size: 12pt;\"><em>a quo</em></span><span style=\"font-size: 12pt;\">), the amount of imprisonment of </span><span style=\"font-size: 12pt;\"><strong><u>eight years</u></strong></span><span style=\"font-size: 12pt;\"> was the maximum possible and generated the limit of the statute of limitations period (Article 31, subsection 1, of the Criminal Procedure Code) which, reduced by half due to the start of the process and the existence of interrupting acts (and without prejudice to what will be said about the way to start the calculation because the victim was a minor at the date of the facts), would make </span><span style=\"font-size: 12pt;\"><strong><u>four years</u></strong></span><span style=\"font-size: 12pt;\">. Now, regarding the rules on the statute of limitations for the criminal action, it must be noted that this case presents significant complexity, as it involves various legal changes: Law No. 7594 in force since 1998 (issuance of the original Criminal Procedure Code) and the reforms by Laws No. 8590 of 2007, 9057 of 2012, 9685 of 2019, and 9826 of 2020. In the </span><span style=\"font-size: 12pt;\"><strong><u>first version of the articles</u></strong></span><span style=\"font-size: 12pt;\">, from the effective date of the Criminal Procedure Code in 1998 (Law No. 7594) until July 18, 2007, the procedural legislation did not stipulate any distinction if the facts occurred to the detriment of minors or if they were sexual crimes; rather, the statute of limitations rule was given only by the passage of the maximum penalty time, reduced or not by half depending on whether suspensive or interrupting acts occurred. The first differentiated regulation for sexual crimes and to the detriment of children operated precisely through the </span><span style=\"font-size: 12pt;\"><strong><u>second version of</u></strong></span> <span style=\"font-size: 12pt;\"><strong><u>the rule</u></strong></span><span style=\"font-size: 12pt;\">, Law No. 8590 of July 18, 2007, which introduced a reform to subsection a) of Article 31 of the Criminal Procedure Code so that it would read as follows: </span></span></p> <p style=\"text-indent: 0mm; line-height: 108%; margin: 0.00mm 17mm 0.05mm 10mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 12pt;\">“</span><span style=\"font-size: 11pt;\"><strong><em>If criminal prosecution has not been initiated</em></strong></span> <span style=\"font-size: 11pt;\"><em>, the action shall prescribe:</em></span> </span></p> <p style=\"text-indent: 0mm; line-height: 149%; margin: 0.00mm 17mm 0.05mm 10mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 11pt;\"><em>a) After a period equal to the maximum of the penalty has elapsed, in crimes punishable by imprisonment; it may not exceed ten years nor be less than three, </em></span><span style=\"font-size: 11pt;\"><strong><em>except in </em></strong></span><span style=\"font-size: 11pt;\"><strong><em><u>sexual</u></em></strong></span><span style=\"font-size: 11pt;\"><strong><em> crimes committed against minors, in which case the statute of limitations shall begin to run from the time the victim has reached the age of majority</em></strong></span><span style=\"font-size: 11pt;\"><em>.</em></span><span style=\"font-size: 12pt;\">”</span> <span style=\"font-size: 12pt;\">(Emphasis supplied). </span></span></p> <p style=\"text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 12pt;\"> As the facts were deemed accredited in 2005 from the first day of the first month of that year (since the accusation does not specify a date in 2005, so, in consideration of the most favorable facts for the defendant —Article 9 of the Criminal Procedure Code—, one must assume it occurred at the beginning of that year) until Law No. 8590 entered into force on </span><span style=\"font-size: 12pt;\"><strong><u>July 18, 2007</u></strong></span><span style=\"font-size: 12pt;\">, </span><span style=\"font-size: 12pt;\"><strong>two years, six months, and 18 days</strong></span><span style=\"font-size: 12pt;\"> elapsed. Now, this law is procedural and of public order and, therefore, in the binding criterion of the Constitutional Chamber (see votes number 4397-99 and </span></span><a href=\"https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-131936\"> <span style=\"color: #0563c1; font-family: Arial;\"><span style=\"font-size: 12pt;\"><u>11517-2000</u></span></span><span style=\"font-family: Arial;\"><span style=\"font-size: 12pt;\"> <u>)</u></span></span></a><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 12pt;\">, it governs from the date of its effectiveness, even for pending proceedings. Thus, as of July 18, 2007, the rules for judging this type of facts changed, but that applies to this case if and only if, by then: </span><span style=\"font-size: 12pt;\"><em>i)</em></span><span style=\"font-size: 12pt;\"> this victim had still been a minor because, on the one hand, retroactive effect could not be given to the law to the detriment of the defendant (Article 34 of the Constitution) and, on the other, if he were not a minor, the factual assumption contemplated in that regulation would no longer be met and </span><span style=\"font-size: 12pt;\"><em>ii)</em></span><span style=\"font-size: 12pt;\"> provided that the process had not started because, if it had, the suspensive condition that heads the numeral would not occur nor would the purpose intended by the rule be fulfilled, which is that because the affected person does not have emotional maturity or the efficient representation of a third party, the facts to his detriment go unpunished. Since </span><span style=\"font-size: 12pt;\">[Name 005]</span><span style=\"font-size: 12pt;\">. was born on September 3, 1988, as was proven (see accredited facts of the trial judgment), he turned 18 on </span><span style=\"font-size: 12pt;\"><strong><u>September 3, 2006</u></strong></span><span style=\"font-size: 12pt;\">. That is, by the date on which the new law entered into force (No. 8590 on </span><span style=\"font-size: 12pt;\"><strong><u>July 18, 2007</u></strong></span> <span style=\"font-size: 12pt;\">), the victim had already reached the age of majority, for which reason that law was not applicable to his situation and that eight-year period (of which</span><span style=\"font-size: 12pt;\"><strong> two years, six months, and 18 days</strong></span><span style=\"font-size: 12pt;\"> had already elapsed)</span> <span style=\"font-size: 12pt;\">continued its course, pending whether it would be calculated reduced by half when a suspensive or interrupting act occurred. Now, the panorama does not conclude there. By Law No. 9057 of </span><span style=\"font-size: 12pt;\"><strong><u>July 23, 2012</u></strong></span><span style=\"font-size: 12pt;\">, the cited numeral was </span><span style=\"font-size: 12pt;\"><strong><u>reformed for the third time</u></strong></span><span style=\"font-size: 12pt;\"> so that it would read thus: </span></span></p> <p style=\"text-indent: 0mm; line-height: 108%; margin: 0.00mm 17mm 1.88mm 10mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 12pt;\">“</span><span style=\"font-size: 11pt;\"><strong><em>If criminal prosecution has not been initiated</em></strong></span> <span style=\"font-size: 11pt;\"><em>, the action shall prescribe: </em></span></span></p> <p style=\"text-indent: 0mm; line-height: 154%; margin: 0.00mm 18mm 0.07mm 10mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 11pt;\"><em>a) After a period equal to the maximum of the penalty has elapsed, in crimes punishable by imprisonment, it may not exceed ten years nor be less than three, </em></span><span style=\"font-size: 11pt;\"><strong><em>except in </em></strong></span><span style=\"font-size: 11pt;\"><strong><em><u>crimes</u></em></strong></span><span style=\"font-size: 11pt;\"><strong><em> committed against minors</em></strong></span><span style=\"font-size: 11pt;\"><em>, in which case the statute of limitations shall begin to run from the time the victim has reached the age of majority.</em></span><span style=\"font-size: 12pt;\">”</span> <span style=\"font-size: 12pt;\">(Emphasis supplied). </span></span></p> <p style=\"text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 12pt;\"> As can be seen, what it did was eliminate the reference only to sexual crimes against minors and extend it to all types of crimes against said population. Since this matter, due to the type of crime (though not due to the victim's age), was already included in the first list, the referred change has no major significance here. A</span> <span style=\"font-size: 12pt;\"> <strong><u>fourth modification</u></strong></span> <span style=\"font-size: 12pt;\">to that provision occurred in 2019, through Law No. 9685 of </span><span style=\"font-size: 12pt;\"><strong><u>May 21,</u></strong></span> <span style=\"font-size: 12pt;\"><strong><u>2019</u></strong></span><span style=\"font-size: 12pt;\">, called “</span><span style=\"font-size: 12pt;\"><em>Law on the Right to Time, reforms the Penal Code to extend the statute of limitations period for criminal action in cases of sexual crimes against minors or persons without volitional or cognitive capacity</em></span><span style=\"font-size: 12pt;\">”. As a result of this regulation, the cited Article 31 of the Criminal Procedure Code had to be read in this way: </span></span></p> <p style=\"text-indent: 0mm; line-height: 154%; margin: 0.00mm 18mm 0.07mm 10mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 12pt;\">«</span><span style=\"font-size: 11pt;\"><em>ARTICLE 31.- Statute of limitations periods for criminal action. </em></span> <span style=\"font-size: 11pt;\"><strong><em><u>If</u></em></strong></span> <span style=\"font-size: 11pt;\"><strong><em><u>criminal prosecution has not been initiated</u></em></strong></span> <span style=\"font-size: 11pt;\"><em>, the action shall prescribe: </em></span></span></p> <ol style=\"margin-top: 0mm; margin-bottom: 0mm; list-style-type: lower-alpha;\" type=\"a\"> <li style=\"margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;\"> <p style=\"line-height: 154%;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;\"><em>After a period equal to the maximum of the penalty has elapsed, in crimes punishable by imprisonment, it may not exceed ten years nor be less than three, except in crimes committed against minors, in which case the statute of limitations </em></span><span style=\"font-size: 11pt;\"><strong><em>shall begin to run from the time the victim has reached the age of majority</em></strong></span><span style=\"font-size: 11pt;\"><em>. </em></span></span></p> </li> </ol> <div style=\"text-indent: 0mm; line-height: 150%; margin: 0.00mm 18mm 0.00mm 10mm;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 11pt;\">(Thus reformed the preceding subsection by Article 1 of Law No. 9057 of July 23, 2012, "Reform of various laws on the Statute of Limitations for Damages caused to Minors") </span></span></div> <ol style=\"margin-top: 0mm; margin-bottom: 0mm; list-style-type: lower-alpha;\" start=\"2\" type=\"a\"> <li style=\"margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;\"> <p style=\"line-height: 154%;\" align=\"justify\"><span style=\"color: #010101; font-family: Arial;\"><span style=\"font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;\"><em>After two years, in crimes punishable only with non-custodial penalties and in misdemeanors or contraventions.</em></span></span></p> </li> </ol> Twenty-five years after the victim reached the age of majority, in the case of sexual crimes committed against minors or persons lacking volitional or cognitive capacity. The foregoing rule shall apply indistinctly to any perpetrator, accomplice, or participant responsible for the respective punishable act, provided that at the time of committing the crime they had reached the age of majority.» (Emphasis supplied). Note that this provision distinguishes crimes of a different nature against minors, since all non-sexual crimes would be governed by subsection a) (and the statute of limitations (prescripción) runs from when the victims turn 18 years of age), and sexual crimes against this population would be governed by subsection c), and the statute of limitations for the criminal action (prescripción de la acción penal) runs 25 years after reaching the age of majority, that is, starting at 43 years of age for the victim. Multiple criticisms can be made of this regulation because, first, if one starts from the hierarchy of legal interests established constitutionally and in human rights doctrine, it is reasonable that acts that threaten the greater value be repressed more drastically, both in terms of the types and amounts of penalties and regarding the provisions stipulated to avoid their impunity (statute of limitations periods (plazos de prescripción), etc.). In that logic, for example, attacks against life (attempted homicides—since the victim must be in a position to report—genocide, etc.) should have a longer statute of limitations period compared to that for illicit acts which, although they threaten essential legal interests for the development of the person (their sexual freedom), are not of the same rank. On the other hand, the stipulated period (of 25 years after the age of majority) alludes to "sexual crimes" that involve a wide range of illicit acts that affect the protected legal interest in very different ways and are not necessarily comparable: rape, sexual abuse, paid sexual relations, improper relations, sexual tourism, dissemination of pornography, improper abduction, corruption, procuring, pimping, human trafficking, street sexual harassment, etc. Here, the question that must be asked is: why 25 years for all crimes, even though they are of varying seriousness? Finally, the last criticism lies in: what was the parameter stipulated to set those 25 years? Even on other continents, specific treaties on the subject, such as the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (known as the Lanzarote Convention), ratified by 45 of the 47 member countries of the Council (and although open for signature by non-European countries, it has not been signed or ratified by Costa Rica), establishes that: "Each Party shall take the necessary legislative or other measures to ensure that the limitation period for initiating proceedings concerning the offences established in accordance with Articles 18, 19.1.a and b, and 21.1.a and b is sufficient to allow the effective initiation of proceedings after the victim has reached the age of majority and is proportionate to the gravity of the crime in question." [Emphasis is ours]. That is, although the tendency to generate differentiated statute of limitations periods for crimes against minors is part of international human rights law, the issue of proportionality must not be abandoned, which, in the cited law, seems to have been abandoned. These and other criticisms of the regulation can be consulted in the research work by Quesada Jiménez, Jorge Luis (2020). Imprescriptibilidad solapada de los delitos sexuales cometidos contra personas menores de edad o mayores de edad sin capacidad volitiva o cognoscitiva. Master's in Criminal Sciences, Universidad de Costa Rica. However, although these are not minor issues, they will not be explored in depth, as they lack consequences for the specific case. The fifth and last variation of the article referred to on this topic (since it was also varied regarding the liability of legal persons, but that topic is not of interest here) generated the current version, which since March 10, 2020, according to Law No. 9826, reads as follows:

ARTICLE 31.- Statute of limitations periods for the criminal action (Plazos de prescripción de la acción penal). If criminal prosecution has not been initiated, the action shall prescribe:

• a)After a period equal to the maximum penalty has elapsed, for crimes punishable by imprisonment, it may not exceed ten years nor be less than three, except in crimes committed against minors, in which case the statute of limitations (prescripción) shall begin to run from the time the victim has reached the age of majority.

(Thus reformed the foregoing subsection by Article 1 of Law No. 9057 of July 23, 2012, "Reforma de varias leyes sobre la Prescripción de Daños causados a Personas Menores de Edad") b) At two years, for crimes punishable only with non-custodial penalties and for misdemeanors or contraventions, except in crimes committed by legal persons, in which case the statute of limitations (prescripción) shall be ten years.

(Thus reformed the foregoing subsection by Article 41 of the law on the Responsabilidad de las personas jurídicas sobre cohechos domésticos, soborno transnacional y otros delitos, No. 9699 of June 10, 2019) c) Twenty-five years after the victim reached the age of majority, in the case of sexual crimes committed against minors, and twenty-five years from the consummation of the punishable act, the last act of execution of the attempt, or the cessation of the continuous crime, as appropriate, when these crimes are committed against persons of legal age lacking volitional or cognitive capacity. The foregoing rule shall apply indistinctly to any perpetrator, accomplice, or participant responsible for the respective punishable act, provided that at the time of committing the crime they had reached the age of majority.

(Thus reformed the foregoing subsection by the sole article of Law No. 9826 of March 10, 2020).

This change also does not apply to this case, as the crime is not against persons lacking cognitive or volitional capacity, which was what was introduced. After this recount, it is of interest to highlight Law No. 9685 of May 21, 2019, which alluded to the criminal statute of limitations (prescripción penal) after 25 years from the age of majority for victims of sexual crimes suffered during minority... Is that provision applicable to this case? Note that if the answer were affirmative, in this matter, the statute of limitations for the criminal action (prescripción de la acción penal) would have to begin to be counted only until September 3, 2031 (date of the offended party's 18th birthday + 25 years). However, this Chamber considers that it is not and, therefore, the computation must continue to be made using the common rules, given that: i) when that law entered into force (May 21, 2019), the offended party had already reached the age of majority (since September 3, 2006), so he was not in the factual situation provided for by the norm which intended that the prescriptive rules in force until then would not apply to persons who were victims of crimes and who, at the time of its entry into force, had not reached the age of majority and had not reported; ii) the cited law cannot be given retroactive effect to the detriment of the accused (Article 34 of the Constitution): if the law is from 2019 and the acts against [Name 005] date from 2005, it is clear that making it applicable would imply giving it that condition; iii) in all the reforms reviewed, the beginning of the header was respected, which refers to "If criminal prosecution has not been initiated". Conversely, when the process has been initiated, those rules do not apply, even if the victim has not yet reached the age of majority. In this regard, see the vote of the Third Chamber of the Supreme Court of Justice, number 841-2018, and of the Tribunal de Apelación de Sentencia Penal of the II Judicial Circuit of San José, resolution number 2014-1961 (J. Campos, L. García, and R. Chinchilla), in which it was stated: "...the reform so that the criminal action would not prescribe, when dealing with sexual crimes against minors who have not reported, but rather that the prescriptive period would begin to run only once they had reached the age of majority, was not introduced until July 18, 2007, through Law No. 8590, published in the newspaper La Gaceta No. 166 of August 30, 2007, and, as the date of the facts is not clear, what is most favorable to the accused would apply in that factual respect (Article 9 of the Code of Criminal Procedure (Código Procesal Penal)), which is to estimate that they occurred before August. By not applying said reform to the facts investigated here, the criminal action would have been extinguished by the statute of limitations (prescripción), this regardless of whether, even applying that regulation, it would govern the specific case, where a complaint had already been filed, which is what that article excepts, whose purpose was to prevent impunity in those matters where, due to the lack of support from guardians or the lack of maturity of the minor, it was not conceptualized that one was being the victim of a crime, which would not occur either if one reaches the age of majority or if one has had family or social support, to the point that the act has been reported." Also, number 675-2018 (P. Vargas, M. Porras, and L. Murillo) which stated: "The provided exception must be read in the context of the article, and from it, it is deduced that as long as criminal prosecution has not been initiated, special protection is granted to minor victims, so that it is not until they reach the age of eighteen that the computation of the statute of limitations period (plazo de prescripción) begins, a situation that does not occur in cases where the procedure has been initiated, because here the rules provided in Article 33 of the same regulatory body will apply." Finally, in vote number 2015-1034 (M. Gómez, R. Chinchilla, and J. Campos), it was indicated: "It must be taken into account that the reform so that the criminal action would not prescribe when dealing with sexual crimes against minors who have not reported, but rather that the prescriptive period would begin to run only once they had reached the age of majority, was not introduced until July 18, 2007, through Law No. 8590, published in the newspaper La Gaceta No. 166 of August 30, 2007. As the provisions of said reform cannot be applied retroactively when the prescriptive period had already run, and given that the complaint by the aggrieved party, in this case, was not filed until February 21, 2011 (folio 1 of the file), it is necessary, having noted the defect of notorious incidence on due process and in accordance with the powers and obligations that Articles 459 and 465 of the Code of Criminal Procedure (Código Procesal Penal) confer on this court, to declare the statute of limitations for the criminal action (prescripción de la acción penal) ex officio." In the present litigation, the complaint by [Name 005] was filed on August 28, 2014 (see folio 21); that is, by 2019, when Law No. 9685 entered into force, it was already in process, so that law (which prevents the use of common statute of limitations rules until the offended party reaches 43 years of age) is not applicable, and the case had to be analyzed based on the common regulations. In summary, the reforms made to the original 1998 text regarding how the statute of limitations computation (cómputo de la prescripción) begins cannot be invoked in this case because: i) Law No. 8590 of 2007, which established the computation starting from the victim's age of majority, could not apply because the offended party [Name 005] was born on September 3, 1988, as proven (see proven facts of the judgment on the merits (sentencia de mérito)), so he turned 18 on September 3, 2006. That is, when it entered into force, the offended party was already of legal age, and the cited law could not be applied retroactively; ii) Law No. 9057 of 2012 incorporated provisions for non-sexual crimes, so it is not of interest; iii) Law No. 9685 of 2019 extended the start of the computation 25 years after the victim's age of majority if the process had not been initiated, but in this case, the judicial matter had already begun with the complaint on August 28, 2014, when that law entered into force, so it did not apply; iv) Law No. 9826 of 2020 only alluded to new issues related to persons with cognitive disabilities, not pertaining to this case. Therefore, the matter must be treated with the original 1996-1998 rules on the method of computing the statute of limitations for the criminal action (prescripción de la acción penal) (maximum penalty for the crime if there are no interrupting or suspensive acts, and half that amount if there are). Now, at the beginning of this section (A.1), it was indicated that, based on the first paragraph (simple type applied by the court of origin (a quo)), the imprisonment amount of eight years was the maximum possible and generated the cap for the statute of limitations period (plazo de prescripción), which, reduced by half due to the initiation of the process and the existence of interrupting acts, would make four years. The events occurred in 2005 (without determining the exact date, therefore, under the principle in dubio pro reo, one must start from the beginning of the year), so the eight years (that is, the full statute of limitations period for the criminal action (plazo completo de prescripción de la acción penal), not yet reduced by half because no interrupting act had been generated and without suspending its computation because the laws referring to that topic are not applicable, as stated) would have been completed by the beginning of 2012. Even if one were to consider Law No. 8590 of 2007 —which established the computation of the statute of limitations for the criminal action from the victim's age of majority, which occurred on September 3, 2006— the eight years would have been completed on September 3, 2014. The accused was questioned (indagado) about these events on November 25, 2014 (see folio 56). This was the interrupting act that, additionally, reduced the prescriptive period by half. But, when it occurred, the full period for the extinction of the criminal action had already run. It is true that, from that point on, the four years (period reduced by half) did not run between the various acts with effects on the matter, since the summons to the preliminary hearing were made (among others) on these dates: the first on July 14, 2015 (folio 216), and others on May 2, 2016 (folio 291), May 23, 2016 (folio 315), and June 26, 2016 (folio 332). The first scheduling for trial was made on September 6, 2017 (folio 390), the first judgment was issued on June 7, 2019 (folios 389-555), the appellate judgment annulling the previous one is dated October 28, 2019 (folio 616), and the summons for the retrial dates from January 21, 2020 (folio 628). Although the foregoing are not the only hearings or schedulings and there are others that have an interrupting effect, they are the most relevant and allow us to see that the four years did not elapse between one act and another. However, a full eight years did run from the date of the event until that first interrupting act of the questioning (indagatoria), and this is sufficient to determine that these events, against [Name 005], were tried while being time-barred, and what should have been done was to determine so. Therefore, the conviction imposed on the accused for two acts against [Name 005] must be revoked and, instead, an acquittal ordered due to the extinction of the criminal action (acción penal) by the statute of limitations (prescripción), eliminating the sanction of six years of imprisonment (three for each crime against this affected person) from the total amount of the sentence, without this affecting the determination of civil liability. Without prejudice to what will be indicated regarding the civil aspect in another recital (VII), the extinction of the criminal action does not affect the extinction of the civil action (acción civil) because, on one hand, there is discussion about the applicable regulations regarding periods and grounds and, on the other (and above all), unlike the extinction of the criminal action, the extinction of the civil action is not declarable ex officio. In this matter, no express exception has been filed in that regard. Therefore, the decision on the criminal matter in this venue does not affect the ruling on the civil matter, which will be analyzed later based on other conceptual bases (see section VII.A). (A.2) Acts against [Name 003]: These events are placed in 2013, and the victim was an adult at that time.

At that date, the crime of sexual abuse against a person of legal age stipulated: </span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 18mm 1.86mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">«</span><span style="font-size: 11pt;"><em>Sexual abuses against persons of legal age&nbsp;&nbsp;</em></span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 18mm 0.07mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>Article 162.-&nbsp;&nbsp; If the abuses described in the preceding article are committed against a person of legal age, the penalty shall be </em></span><span style="font-size: 11pt;"><strong><em>two to four years of imprisonment.</em></strong></span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 17mm 1.88mm 10mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>The penalty shall be </em></span><span style="font-size: 11pt;"><strong> <em>three to six years of imprisonment</em></strong></span><span style="font-size: 11pt;"><em> when:&nbsp;&nbsp;</em></span></span></p> <ol style="margin-top: 0mm; margin-bottom: 0mm;"> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>The perpetrator takes advantage of the vulnerability of the offended person, or the latter is unable to resist, or bodily violence or intimidation is used.</em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>The perpetrator is an ascendant, descendant, sister, or brother of the victim.</em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 108%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>The perpetrator is an uncle, aunt, niece, nephew, or cousin of the victim.</em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>The perpetrator is a stepmother, stepfather, stepsister, or stepbrother of the victim.</em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>The perpetrator is the guardian or the person in charge of the education, custody, or safekeeping of the victim.</em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 154%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Normal; font-style: Italic; text-decoration: Normal;"><em>The perpetrator carries out the conduct against any of the relatives of their spouse or cohabitant, listed in subsections 3) and 4) above.</em></span></span></p> </li> <li style="margin-left: 15pt; margin-right: 50pt; padding-left: 0pt; font-family: Arial; font-size: 11pt; font-style: Italic; color: #010101;"> <p style="line-height: 150%;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt; font-family: Arial; color: #010101; font-weight: Bold; font-style: Italic; text-decoration: Normal;"><strong><em>The perpetrator takes advantage of their relationship of trust with the victim </em></strong></span><span style="font-size: 11pt;"><em>or their family, whether or not a kinship relationship exists.</em></span><span style="font-size: 12pt;">» (Emphasis supplied).</span><span style="font-size: 11pt;"><em>&nbsp;</em></span></span></p> </li> </ol> <p style="text-indent: 12mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">If one starts from the second paragraph (aggravated type charged, although not contemplated in the judgment and without prejudice to the fact that, if another determination is made in the ordered remand, the respective adjustments be made to these calculations) the maximum amount of six years of imprisonment generated the limit of the statute of limitations period (Article 31, subsection 1 of the Criminal Code) which, reduced by half due to the initiation of the proceeding and the existence of interrupting acts, would make three years. Since the acts occurred when the injured party was an adult, for the reasons already referred to in the immediately preceding section, the rules of non-computation until reaching the age of majority do not apply. Therefore, counted from 2013, the six years to generate an interrupting act would expire in 2019. In this matter, the complaint by </span><span style="font-size: 12pt;">[Name 003]</span><span style="font-size: 12pt;"> was filed on August 8, 2014 (see folio 1); the accused was investigated on November 25, 2014 (folio 56); the summons to the preliminary hearing were made (among others) on these dates: the first on July 14, 2015 (folio 216) and others on May 2, 2016 (folio 291), May 23, 2016 (folio 315), and June 26, 2016 (folio 332); the first trial setting was made on September 6, 2017 (folio 390), the first judgment was handed down on June 7, 2019 (folios 389-555), the appellate judgment annulling the previous one is dated October 28, 2019 (folio 616), and the summons for the remand dates from January 21, 2020 (folio 628). Although the foregoing are not the only hearings or settings and there are others that have an interrupting effect, they are the most relevant, and those omitted do not alter the decision insofar as they are additional interrupting acts or, in other words, if with these the criminal action is not time-barred, still less would it be considering others that increase the count. This being the case, it is concluded that in this case the statute of limitations for the criminal action has not run and, for that reason and without prejudice to what has already been indicated regarding eventual decriminalizations (which must be discussed, if deemed appropriate, in the constitutional court), the decision is not affected by the prescriptive issue. That means that the remand ordered to determine the correct legal classification and the penalty must be maintained.&nbsp;</span> </span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><strong>&nbsp;VII.- </strong></span><span style="font-size: 12pt;"><strong>[Name 012]</strong></span> <span style="font-size: 12pt;"><strong>, general attorney-in-fact without limit of amount of Temporalidades de la Arquidiócesis de San José</strong></span><span style="font-size: 12pt;">, by means of a document authenticated by attorney Vanessa Zúñiga Mora, questions, in the </span><span style="font-size: 12pt;"><strong>first ground of his appeal</strong></span><span style="font-size: 12pt;">, the reasoning of the judgment that held his represented party as jointly and severally civilly liable. He says that this type of liability arises from the failure in the duty to choose and supervise the person to whom we entrust one or many acts. However, the civil plaintiff did not demonstrate that a legal nexus exists between the accused in this case and Temporalidades de la Arquidiócesis de San José, so the criterion of attribution required by Costa Rican law is not met. He notes that the legal nature of Temporalidades de la Arquidiócesis de San José is not that of a corporation conceived according to the rules of commercial law or one arising from an agreement or articles of incorporation; rather, its creation derives from Law No. 6062 of 1977, which granted legal capacity to the Conferencia Episcopal de Costa Rica, as well as to each of the dioceses or ecclesiastical jurisdictions into which the national territory is divided, so that the former could act within the legal system. He maintains that his represented party acts on behalf of the Catholic Church solely to execute acts, contracts, incur obligations, and especially to acquire assets which will be liable only for the damages and losses caused by virtue of the acts and contracts executed by it, that is, it will eventually be liable for the damages and losses caused by its legal representatives, officers, or workers in the exercise of their functions. He argues that priests do not represent or act on behalf of or for the account of Temporalidades de la Arquidiócesis de San José, so personal or ecclesiastical acts of theirs do not compromise the assets of his represented party, which, in no way, must answer for the damages or losses caused by the actions of those, and this follows from the testimony of priests </span><span style="font-size: 12pt;">[Name 078]</span><span style="font-size: 12pt;"> and </span><span style="font-size: 12pt;">[Name 079]</span><span style="font-size: 12pt;"> at trial, since priests do not represent, nor act in its name, although there are some who hold the judicial and extrajudicial representation of the legal entity, in which case their actions could compromise its assets, but this is not the case of the accused. He considers that the trial court does not adequately support why his represented party should have supervised Father </span><span style="font-size: 12pt;">[Name 001]</span><span style="font-size: 12pt;">, if it is clear that no link exists with him and his priestly ministry, nor did it have any reason to supervise his actions. In the </span><span style="font-size: 12pt;"><strong>second ground of the appeal of the civilly sued third party</strong></span><span style="font-size: 12pt;">, the inadequate assessment of the evidence is alleged, since he considers that the circumstance accredited by the trial court —that the accused here received a salary from Temporalidades de la Arquidiócesis de San José— is completely erroneous. He maintains that the evidence provided by the civil plaintiff —consisting of the contributions study issued by the Caja Costarricense del Seguro Social (CCSS) in the name of </span><span style="font-size: 12pt;">[Name 001]</span><span style="font-size: 12pt;">— should have been interpreted and assessed together with other evidence, such as the legal opinion issued by the Dirección de Asuntos Jurídicos of the Ministry of Labor, Department of External Advisory No. DAJ-AE-108-09 dated May 8, 2009, visible at folios 45 to 48 of the civil damages action file, where the agreement that exists between the CCSS and the Conferencia Episcopal de Costa Rica is mentioned. He narrates that such agreement was signed, initially, in 1994 to comply with what the Code of Canon Law establishes, that is, that it was the Conference's obligation to guarantee the social assistance of priests in cases of illness, disability, and old age, and that in 2001 the contribution regime was changed so that they would not be classified as independent workers but rather would be covered under the Reglamento para la Afiliación de Asegurados Voluntarios in its Article 2 (which he copies) insofar as the priests did not receive income from an employment relationship. He argues that that contributions study cannot be interpreted and given value by disregarding the reality that exists since, for the CCSS itself, priests are considered voluntary insured persons, they do not generate income through an economic activity, they have not been direct insured persons, and they do not have their own income. He considers that, if they are not salaried persons of his represented party, no employment relationship exists that generates a legal nexus between the two or that supports indirect subjective liability. He recalls that, at trial, it was proven that the one who appoints priests to parishes and assigns them duties is the diocesan bishop, not Temporalidades de la Arquidiócesis de San José. Furthermore, priests do not receive a salary, but rather what they receive is a subsidy or sum that allows them to cover their basic needs, which comes from donations or offerings that the faithful contribute in the different communities. This being so, although a document says that his represented party is the employer of priests, that is not the case, since it does not have the obligation to cover the contributions corresponding to the Fondo de Capitalización Laboral and the Régimen de Pensiones Obligatorias, which is mandated by law for those persons, natural or legal, who maintain an employment relationship with their workers. Therefore, the document should have been assessed in accordance with the rest of the evidence. As the </span><span style="font-size: 12pt;"><strong>third argument of the appeal of the civilly sued third party</strong></span><span style="font-size: 12pt;">, the lack of reasoning is alleged insofar as the civil plaintiff —despite having attempted to support the joint and several liability of his principal by alluding to the fact that the denounced acts occurred on properties owned by Temporalidades de la Arquidiócesis de San José— did not prove the fulfillment of the requirements that both legislation and doctrine demand for strict liability (responsabilidad objetiva), since his represented party did not provide a place or property for criminal acts to be carried out with complete comfort and impunity, nor was the existence of any legal norm demonstrated that expressly establishes this type of liability for the spiritual activity carried out by the church. Legal opinion DAJ-AE-108-09 dated May 8, 2009, from the Ministry of Labor concludes regarding the non-existence of an employment relationship due to the non-fulfillment of the essential elements for one to exist, and canon law is a source of law in this country, so what is provided therein must be immediately complied with. From that and from an agreement entered into in light of such source to provide social security to priests, the existence of an employment relationship cannot be derived. He adds that there are two judicial proceedings pending resolution that will determine whether or not an employment relationship exists and, therefore, the obligation to contribute to the CCSS under another category and not the one that operates to date. Said proceedings are 12-004436-1027-CA and 15-001341-1178-LA, but, currently, the existence of an employment relationship has not been determined, nor does any link exist between his represented party and the accused. He considers that the arguments for a joint and several civil judgment against </span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">Temporalidades, for the moral damages suffered by the offended party, </span> <span style="font-size: 12pt;">[Name 005]</span><span style="font-size: 12pt;">, are not valid, and that the church's activity is not hazardous, is not typified as such, and </span><span style="font-size: 12pt;"><em>per se </em></span><span style="font-size: 12pt;">does not cause risks. He alludes to judgment number 48-2008 of the First Chamber of the Supreme Court of Justice, where it is indicated that strict liability cannot be derived from interpretations and refers that the theory of created risk finds its support in the fourth and fifth paragraphs of Article 1048 of the Civil Code. However, this norm attributes strict liability to the entrepreneurs of dangerous establishments and to those dedicated to operating means of transport, since both activities involve economic benefit, which was also not proven by the civil plaintiff, since his represented party is a non-profit entity. He requests that the decision be revoked. </span><span style="font-size: 12pt;"><em>The arguments were reiterated, summarized, in the oral hearing. </em></span><span style="font-size: 12pt;"><u>In</u></span> <span style="font-size: 12pt;"><u>responding to these arguments</u></span><span style="font-size: 12pt;">, the Office of Civil Defense of the Victim</span> <span style="font-size: 12pt;">considered that the arguments are not admissible since the judgment is duly reasoned, as it was</span> <span style="font-size: 12pt;">proven that, at the time of the acts, the civil defendant </span><span style="font-size: 12pt;">[Name 001]</span><span style="font-size: 12pt;"> was part of the clergy, serving as parish priest in the time frame that circumscribes the acts. It says that there is also no doubt about the causal link existing between the intentional action of the civil defendant and the harmful result to the sexual integrity of the civil plaintiff </span><span style="font-size: 12pt;">[Name 005]</span><span style="font-size: 12pt;">. Furthermore, the Catholic Church has a particular status in the Costa Rican State, and the entity that represents it is Temporalidades de la Arquidiócesis de San José as a legal person. It indicates that its liability derives from the absence of due supervision of the accused, who was serving in an ecclesiastical role, which was the duty of his superior. It refers that the trial court based itself on Articles 1045 and </span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">1048, third paragraph (which it copies) of the Civil Code, that is, it alluded to indirect subjective liability or </span><span style="font-size: 12pt;"><em>in vigilando</em></span><span style="font-size: 12pt;"> liability, which corresponds to vicarious liability for the acts of others. Regarding the liability against Temporalidades de la Arquidiócesis de San José, it cites and partially transcribes opinion number 2012-2411 of the Tribunal de Apelación de Sentencia de San José, which upholds it. It indicates that it was demonstrated that due supervision was not exercised over the actions committed by Father </span><span style="font-size: 12pt;">[Name 001]</span><span style="font-size: 12pt;">, since </span><span style="font-size: 12pt;">[Name 079]</span><span style="font-size: 12pt;">, who was the Vicar General, and </span><span style="font-size: 12pt;">[Name 078]</span><span style="font-size: 12pt;">, Episcopal Vicar, had knowledge of said actions and tried to rectify what happened, without concrete actions being taken, all of which implies a lack of supervision that entails joint and several civil liability for the Church. It says that it is not true that it was accredited that the accused received a salary from Temporalidades de la Arquidiócesis de San José; rather, what is mentioned is that the civil defendant </span><span style="font-size: 12pt;">[Name 001]</span><span style="font-size: 12pt;"> declared himself part of the payroll with a salary linked to Temporalidades de la Arquidiócesis de San José, for which documentary evidence was provided consisting of a report of accumulated salaries and a CCSS contributions study report, through which Temporalidades de la Arquidiócesis de San José was linked as the employer of the accused. This evidence was not to determine whether there was an agreement with the CCSS for the payment of insurance, as the civil third party asserts, but to demonstrate the link between </span><span style="font-size: 12pt;">[Name 001]</span><span style="font-size: 12pt;"> and Temporalidades de la Arquidiócesis de San José and to add further evidence of the Church's liability, since </span><span style="font-size: 12pt;">[Name 001]</span><span style="font-size: 12pt;"> declared that priests did not act on behalf of or for the account of Temporalidades de la Arquidiócesis, when, in his CCSS file, the one who appears as his employer is Temporalidades de la Arquidiócesis de San José. It indicates that the Church, as an institution and religious authority, provides a service to the community of parishioners, chooses a priest who undergoes several years of study, accepts his ordination, and then the appointment is made. </span><span style="font-size: 12pt;">[Name 079]</span><span style="font-size: 12pt;"> established that priests must submit pastoral reports, and the Pastoral Vicar follows up on them, all of which would evidence the existing relationship and the duties of selection and supervision that ground the joint and several liability. It concludes that, at trial, there was evidence that the accused was a parish priest in the place where the acts occurred, and it was during that time that they occurred. It alludes to moral damages and their legal support (Articles 59 and 1045 of the Civil Code and 125 of the Criminal Code) and how, in this matter, it was demonstrated, and it requests the rejection of the complaints. The other parties did not address this particular matter. </span><span style="font-size: 12pt;"><strong>The arguments, since they question from different perspectives the issue of the joint and several judgment, are related and will be addressed jointly and must be rejected. <span class="example1 304898" style="font-size: 12pt;">(A) </span></strong></span><span class="example1 304898" style="font-size: 12pt;"><u>Regarding the criminal and civil statute of limitations rules</u></span><span style="font-size: 12pt;"><span class="example1 304898" style="font-size: 12pt;">. In section VI.A.1, it was stated why, in this chamber's view, the criminal action for one of the offended parties is time-barred. However, such decision does not affect the civil matter.</span> First, because there has been extensive legal discussion on the applicable legislation concerning time limits and grounds for extinguishment of the civil action when, as in this case, the extinguishment of the criminal action to which that claim was linked has occurred. Second, because, unlike the extinguishment of the criminal action, which can be declared ex officio (Article 42, subsection c) and final paragraph of the Code of Criminal Procedure), the extinguishment of the civil action is not declarable ex officio (Article 2.4 of the Code of Civil Procedure) and, in this matter, no express exception in that sense has been filed, which will be expanded upon in due course (see section VII.A). Regarding the normative discussion on the applicable legislation and the time limits to use for the civil matter when extinguishment of the criminal action due to the statute of limitations has occurred, it must be kept in mind that Article 868 of the Civil Code stipulates: “</span><span style="font-size: 11pt;"><em>Every right and its corresponding action prescribe in ten years. This rule admits the exceptions prescribed by the following articles and others expressly established by law, when specific cases require more or less time for prescription</em></span><span style="font-size: 12pt;">”. The exceptions in the following articles are those indicated in numerals 869, 870, and 871 of the Civil Code, which establish, respectively, a prescription of three and one year, and in the last numeral, it states: “</span><span style="font-size: 11pt;"><em>Civil actions arising from a crime or quasi-crime prescribe together with the crime or quasi-crime from which they arise</em></span><span style="font-size: 12pt;">”. This article, in principle, was the applicable one for purposes of the prescription of the action for damages derived from a crime, and not Article 868 on decennial prescription. This in application of the Latin aphorism according to which special law prevails over general law (</span><span style="font-size: 12pt;"><em>leges generales non debent etendi at leges, quae habent suam particularem provisionem: </em></span><span style="font-size: 12pt;">general laws should not be extended to cases that have their own special provisions). So, for a long time, it was considered that the prescription of the criminal action and the action for damages derived therefrom ran together [see in this regard: Abdelnour Granados, Rosa María (1984). </span><span style="font-size: 12pt;"><em>La Responsabilidad Civil Derivada del Hecho Punible. </em></span><span style="font-size: 12pt;">Editorial Juricentro, San José, pp. 167-168]. That was the position of the Third Chamber, for example, in opinion number 565-F at 4:15 p.m. on December 12, 1994. However, for another sector, numeral 871 of the Civil Code was implicitly repealed by numeral 96, second paragraph of the Criminal </span></span></p> <p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">Code, which establishes: “</span><span style="font-size: 11pt;"> <em>The extinguishment of the criminal action and of the penalty shall not produce effects with respect to the obligation to repair the damage caused, nor shall it prevent the confiscation of the instruments of the crime</em></span><span style="font-size: 12pt;">” (cfr. Zúñiga Morales, Ulises. </span> <span style="font-size: 12pt;"><em>Código Penal anotado</em></span><span style="font-size: 12pt;">. Investigaciones Jurídicas. p. 60). Therefore, the Third Chamber in opinion number 297-A at 2:55 p.m. on July 9, 1993, made a constitutional query on the matter, and the Constitutional Chamber, upon resolving it, ruled: </span></span></p> <p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 2mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">“...</span><span style="font-size: 11pt;"><em>in the case of a crime, there is an eminently public interest; in the other (case of merely civil injury), the interest is basically private.</em></span></span></p> Hence, even if there is a public interest in the case of a crime, the criminal action (acción penal) prescribes in accordance with the provisions of Article 82 of the Criminal Code; it is logical, contrary to what was expressed in the query, that the civil action prescribes along with it, since the latter is, in relation to the former, merely secondary, and therefore, it would be contradictory if the principal matter, which is the crime, can no longer be pursued against a person, when that interest is merely private while in another it is public. Thus, if, in accordance with the criminal law itself, certain crimes prescribe in a period of less than ten years, the legislator would be mistaken to grant greater legal protection to the purely private interest of the party harmed by the crime than to the main public interest and to extend the statute of limitations for the civil action, for example, to ten years, so that even when no criminal sanction could be imposed, the offended party could collect the damages arising from a criminal act." (Constitutional Chamber. Ruling number 5029-93 of 14:36 hours on October 13, 1993). In light of this, the Third Chamber continued to apply the prevalence of section 871 of the Civil Code for a long time: see, for example, rulings number 85-99 of 9:40 hours on January 21, 1999, and 891-99 of 9:15 hours on July 19, 1999. However, the matter was revisited in the following terms: "The Constitutional Chamber of the Supreme Court of Justice ruled that upon the prescription of the criminal action, the same would occur with the civil claim, which contradicts Article 96, second paragraph, of the Criminal Code. We affirm the foregoing because the statute of limitations (prescripción) is a cause for the extinction of the criminal action. Furthermore, the Criminal Code is a special law and posterior to the Civil Code, thereby making clear which legislation was applicable to the case. The problem is not whether Article 871 is constitutional or not. What is important is that there is a subsequent and special rule that rendered it ineffective. We understand then that the statute of limitations for the criminal action, a cause for the extinction of the criminal action, does not produce effects on the obligation to compensate." [SANABRIA ROJAS, Rafael (2000): La Prescripción de la acción penal en la nueva legislación procesal costarricense. Editorial Jurídica Continental. San José, page 100). A thesis that has finally prevailed almost uniformly in the jurisprudence of recent decades, with some relevant exceptions, such as the dissenting opinion in ruling number 2021-193 of the Criminal Sentence Appeals Tribunal of Cartago, which states: «

II. Dissenting vote of Judge Fernández Mora

In this matter, I must record my dissent with the majority in ordering a retrial to determine civil liability, despite having determined the statute of limitations for the criminal action for some of the offenses, since from my perspective, the civil action also prescribed jointly with the criminal action, as established by current legislation. Article 871 of the Civil Code states that: "Civil actions arising from a crime or quasi-crime prescribe together with the crime or quasi-crime from which they arise." In other words, since the crime being judged had prescribed long before the facts were charged, by express decision of the legislator, the right of the offended party to claim civil compensation also prescribed, so it is not possible to interpret that in this case the statute of limitations for the civil action ran independently of the criminal action. It should be noted that I am aware of the position taken by the Criminal Cassation Chamber starting with Ruling No. 20020861 of 10:00 hours on 20/08/2002, where it is held, among other conclusions, that Article 871 of the Civil Code was tacitly repealed by Article 96 of the Criminal Code and that the term (sic) for the civil action to prescribe is ten years. However, in accordance with the constitutional principle of judicial independence that protects me in my jurisdictional function, I disagree with the reasoning that the honorable Cassation Chamber has provided, since it is not true that one can speak of a tacit repeal of Article 871 of the Civil Code, as will be indicated further below. Nor is it accurate to establish that in all cases, the computation of the civil statute of limitations is ten-year, when there is expressly a rule that provides otherwise, as indicated by Article 868 of the Civil Code: "Every right and its corresponding action prescribe in ten years. This rule admits the exceptions prescribed by the following articles and others expressly established by law, when specific cases require more or less time for prescription." (...) it must be noted that Article 109 of the Criminal Code refers to the fact that: "The obligations corresponding to civil reparation are extinguished by the means and in the manner determined in the Civil Code...", which would imply for the Chamber that the legislator, with a classical criterion, made a referral so that the extinction of civil obligations is determined with a positivist criterion such as that expressed in Article 871 of the Civil Code. The Cassation Chamber's arguments to affirm that Article 96 of the Criminal Code tacitly repealed Article 871 of the Civil Code overlook circumstances whose consideration is essential in light of the rules for the application of the tacit repeal of a rule, such as the criterion of lex posterior. In this sense, Josep Aguiló states that: "Not every normative inconsistency leads to a repeal due to incompatibility. There is only a repeal when the ordering of conflicting norms is carried out by applying the criterion of lex posterior. No repeal follows from the application of the criteria of lex specialis and lex superior" (Aguiló, Josep. La derogación en pocas palabras. Anuario de Filosofía del Derecho XI, 1994, page 412). From the foregoing perspective, it could not be interpreted that Article 871 of the Civil Code is tacitly repealed because the Criminal Code, containing the referenced Article 96, was enacted in 1970, because through a subsequent law the legislator decided to restore the effects of Article 871 of the Civil Code. This subsequent legal provision is none other than Law No. 4981 of November 8, 1971, which reinstates the validity of Title IV, Book I of the 1941 Criminal Code, which in its Article 138 provides: "The obligations concerning civil reparation, treated in this chapter, are extinguished by the means and in the manner determined by the Civil Code for civil obligations," which necessarily refers to the form of extinction of the civil action (statute of limitations) arising from a crime stipulated in Article 871 of the Civil Code. (...) even assuming the Cassation Chamber's interpretation were correct, regarding the existence of a tacit repeal by incompatibility of norms of Article 871 of the Civil Code, upon the promulgation of Article 96 of the Criminal Code, said norm would not have lost any validity, but was incompatible only for a period of slightly more than one year (from May 4, 1970, to November 18, 1971), since, subsequently, the same legislator decided to restore it in all its effects through a new act of legislative promulgation. (...) In other words, as Article 871 of the Civil Code is a valid, effective norm that also has no constitutional frictions, it must be effectively applied by the judge. For this judge, it is clear that there is an exception to the general principle of the ten-year statute of limitations for filing a claim in civil court. It is precisely the law that establishes that, in the case of liability derived from a crime, the civil action must prescribe together with the criminal action (...) In my opinion, it is possible to conclude that, far from being correct the brilliant theoretical exposition carried out by the Cassation Chamber, the legislator has not even realized that it enacted a hybrid and even incoherent regulation regarding the issue of civil liability derived from a crime and that is why, at the same time, it gives it a treatment characteristic of a classical system as well as of a positivist system. This is a regulation that leaves in force rules on the extinction of the civil action that subject it to the extinction of the criminal action, which must be applied because it is subsequent legislation that, rather, tacitly repeals what is provided by the second paragraph of Article 96 of the Criminal Code. By virtue of the foregoing, having determined in this judgment that the criminal action is time-barred, in accordance with the provisions of Article 871 of the Civil Code, it is appropriate to declare the civil action to claim the damage derived from the investigated crime time-barred and to absolve the defendant of pecuniary liability.» (Bold supplied). Regardless of the position adopted in this regard, the fact is that civil matters are governed by the principle of party disposition (principio dispositivo) and since none of the parties alleged the statute of limitations for the civil action, that declaration does not affect (for that reason, without prejudice to others, which will be analyzed in due course) the civil compensation. This has been stated on other occasions: «Regarding the civil claim, the ruling stands, because the exception of the statute of limitations was not raised in this aspect, so it is considered waived, in accordance with Article 851 of the Civil Code, which indicates:

"The waiver of the statute of limitations (prescripción) can be tacit, and results from not raising the exception before a final judgment…". The statute of limitations is not declarable ex officio, so, as it was not alleged, the judgment in the civil aspect must be upheld» (Former Criminal Cassation Tribunal of San José, ruling number 492-F-8 of 10:20 hours on July 13, 1998; emphasis supplied).

(B) On the need to issue a civil ruling despite the extinction of the criminal action: Additionally, it must be indicated that the issuance of that decision does not imply that what was resolved in civil matters must be annulled and, much less, that the parties must resort to another venue in protection of their rights. This chamber is not unaware of what was stated by the Third Chamber in ruling number 2021-347 where, applying section 40 of the Criminal Procedure Code (principle of accessoriness of the civil action), it considers that, if a dismissal (sobreseimiento) due to the statute of limitations is issued before trial, it is not appropriate to rule on the civil matter, but rather it must be sent to the respective venue. However, it does not apply it for two reasons: i) in this matter, a dismissal due to the statute of limitations was not issued before the hearing, but after it, in the sentence appeal phase, which implies that the decision on the civil matter must continue as it cannot be raised ex officio; ii) the precedent is considered incomplete since, although it is adequate from a purely legal standpoint, the decision changes when principles of higher rank, constitutional and conventional (effective judicial protection, access to justice) guaranteed to victims by international instruments and by section 41 of the Magna Carta, are incorporated, which were not made visible by said tribunal. That is, it did not apply the normative hierarchy that causes laws to yield value before constitutional and conventional norms and principles. Said Chamber stated, in summary, in that precedent: «

III.The criterion previously held by this Chamber is changed and the jurisprudence is unified (...) The issue on which the different application of the law is claimed consists of the possibility for the trial court to hold the hearing on the civil aspects, when a final dismissal for extinction of the criminal action has been previously issued. The first thing to note is that this Chamber verifies that indeed the two resolutions mentioned resolve the issue differently, despite presenting a similar factual scenario, which was the issuance of a final dismissal due to the statute of limitations for the criminal action, prior to the adversarial proceeding being held. (...) Through pronouncement No. 2010-0105, of 11:00 hours, on February 17, 2010, it was established that: "[...] the decision regarding the criminal action did not imply, at this stage of the process, that the judges could disregard it and consider it concluded, since the discussion of the civil compensatory action, legitimately exercised, was still pending in that trial venue (...)" (Signed by substitute judges Rafael Segura, Jaime

Robleto, Sandra Zúñiga, with dissenting vote of substitute judges Rosibel López and Jorge Desanti). However, upon a better weighing of the issue, the current composition of this Chamber considers it pertinent to change the criterion that had been sustained, based on the considerations set forth below. The criminal process is designed for the judge to impart justice when faced with the existence of unlawful acts, which make it necessary to impose a penalty or security measure. However, by legal provision, in some cases, jointly, it will also be incumbent upon the judge to rule on the civil claims asserted by the legitimate parties. In this regard, section 37 of the Criminal Procedure Code states: "The civil action to restore the object that is the subject of the punishable act, as well as the reparation of the damages caused, may be exercised by the injured party, his heirs, his legatees, the estate, or by the beneficiary in the case of personal claims, against the authors of the punishable act and participants in it and, where appropriate, against the civilly liable party." Although the civil action can be exercised within the criminal process, it is not autonomous, but is subordinated to the exercise of the criminal action, that is, it has an accessory character, as established in section 40 of the procedural code:

"In the criminal procedure, the civil compensatory action may only be exercised while the criminal prosecution is pending. If the defendant is provisionally dismissed (sobreseído provisionalmente) or the procedure is suspended, in accordance with the provisions of the law, the exercise of the civil action shall be suspended until the criminal prosecution continues, and the right to file the claim before the competent courts shall be preserved. An acquittal shall not prevent the court from ruling on the validly exercised civil compensatory action, when appropriate." It is important to note that the exercise of the civil action within the criminal process is optional for the interested party, who could well assert their rights in the ordinary civil venue, as provided by Article 41 ibidem: "The civil action may be exercised in the criminal process, according to the rules established by this Code, or brought before the civil courts; but it may not be processed simultaneously in both jurisdictions." This clarification is of particular importance, because, by choosing its exercise in the criminal venue, the party accepts the existing regulation in said process, as well as its consequences. And it is that, starting from the aforementioned accessoriness, it must be understood that there is a relationship of dependence of the civil action with respect to the criminal action, so that, if the latter is not promoted or, if exercised, there is an impediment for it to continue, the former cannot continue either, that is, the civil action can only be pursued when the criminal action is underway. Now, starting from the basis that the criminal and civil aspects are subject to different statute of limitations periods, it could well happen that the expiration of the former occurs, leaving the latter subsisting. Of interest for the case, it must be indicated that, if said situation occurs during the course of a criminal process, in which the civil action has been jointly exercised, with the case being under the cognizance of the trial court, but without the hearing having been held, it will lose competence to rule exclusively on the civil aspects. The foregoing is because among the different criteria for establishing competence is the subject matter, according to which the civil and criminal spheres are differentiable by their nature and independent in their regulation. Thus, Article 165 of the Organic Law of the Judicial Branch provides that: "Every judge has his competence limited to the territory and the class of matters assigned to him to exercise it." From the relationship of sections 96 and 96 bis, ibidem, it follows, as relevant, that trial courts have competence to hear the trial phase for the judging of crimes. It acquires competence to rule on the civil aspects only by reason of the joint exercise of the actions. No norm of the legal system empowers it to hear exclusively on the civil action, so it could not arrogate prerogatives that the law does not grant it, as this would violate the principle of legality, according to which public officials may only carry out those actions that the law empowers them to do (See Article 11 of the Political Constitution and Article 11 of the General Law of Public Administration). In this sense, what is provided in Article 359 of the Criminal Procedure Code should not be confusing, which refers to those cases in which the bifurcation (cesura) of the hearing or a retrial (reenvío) has been ordered solely for the determination of the penalty or civil consequences. In these cases, the dependency relationship between the civil aspects and the criminal aspects is maintained, because the bifurcation implies that a trial on criminal liability is first held, then another on the penalty and civil consequences, but all within the same process; while when a retrial is ordered solely for the civil aspects, a judgment that resolved the criminal matters serves as a precedent. Continuing with the analysis, see that section 340 of the Criminal Procedure Code provides that: "If a cause for the extinction of the criminal action arises and the holding of the hearing is not necessary to verify it, the court may issue the final dismissal. The Public Prosecutor's Office (Ministerio Público), the victim, the private prosecutor (querellante), and the civil plaintiff (actor civil) may file an appeal of the sentence against what was resolved." That is, the powers of the civil plaintiff are limited to challenging what was resolved, not to continuing with the exclusive exercise of the civil action. In this regard, the Chamber in ruling 2003-00034, of 8:42 hours, on January 31, 2003, pronounced itself stating the following: "[...] The dismissal ordered by the a quo, considering that the criminal action was extinguished by the statute of limitations, inexorably closes the process by complaint and the civil claims may no longer be discussed in this venue for the simple and logical reason that the procedure ended without the merits being discussed and resolved..." (Signed by Magistrates Daniel González, Jesús Ramírez, Rodrigo Castro, José Manuel Arroyo, and Joaquín Vargas Gené). A different case is when, as a product of the development of the hearing, after the parties have had the possibility to discuss the facts, present evidence, and formulate claims, the extinction of the criminal action is noticed, in which case the court must resolve what corresponds regarding the legal situation of the accused person and in relation to the liability of the civil defendants. This reasoning is in absolute correspondence with what is provided in Article 40 in fine of the procedural code: "An acquittal shall not prevent the court from ruling on the validly exercised civil compensatory action, when appropriate." The foregoing because the joint exercise of both actions was carried out up to that procedural stage, and once the hearing has been held, the court has the obligation to rule on all the aspects submitted for its consideration, including the civil claims. Note that Article 361 of the Criminal Procedure Code provides that the judges must deliberate and vote regarding the issues, among them "the appropriateness of the criminal action and any other incidental issue that has been deferred to this moment" (subsection a), as well as "When appropriate, matters related to the reparation of damages." (subsection e). From the analysis carried out, this Chamber does not observe deficiencies in the reasoning outlined by the ad quem, but rather, on the contrary, considers that this is the correct way in which the questioned legal aspect must be resolved. In the present case, we have that the a quo, making use of the power granted in section 340 of the procedural code, issued a final dismissal in writing, without holding the adversarial proceeding. However, it omitted to rule on the civil action (...) which motivated the filing of the sentence appeal by this latter office, considering that it causes harm to its represented party, by not holding the trial on the civil aspects, which generates, in turn, that the aggrieved party is forced to initiate a new process in the civil venue, with all the difficulties this implies. In response, the Sentence Appeals Tribunal of the Second Judicial Circuit of Guanacaste, through resolution 087-20, of 10:30 hours on February 28, 2020, declared the challenge without merit, determining that the issuance of the final dismissal by the trial court prevents the civil claims from continuing to be heard within the criminal venue, as competence has been lost. In this regard, it indicated: "First, the issue must be approached from the principle of legality, thus, Article 11 of the Political Constitution states, as relevant, that: 'public officials are simple depositaries of authority. They are obliged to fulfill the duties that the law imposes on them and cannot arrogate powers not granted to them in it…'. The foregoing refers to the principle of legality, as a limit on the 'sovereign power' that the Administration enjoys, before the citizens, according to the legitimacy that the law itself gives to its actions.

In that line of thought, as provided in Article 40 of the Code of Criminal Procedure, the civil action is accessory to the criminal action, emphasizing that: "the civil action for damages may only be exercised while the criminal prosecution is pending," so that when the second action is extinguished and since the civil action procedurally depends on the principal action, the obligation to resolve the merits of the civil claim will depend on whether the statute of limitations on the criminal action is known before or during the holding of the trial. </em></span><span style="font-size: 11pt;"><strong><em>If the matter of the statute of limitations is known during the debate stage, the discussion of the validity of the action may be deferred to judgment. However, in the event that no debate has been scheduled and the statute of limitations is detected, as occurs in the specific case, the competence of the trial court to hear the civil claim is exhausted upon resolving the extinction of the criminal action</em></strong></span><span style="font-size: 11pt;"><em> since it is impossible to arrogate a competence that, in accordance with the principle of legality, is circumscribed to the distribution made by law of the different spheres of cognizance based on criteria of subject matter, gravity or amount, territory, and degree, which in the specific case is reduced to the cognizance of the criminal cause (criminal action)." It further adds: "Under this line of thought, this Chamber concludes that the issue of competence, which is closely linked to that of the natural judge and constitutes a fundamental guarantee in any State of Law, is seriously compromised when a definitive dismissal due to extinction of the criminal action is issued and a subsequent scheduling of a trial to resolve the civil claim is ordered, as the appellant proposes, for once the criminal action is extinguished, the legal competence to conduct a debate on the compensatory claim no longer exists, as the criminal prosecution is no longer pending as a consequence of the definitive dismissal issued before the debate." This Chamber considers that the analysis carried out by the court below is in accordance with law and conforms to the new position on the matter adopted in this pronouncement. Based </em></span></span></p>\n<p style="text-indent: 0mm; line-height: 151%; margin: 0.00mm 0mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 11pt;"><em>on the foregoing, since no deficiencies are observed in the challenged resolution regarding the interpretation and application of the law, what follows is to deny the challenge filed by the representative of the Office of the Civil Defense of the Victim. The jurisprudential criterion that this Chamber had maintained in resolution 2018-00561, of 11:10 a.m. on August 17, 2018, is varied, and the jurisprudence is unified to the effect that, when the criminal action is declared time-barred at the trial stage without an adversarial hearing having taken place, the civil action, being subordinated to it, cannot prosper, given the impossibility of it being pursued autonomously, due to the lack of legal authorization for doing so.</em></span><span style="font-size: 12pt;">» (Emphasis supplied). Note that the Third Chamber, nowhere in its decision on the topic, even mentions, much less delves into the analysis of, the constitutional and conventional principle (ergo, of higher rank than the law) of access to justice and effective judicial protection for victims who have chosen one route (criminal) and should not be subjected to the bureaucratization of going from one proceeding to another, from one court to another, begging (as if it were a power and not a right) for the recognition of compensation, with the loss of time that this implies and with the modification of rules, including those on statutes of limitations and their method of calculation (which, in the civil sphere, would not count the acts of the criminal proceeding). This principle is enshrined in Article 25.1 of the American Convention on Human Rights, in numeral 41 of the Political Constitution, and in the </span><span style="font-size: 12pt;"><em>Brasilia Regulations regarding access to justice for vulnerable people, </em></span><span style="font-size: 12pt;">and in this regard, the jurisprudence of the Inter-American Court </span></span></p>\n<p style="text-indent: 0mm; line-height: 154%; margin: 0.00mm 0mm 0.07mm 0mm;" align="justify"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">of Human Rights has been extensive, stating, for example: "…</span> <span style="font-size: 11pt;"><em>the Court has established that for a remedy to be effective, it is not sufficient that it is provided for by the Constitution or the law, or that it is formally admissible; rather, it must be truly suitable to establish whether a human rights violation has occurred and to provide what is necessary to remedy it. Remedies that, due to the general conditions of the country or even due to the particular circumstances of a given case, prove to be illusory cannot be considered effective. By virtue of the foregoing, the State has the responsibility not only to design and normatively enshrine an effective remedy but also to ensure the proper application of said remedy by its judicial authorities" </em></span><span style="font-size: 12pt;">(<span style="font-size: 12pt;">IACHR Court. </span></span><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"> <em>Case of Liakat Ali Alibux Vs. Suriname</em></span></span><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 30, 2014. Paragraph 116)</span></span><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">. In any case, it is reiterated that here there was a debate and the statute of limitations has not been raised, which, in the civil sphere, cannot be applied ex officio, therefore, for these reasons, the matter must be analyzed. </span></span><span class="example1 304901" style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><strong>(C) </strong></span><span style="font-size: 12pt;"><u>Regarding the content of the decision</u></span> <span style="font-size: 12pt;"><u>on the merits and the classification of the types of civil liability</u></span></span><span style="font-size: 12pt;"><span class="example1 304901" style="font-size: 12pt;">:</span> From recital (considerando) VII of the judgment onward, the civil matter is referred to in the following terms, which must be transcribed in order to determine the legal basis on which the civil claim was granted (causal link, type of compensation, amounts, obligated parties, etc.): «</span><span style="font-size: 11pt;"><em>The aggrieved party and direct victim in this case </em></span><span style="font-size: 11pt;"><em>[Name 005]</em></span><span style="font-size: 11pt;"><em>. filed a Civil Action </em></span> <span style="font-size: 11pt;">(…)</span><span style="font-size: 11pt;"><em>, civilly suing </em></span><span style="font-size: 11pt;"><em>[Name 001]</em></span><span style="font-size: 11pt;"><em> for </em></span><span style="font-size: 11pt;"><strong><em>direct subjective liability, and Temporalities of the Archdiocese of San José for indirect subjective liability </em></strong></span><span style="font-size: 11pt;">(…)</span> <span style="font-size: 11pt;"><em> This Court finds the causal link between the harmful act, the civilly intentional conduct of </em></span><span style="font-size: 11pt;"><em>[Name 001]</em></span><span style="font-size: 11pt;"><em> and the pernicious result to the sexual integrity of the aggrieved party </em></span><span style="font-size: 11pt;">(…)</span><span style="font-size: 11pt;"><em>. The moral damages (daño moral) suffered were proven through the declaration of the aggrieved party, it being evident from his declaration that in the year two thousand five, when he was 16 years old, he experienced a series of family problems that affected his emotional stability and forced him to seek help to ensure his subsistence and to be able to continue his basic education studies and, particularly, to prepare for the national-level mathematics olympics, these elements being what determined him to leave his home and go to live with Father </em></span><span style="font-size: 11pt;"><em>[Name 001]</em></span><span style="font-size: 11pt;"><em>, who at that time offered him sustenance and the study facilities he required, for which reason he came to love him like a father, calling him “DA</em></span><span style="font-size: 11pt;"><strong><em>”</em></strong></span><span style="font-size: 11pt;"><em>. The civil claimant stated in his declaration that the accused represented a figure of respect and admiration, not only for the help he provided but also for what he observed in him at that time. Nevertheless, despite these feelings, the accused here proceeded to touch him abusively on his private parts on at least two occasions while they slept together, thus violating his sexual integrity. These actions caused him great pain and disappointment because the figure of spiritual, emotional, and economic support he had rested exclusively on the Civilly Sued Party here, who clearly took advantage of his vulnerability and absence of paternal figures, which also caused a significant spiritual deterioration since the figure of the priesthood ceased to be well perceived by the aggrieved party, who, because of this, was isolated and attacked with insults on social media. In addition to the fact that he did not have the economic or other means to distance himself from his aggressor, which represented impacts on his psychological state subject to compensation according to the liability established in Article 1045 of the Civil Code for intentional actions that cause harm to another. As stipulated in jurisprudence, Criminal Courts are obliged to break down and determine the amounts for which judgments are entered, in order to prevent victims from having to resort to civil courts to estimate the damages. It is therefore that the Court must grant the item of moral damages in the amount of five million colones, an amount considered consistent with the victim's claim at the time of filing the lawsuit and the facts that were proven in this judgment, which correspond to two crimes of sexual abuse against a minor; although the amount granted cannot compensate for the harm caused by </em></span><span style="font-size: 11pt;"><em>[Name 001]</em></span><span style="font-size: 11pt;"> <em> to the detriment of </em></span><span style="font-size: 11pt;"><em>[Name 005]</em></span><span style="font-size: 11pt;"><em>. the Civil Action for Damages is considered legitimate and admissible in order to somehow compensate for the pain and suffering caused to the Civil Claimant </em></span><span style="font-size: 11pt;">(…) </span> <span style="font-size: 11pt;"><em>Said sum is established symbolically, as this Court does not intend for this amount to resolve the pain suffered by the claimant. According to Decree on Attorneys' and Notaries' Fees number 32493, in criminal matters with a civil action, the calculation provided by Article 18 must be followed, which states that when the amount is equal to or less than twenty-five million colones, the payment of fees shall be twenty percent. Thus, twenty percent of the indicated sum is ONE MILLION COLONES, an amount that the defendant must pay to the claimant for personal legal costs related to the civil action filed, in addition to the amount for which judgment was entered against him.</em></span><span style="font-size: 12pt;">» (Cf. judgment, page 92 and following of the pdf).</span> <span style="font-size: 12pt;">This portion of the decision is not being challenged, meaning that the civil judgment against the defendant, personally, is final because, in addition to that, this chamber does not find any defect in the reasoning, since the liability emerges from the proven fact and the applicable law is correct. <span class="example1 304901" style="font-size: 12pt;">It is worth highlighting, however, that at the beginning of the transcription, it is indicated that the lawsuit against Temporalities of the Archdiocese of San José was brought as a claim for subjective liability for fault </span></span><span class="example1 304901" style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><em>in eligiendo</em></span><span style="font-size: 12pt;"> and </span><span style="font-size: 12pt;"><em>in vigilando</em></span><span style="font-size: 12pt;">, and not alleging the theory of risk or strict liability (responsabilidad civil objetiva). Although nothing prevents, by virtue of the principle </span><span style="font-size: 12pt;"><em>iura novit curia</em></span><span style="font-size: 12pt;"> (which also forms part of due process: see vote number 2010-4587 of the Constitutional Chamber), a court from correctly applying the law that corresponds to a case, even if it is not the one invoked, the foregoing is noted to make the distinction between the types of liability, which the appellant does not make. In matters of civil liability, the doctrine distinguishes two types:</span> contractual and non-contractual (extracontractual). The first arises from express agreements or legal relationships. The second, from acts or omissions in social life. These can be intentional (dolosos) (that is, desired), negligent (culposos) (that is, lacking the duty of care), or stipulated by law, independently of whether there is intent (dolo) or fault (culpa), or whether they are lawful or unlawful acts, since this is based on the creation of risks (for example, Article 1048 of the Civil Code) or on obtaining profits that those who promote them must bear (strict liability (responsabilidad objetiva)). Thus, non-contractual civil liability can be </span><span style="font-size: 12pt;"><strong>subjective</strong></span><span style="font-size: 12pt;"> (based on intent (dolo) or fault (culpa)) and this can be either for one's own act or direct, or for the act of another or indirect (fault </span><span style="font-size: 12pt;"><em>in eligiendo</em></span><span style="font-size: 12pt;"> or fault </span><span style="font-size: 12pt;"><em>in vigilando</em></span><span style="font-size: 12pt;">). The latter is provided for in numeral 1048 of the Civil Code, third paragraph, which states:</span><span style="font-size: 11pt;"><em> "He who entrusts a person with the performance of one or many acts is obliged to choose a person fit to execute them and to supervise the execution within the limits of the diligence of a good father of a family; and if he neglects these duties, he shall be jointly and severally liable for the damages that his appointee causes to a third party through an action violating the rights of another, committed with malicious intent or through negligence in the performance of his functions, unless that action could not have been avoided despite all due diligence in supervising." </em></span><span style="font-size: 12pt;">This is different from the other type of liability, that is, the </span><span style="font-size: 12pt;"><strong>strict liability (objetiva) </strong></span><span style="font-size: 12pt;">which, in addition to the need for a specific legal provision (for example, in Article 1048, paragraph 5 of the Civil Code; in Article 32 of the Law on effective consumer protection and defense, contained in Article 32; numeral 197 of the Traffic Law, or in Articles 190 and following of the General Law of Public Administration), the criterion for imputation involves analyzing three requirements: a) the use of things that entail danger or risk; b) causing damage of a pecuniary nature; c) establishing the relationship or causal link between the fact and the damage. This, in turn, can be principal or sole, or joint and several.</span></span></p> </p> The judgment on the merits already mentioned initially indicates that the plaintiff invoked indirect subjective liability for fault due to negligence in supervision (*in vigilando*) or in selection (*in eligiendo*) **40** Note: The provided text ends mid-sentence with "plaintiff" and "invoked indirect subjective liability...". The layout and numbering (60 and 40) are preserved as in the original text block, though the image reference and some formatting (like the ragged text alignment) have been transcribed as they appear in the source code structure.

Article 19.—Funds generated via Article 43 of the Forestry Law No. 7575. In accordance with Article 43 of the Forestry Law (Ley Forestal) and considering the regime of easements (servidumbre) affected by the operation of the Diquís Hydroelectric Project PH, which, when affected by construction works and subsequent flooding of the reservoir area, have led to a loss of forest cover (cobertura boscosa), and therefore to a loss of PS and PSA, resources must be allocated and quantified to compensate for the loss of coverage in ecosystems that provide environmental services. Therefore, the Project must assume said costs, for which the budgets submitted to SETENA must include a similar calculation as Table 7 with the detail of the corresponding allocation values, which must be adjusted over time, and which will increase the value of the PSA on State Heritage (PSAH) of Private Natural Reserve. Said contribution will become effective at the time of issuing the Land-Use Change (Cambio de Uso del Suelo) Permit and a Guarantee of Compliance for said item must be submitted together with requirements such as the Construction (Obras) Permit. The guarantee of compliance for this item will also be released until the PSAH payment is verified. Once the amount corresponding to the PSA by time of loss of forest cover is paid, the guarantee of compliance for this item will be released.

Nonetheless, later on, when referring to the link of the third-party civil defendant₂₀, regarding the invoked joint and several liability, it does so in the following terms:₀ 1er trim. 2do 3er trim. 4to «…*the claim was filed jointly and severally against Temporalidades de la Arquidiócesis de San José, **considering the existence of strict liability (responsabilidad objetiva)** derived from the fact that [Name 001], at the time he commits the acts, held the position of parish priest of the [Name 080] **and performs the acts taking advantage of his investiture, an element that generates strict liability due to the accused's belonging to the church and the tasks carried out by it, as well as the risks generated by its activities**. In this particular case, this Court has deemed it pertinent to admit the claim for joint and several civil liability against Temporalidades de la Arquidiócesis de San José filed by the Civil Plaintiff, as it concerns **indirect or in vigilando fault-based liability (responsabilidad subjetiva indirecta o in vigilando)** corresponding to **liability for the acts of another (responsabilidad por hechos ajeno)**, that is, the conduct generating civil liability is carried out by a subject other than the one held responsible for the action, which is assumed due to the responsibility we all have to watch over the persons, animals, or things that depend on us and to be cautious in the choice of those we wish to utilize. Hence, it can be concluded that when there is a lack of, or insufficient, supervision of persons in our charge, liability is incurred, just as happened in the case before us. For, in the adversarial proceedings, it was evidenced through the statements of [Name 038] and the church members themselves, Father [Name 079] and [Name 078], **the insufficient supervision exercised over the acts of the civil defendant [Name 001]**, acts which were even known to the Church before July 10, 2014, without any actions being taken to control what was happening and even to remedy the situations that occurred, and, conversely, a position was taken to silence what was known under the doctrine of forgiveness that governs the Catholic Church, with Father [Name 079] even stating that **"nobody divulges their sins"**, statements that evidence the church's knowledge of what was happening regarding the acts of the civil defendant, it being inferred from the adversarial proceedings that visits were made to him and he was even exposed at a meeting attended by several parishioners, all these situations being known by the very top leader of the Church, without concrete actions being taken regarding his responsibility as parish priest before the members of the Catholic community who participated in its activities, an omission that is in no way justifiable, since, at the time what happened was disclosed by the media, clear and immediate actions were taken to avoid incurring greater risks that could have been timely resolved by **those responsible for supervising the acts of the accused priest**, especially considering that the accredited events occurred within the facilities of the Church of los Guidos itself. Given such omissions **in their duty of supervision (deber de vigilancia)**, this Court considers it legitimate to order Temporalidades de la Arquidiócesis de San José to pay the amounts awarded to the plaintiff jointly and severally. The foregoing by virtue of the fact that the Court established, according to the statements of Father [Name 079], that the defendant was created with the intention of being able to manage assets on behalf of the Church, with the defendant appearing as part of the Church's activity on an economic plane, it being clear that they function as an Economic Interest Group in which the different activities are recorded in an organized and functional manner, without the existing link between the two being able to be eliminated, a link which is also accredited by the fact that, on the date of the events, the civil defendant [Name 001] received a salary from the CCSS payroll, linked to Temporalidades de la Arquidiócesis de San José, so the plea of lack of passive standing must be rejected and Temporalidades de la Arquidiócesis de San José must be held as a civil defendant, and it must assume civil liability jointly and severally.*» (Cf. judgment, civil recital; emphasis supplied). From the foregoing transcription, it can be seen that the judgment uses the terms strict liability and fault-based liability for fault *in eligiendo or in vigilando* interchangeably, without them being synonyms. The appellant does the same. However, the content of the ruling is emphatic in attributing the joint and several liability of the Catholic Church for the lack of supervision of the priest, an aspect that is important to establish from now on, insofar as it coincides with the approach of the civil plaintiff and because there is no express normative provision that stipulates the strict liability (for created risk or obtained profit) of either the Catholic Church in general or Temporalidades de la Arquidiócesis de San José in particular. **(D)** <u>On the passive standing of the third-party civilly liable party</u>. Now, the bulk of the appellant's argument focuses, firstly, on establishing that Temporalidades de la Arquidiócesis de San José is not equivalent to the Catholic Church and that said legal entity has no relationship with the accused insofar as he acts as a priest. That is, the passive standing of his client to face the joint and several compensation that was set is questioned. To address the issue, it is fitting to outline the legal particularities and background surrounding the matter. **(D.1) Applicable legal framework.** Costa Rica is one of the few countries in the world whose constitutional text establishes a link between the State and a religion, in this case the Catholic one, per numeral 75. By virtue of this link (which does not date from the Constitution in force in 1949 but extends further back in time), there have been diplomatic relations with The Vatican and a Concordat was signed on October 7, 1852, ratified by Law No. 24 of December 2, 1852, and repealed less than two years later, by Law No. 45 of July 28, 1884, a product of the liberal and anticlerical ideas of the time. This context makes it easier to understand the issuance of Law No. 6062 of July 18, 1977, which provides: “*Article 1.- **Legal personality (personería jurídica) is granted to the National Episcopal Conference of Costa Rica (Conferencia Episcopal Nacional de Costa Rica), as well as to each of the Dioceses or Ecclesiastical Jurisdictions** into which the national territory is divided, for now that of San José, Alajuela, Tilarán, San Isidro de El General and Limón, and to those that may be established in the future. **Article 2.- Both the Conference, as well as each of the Dioceses, shall have full legal capacity to perform all kinds of acts and contracts within the framework of the laws in force.** Article 3.- The representative of the* *Conference shall be its President, elected by the members of the Conference itself, in accordance with its own statutes, and that of each Diocese shall be its corresponding diocesan bishop. All of them shall have the powers determined by article one thousand two hundred fifty-three of the Civil Code, without limitations of any kind. Those representatives shall be elected without a fixed term and their appointment may be revoked, at any time, by whoever made it. Such representatives must register in the Persons Section of the Public Registry, with formal protocolization of the agreement of their appointment. Article 4.- Likewise, both the Conference and each of the country's Dioceses may appoint all kinds of attorneys-in-fact with the powers they deem necessary to confer upon them in the act of their appointment. Article 5.- For legal purposes, the Conference must keep a minute book, which shall be legalized by the Books Department of the Directorate General of Direct Taxation of the Ministry of Finance. Article 6.- It shall become effective upon its publication. Transitory: The powers of attorney currently registered to represent the National Episcopal Conference of Costa Rica, or the different Dioceses constituted under Executive Decree number sixteen of May seventh, nineteen hundred seventy, shall continue to have legal effects as long as they are not modified or revoked.*” (bold type supplied). Note that, without being a state entity nor a commercial entity or one of another nature (association, foundation, etc.), the cited regulations endowed it with legal personality, under the name of the National Episcopal Conference of Costa Rica, and did the same with each of the dioceses or territories into which the ecclesiastical jurisdiction in a country is divided. In addition to this, the law was regulated by the Executive Branch and in the *Regulation that Develops the Scope of the law granting legal personality to the Episcopal Conference and Ecclesiastical Dioceses specifying the situation of the organs that comprise the Catholic Church* Executive Decree number 32370 effective since May 19, 2005, it is established:

«*Considering:* *1.- That by Law No. 6062, legal personality was granted to the National Episcopal Conference of Costa Rica, as well as to each of the Dioceses or Ecclesiastical Jurisdictions, conferring upon them for this purpose full legal capacity.* *2.- That although Law 6062 granted legal personality to the National* *Episcopal Conference of Costa Rica, as well as to each of the Dioceses or Ecclesiastical Jurisdictions into which the National territory is divided, **it neither provided for nor regulated the same regarding the rest of the internal organization of the Catholic Church in the country**, nor its projection in the national legal system.* *3.- That it is the function of the Ministry of Foreign Affairs and Worship, according to Executive Decree No. 19561-RE, of March 9, 1990, "to promote harmony between civil and ecclesiastical authorities" and "to protect the free exercise of Catholic worship and any other that does not oppose universal morality and good customs";* *4.- That canon 369 of the Code of Canon Law states: "A diocese is a portion of the people of God which is entrusted to a Bishop for his pastoral care with the cooperation of the presbyterate, so that, adhering to its pastor and gathered by him in the Holy Spirit through the Gospel and the Eucharist, it constitutes a particular church in which the one, holy, catholic, and apostolic Church of Christ truly exists and functions"; 5.- That Canon 447 of the Code of Canon Law also states: "The Episcopal Conference, a permanent institution, is the assembly of the Bishops of a nation or a particular territory who jointly exercise certain pastoral functions on behalf of the Christian faithful of their territory to promote, in accordance with the norm of law, the greater good which the church offers to humanity, especially through forms and programs of the apostolate fittingly adapted to the circumstances of time and place".* *6.- That **the Costa Rican State recognizes that the structure and organization of the Catholic Church are very complex** and has the intention of achieving harmony between the merely material and the spiritual.* *7.- That the Office of the Attorney General of the Republic, in pronouncement OJ-076-1999, of June 23, 1999, stated regarding its nature that it is a sui generis moral person and that "Within the civil order, the Catholic Church and the temporalities (temporalidades), due to their special nature, do not constitute civil partnerships or associations; however, they are recognized as a legal person through the universal and international recognition the Church enjoys. That recognition is specified in Costa Rica through a series of laws and decrees which gave rise to the existence of a legal entity denominated 'Temporalidades de la Iglesia'; through which the Catholic Church acts",* *8.- That the Ministry of Foreign Affairs and Worship must also "regulate the legal status of religious entities, without affecting the autonomy, their internal organization, and the rights they are entitled to for the free exercise of their activities", therefore in order to complete the legal provisions to harmonize them with the rules and norms governing the Catholic Church. **Therefore**,* *DECREES:* *Article 1.- This Regulation aims to develop the scope of Law No. 6062, of July 8, 1977, specifying the legal situation of all the organs that comprise the Catholic Church, respecting ecclesiastical regulations and the free exercise of its activities, both in the spiritual and temporal orders.* *Article 2.- For the purposes of this Regulation, **the following are considered part of the Catholic Church in Costa Rica**:* *1. Canonical Legal Persons:* a. ***National Episcopal Conference (Conferencia Episcopal Nacional)**,* b. ***Dioceses or particular Churches (Diócesis o Iglesias particulares)**,* c. *Cathedral Church (Iglesia Catedral),* d. ***Parishes (Parroquias)** and Quasi-Parishes (Cuasi-Parroquias),* e. *Rectorates (Rectorías),* f. *Chaplaincies (Capellanías) and* g. *Any other public juridical person of the Church formed according to the Code of Canon Law of the Catholic Church.* *2.* Church Hierarchy:

a. **Bishops** (Obispos) (whether diocesan, auxiliary or coadjutor, and emeriti), b. **Presbyters** (Presbíteros) and c. Deacons (Diáconos).

3. Other groups or those of Consecrated Life:

a. Religious institutes (Institutos religiosos), b. Secular institutes (Institutos seculares), c. Societies of Apostolic Life (Sociedades de Vida Apostólica).

Article 3.- The internal law of the Catholic Church is understood as the set of provisions and norms that govern the internal organization and activities of said Church, which include: the Code of Canon Law (Código de Derecho Canónico), Universal Ecclesiastical Law (Derecho Eclesiástico Universal), and Particular Ecclesiastical Law (Derecho Eclesiástico Particular). All of them shall have the value and scope that the Catholic Church itself confers upon them and shall produce legal effects for the subjects and the relationships regulated by them.

Article 4.- The National Episcopal Conference of Costa Rica (Conferencia Episcopal Nacional de Costa Rica), as well as each of the dioceses (diócesis), is recognized as having the faculty to issue the directives, policies, and regulations that will govern the organs and institutions that respectively comprise them, as well as the definition of their competencies and functional structure.

Article 5.- For the fulfillment of its purposes, the Catholic Church may adopt the institutional organization provided for in its internal ordering, as well as use the legal forms authorized in common legislation.

Article 6.- It shall take effect upon its publication. » (Highlighting supplied).

This Regulation is relevant because, in the first place, it establishes a link between the Catholic Church, the Episcopal Conference, the dioceses, the parishes, the bishops, and the presbyters, interconnecting them all to the same entity and recognizing the complex nature of the organization. In the second term, it legally recognizes, with civil and national effects, the value and scope that the internal religious provisions establish specifically regarding Ecclesiastical Law (universal and particular) and the Code of Canon Law (Código de Derecho Canónico). In this latter normative body are located these canons: “391 §1. It is for the diocesan Bishop to govern the particular church entrusted to him with legislative, executive, and judicial power according to the norm of law. §2. The Bishop exercises legislative power personally; he exercises executive power either personally or through Vicars general or episcopal, according to the norm of law; judicial power both personally and through the judicial Vicar and judges, according to the norm of law. 392 §1. Since he must defend the unity of the universal Church, the Bishop is to promote the discipline which is common to the entire Church, and therefore to insist upon the observance of all ecclesiastical laws. §2. He is to exercise vigilance so that abuses do not creep into ecclesiastical discipline, especially concerning the ministry of the word, the celebration of the sacraments and sacramentals, the worship of God and of the Saints, and the administration of goods. 393 The diocesan Bishop represents the diocese in all juridic affairs of the same (…) 448 §1. As a general rule, the Episcopal Conference comprises the prelates of all the particular churches of a same nation, (…) 449 §1. It is exclusively for the supreme authority of the Church, having heard the interested Bishops, to erect, suppress, or change Episcopal Conferences. §2. An Episcopal Conference legitimately erected has juridic personality in virtue of the law itself. 450 §1. By the law itself, membership in the Episcopal Conference belongs to all diocesan Bishops of the territory and those equivalent to them in law, as well as coadjutor Bishops, auxiliary Bishops, and other titular Bishops who, by charge of the Holy See or of the Episcopal Conference, fulfill a special function in the same territory; Ordinaries of another rite may also be invited, but with a consultative vote only, unless the statutes of the Episcopal Conference determine otherwise. (…) 451 Each Episcopal Conference is to draw up its own statutes, to be reviewed by the Apostolic See, in which, among other things, norms are to be established for the plenary assemblies of the Conference, the permanent council of Bishops, and the general secretariat of the Conference, and other offices and commissions are also to be constituted which, in the judgment of the Conference, can contribute more effectively to achieving its end. 515 §1. A parish is a certain community of the Christian faithful stably constituted in a particular church, whose pastoral care is entrusted to a pastor (párroco) as its proper pastor, under the authority of the diocesan Bishop. §2. It is exclusively for the diocesan Bishop to erect, suppress, or alter parishes; he is neither to erect, suppress, nor alter them notably without having heard the presbyteral council. §3. A legitimately erected parish possesses juridic personality in virtue of the law itself. (…) 523 (…) the provision of the office of pastor belongs to the diocesan Bishop, by free conferral, unless someone enjoys the right of presentation or election. 524 The diocesan Bishop must entrust the parish that has become vacant to the one whom, all the circumstances having been weighed, he considers suitable to exercise the pastoral care of the parish, setting aside any preference for persons; to judge suitability, he is to hear the archpriest and conduct appropriate investigations, having sought the opinion, if the case warrants it, of certain presbyters and lay Christian faithful.” From the transcribed text, it is worth highlighting, then, the equivalence (partial, although for our purposes minimally necessary) made there between the institutions called the local Catholic Church, the Episcopal Conference, Bishops, and Presbyters, and the level of obedience and dependence that the latter have with respect to the former, as well as the fact that the cited canons grant duties of selection and vigilance to the bishops regarding the pastors who require the status of presbyters to exercise their function and recognize the legal personhood (personería jurídica) of both in representation of the Catholic Church within the framework of their competencies. This is therefore relevant both for referencing the appellant's arguments regarding the different legal names and for legally deriving the obligation of selection and vigilance established by the civil law originally cited. In a similar sense, the Office of the Attorney General of the Republic (Procuraduría General de la República), upon issuing opinion No. 81 of April 13, 2011, in which it analyzed the legal regime of the Catholic Church and its distinct organs in Costa Rica, referred to the scope of the obligations in the following terms: «5-. The Episcopal Conference is a collegial body, composed of the Bishops of a Nation, organized to exercise pastoral functions regarding the faithful of that Nation, acting essentially through forms of apostolate. That organization is governed by Canon Law and the statutes it provides for itself, which are approved ultimately by the Apostolic See. 6-. The juridic personality of the Episcopal Conference is granted by canon 449.2 of the Code of Canon Law and in the Costa Rican case has been, furthermore, recognized by Law No. 6062 of July 18, 1977, developed by Executive Decree No. 32370 of May 2, 2005. A norm that expressly recognizes that ecclesiastical persons are "canonical legal persons" (personas jurídicas canónicas), article 2. Juridic personality that is different from that of a private organization.» To reach those conclusions, it based itself on the following reasoning: «…the Episcopal Conference, we find that it originates in Canon Law. According to canon 447, "it is the assembly of the Bishops of a certain nation or territory, who jointly exercise certain pastoral functions for the faithful of their territory, to promote, according to the norm of law, that greater good which the Church offers to humanity, especially through forms and methods of apostolate fittingly adapted to the particular circumstances of time and place." According to which, that collegial body has pastoral functions and its purpose is the promotion of the Church through the apostolate. Erecting, suppressing, or changing an Episcopal Conference is the competence of the supreme authority of the Church, canon 449, paragraph 1. The Conference is governed by its own statutes, which are reviewed by the Apostolic See or Holy See, canon 451. It is these statutes that regulate the collegial body and the possibility of constituting commissions and other organs, including matters concerning its leadership (president, vice-president, general secretary). The general decrees that the Conference issues are subject to the review of the Apostolic See for their efficacy. These provisions reaffirm that one is not dealing with a regulation of internal law. The juridic personality of the Conference arises from Canon Law itself, according to the provision in canon 449.2. This does not exclude national law from granting it recognition. This is the case of the provision in Law No. 6062 of July 18, 1977, which grants legal personhood to the Conference and to the Ecclesiastical Dioceses. According to said Law, legal personhood is granted to both the Conference and each of the Dioceses or Ecclesiastical Jurisdictions into which the national territory is divided. In reality, if we take into account that what is attributed allows both the Conference and each Diocese to have juridic capacity to carry out any class of acts and contracts within the Costa Rican legal system, article 2 of the Law, it is fitting to consider that what the law attributes is juridic personality to the Conference. The law establishes that the representative of the Conference shall be elected according to the statutes and shall have the powers that article 1253 of the Civil Code determines, without limitations of any kind. Executive Decree No. 32370 of May 2, 2005, Regulation that Develops the Scope of the law granting legal personhood to the Episcopal Conference and Ecclesiastical Dioceses, pointing out the situation of the organs that make up the Catholic Church, starts from the premise that the Law has granted juridic personality to the Conference and develops that personality based on the recognition of what is established in Canon Law. Therefore, the regulation comprised respects "ecclesiastical norms and the free exercise of its activities, in the spiritual order as well as in the temporal", article 1. In that sense, the Episcopal Conference, the dioceses or particular churches, the parishes and quasi-parishes, the Cathedral Church, the rectorates and chaplaincies are considered "canonical legal persons", article 2. So it is not a personality of Private Law. Moreover, it is recognized as internal law of the Catholic Church, Article 3, the set of provisions and norms that govern the internal organization and activities of said Church, which include: the Code of Canon Law, Universal Ecclesiastical Law and Particular Ecclesiastical Law. Provisions that govern the subjects and relationships proper to the Catholic Church. Notwithstanding, it is empowered in article 5 to: "Article 5.—For the fulfillment of its purposes, the Catholic Church may adopt the institutional organization provided for in its internal ordering, as well as use the legal forms authorized in common legislation". It follows from the foregoing that the national legal system has recognized that the juridic personality of the Episcopal Conference is governed by special provisions, which are not those of Civil Law. This condition was pointed out by the Office of the Attorney General of the Republic in Legal Opinion OJ-076-1999 of June 23, 1999, in which it was indicated, referring generally to the Catholic Church: "Within the civil legal system, the Catholic Church and the temporalities (Temporalidades), due to their special nature, do not constitute civil societies or associations; however, they are recognized as a legal person through the universal and international recognition that the Church enjoys. That recognition takes concrete form in Costa Rica, through a series of laws and decrees that originated the existence of a legal entity called 'Temporalities of the Church' through which the Catholic Church will act".» (Highlighting supplied). Note how this criterion of the state legal entity equates, for the purposes of general representation and within the framework of their competencies, the different denominations (Temporalities of the Archdiocese of San José, Episcopal Conference, Catholic Church, etc.) and, according to what has been set forth, endows them with "civil" juridical personality (since the latter recognizes the canonical one). In a similar sense, BRENES ÁLVAREZ (Pedro) pronounces. La condición jurídica de la Iglesia Católica en Costa Rica. Universidad de Costa Rica. Degree thesis to obtain the title of Licentiate in Law, 1976. Although it was established there that the remuneration of priests came from the faithful, was not salary-based, and, consequently, they were not workers and there was no labor relationship between them and the Episcopal Conference, it did so for the purposes of article 75 of the Law on Worker Protection, a topic that lacks importance here and that, by the way, is also not binding on this authority, given the principle of constitutional independence, with constitutional and conventional standing. Consequently, the fact that jurisdictional processes exist in which it is discussed whether a priest is or is not an employee of said Conference for other purposes (payment of social charges) neither generates lis pendens, prejudiciality or res judicata, nor obligates this chamber to adhere to said criterion. For all of the foregoing, the criterion of the appellant that its represented party lacks standing to intervene in the process is not correct, since, as the superior of the priest, who was performing parochial functions, and said priest being chosen by the bishop, the latter and the Episcopal Conference, the Dioceses or the Temporalities (all figures with canonical juridic personality recognized in civil law) are responsible for the non-observance of the duties of vigilance or selection incumbent upon them. (D.2) Doctrine of lifting the corporate veil. In any case, what the representatives of the civil defendant are attempting is to interpose the veil of a legal person (Temporalities of the Archdiocese of San José, Catholic Church, Episcopal Conference, Bishops, etc.) to avoid being held responsible (but yet obtain the benefits, viewed civilly and not from the spiritual plane, such as representation, obedience, etc.) for the natural persons (priests, presbyters, pastors, etc.) through whom they act. Therefore, our legislation authorizes the lifting of the corporate veil, so that whoever attempts to benefit improperly from it does not achieve their purpose. If this is so in the face of formally constituted civil legal persons, it applies, with parity of reason, to the organization of the Catholic Church because it is authorized by articles 20, 21, and 22 of the Civil Code, which establish: "Article 20: Acts performed under the protection of the text of a norm, which pursue a result prohibited by the legal system, or contrary to it, are considered executed in fraud of law and will not impede the proper application of the norm they had tried to evade. Article 21: Rights must be exercised in accordance with the requirements of good faith. Article 22: The law does not protect the abuse of a right or the antisocial exercise thereof. Every act or omission in a contract, which by the intention of its author, by its object, or by the circumstances in which it is performed, manifestly exceeds the normal limits of exercising a right, with damage to third parties or to the counterparty, shall give rise to the corresponding compensation and to the adoption of judicial or administrative measures that prevent the persistence of the abuse".

It concerns the theory of piercing the corporate veil and "Consists of the possibility for the adjudicator to determine who lies behind the legal entity. It seeks to resolve situations of legal significance not through the legal entity but through the real subjects who effectively act under that guise. Basically, it has been used in contractual breaches, acts of unfair competition, fraud on the law (fraude de ley) —particularly in tax matters—, fraudulent injury to the detriment of a third party (daño fraudulento en perjuicio de tercero), and in the bankruptcies of corporations (...) It is observed basically in the jurisprudential treatment in labor matters when resolving on the true employment relationship (contrato realidad) and determining the true worker-employer relationship. At the legislative level in tax law it is used particularly to determine the obligor and prevent the fragmentation of capital. In the recent Consumer Protection and Defense Law it allows the consumer to know the producer". First Chamber of the Supreme Court of Justice, vote number 128-F of 14:40 hours on December 16, 1998 (emphasis supplied). Note that if, for all purposes, the Catholic Church, the Temporalidades de la Arquidiócesis de San José, the Episcopal Conference, or the bishops use their parish priests to be represented, those denominations could hardly claim they lack responsibility for the damages these inflict on third parties.

(D.3) Background. In addition to the foregoing, although without references to those provisions, other courts have already established the responsibility that falls to Temporalidades de la Arquidiócesis de San José (name under which said organization operates, for civil purposes, in "material" matters). See that the Third Chamber, through vote number <u>2013-371</u> (J.M. Arroyo, C. Chinchilla, M. Pereira, R. Sanabria and J. Ramírez) declared inadmissible, for being time-barred, the cassation appeal filed against the vote of the Criminal Sentencing Appeals Court of the Second Judicial Circuit of San José <u>number 2012-2411</u> (L. Murillo, I. Estrada and H. Ulloa). In the latter, a case of similar characteristics was heard (sexual, in which Temporalidades de la Arquidiócesis de San José was held jointly and severally liable, as a result of tort liability). Due to the similarity of circumstances and because the arguments presented are shared by this chamber, in order to avoid repetition, we proceed to cite said precedent, noting that the transcription is extensive but necessary, given the controversial nature of the topic: «*ii) Nature of the ecclesial function and its significance in the social sphere:* Since its origins, the Catholic Church has had an evangelizing and guiding function in social ethics that has been maintained over the centuries. It is clear that the Church has been an institution with a great presence (…) whose activity in the political and social spheres has gone hand in hand with state activity, to the point that at some point there has been talk of a binomial between Church and State. While it is true that the Costa Rican State has opted for a tolerant model regarding freedom of worship allowing citizens to choose and profess other beliefs, the truth is that it also declares the "Roman Catholic Apostolic Religion" as the religion of the State, a provision that has constitutional roots (Article 75 of the Political Constitution). Thus, the Church's activity transcends to the plane of social morality to the point that, in the popular conception of the faithful, the Church exercises not only a guiding mission, but it is involved in an exemplary duty for society. Priests and persons who exercise any ecclesial function that involves an interpersonal relationship, such as Ministers of the Eucharist or Catechesis, and any other educational work of religious and teaching content, must fulfill a sacred duty of ethical guidance and a function that transcends conduct in the sense that it is not solely on the purely individual plane, but they must constitute themselves as living examples of the morality that the same Church, through the centuries and since its founding, has maintained and preached. *iii) On the joint and several civil liability of the church:* The Church, as indicated, performs a service to the community of its faithful, a service in which it assumes a determined position before the people it congregates, due to the very commitment of developing its evangelizing mission, of social action, and in which it incorporates faithful to delegate to them some ecclesial functions, a selection that goes through the criteria of the priest, the maximum representative in the community, of the organizational structure of the Catholic Church and of the Archdiocese to which he belongs. While it is true that religious practice is, in essence, free and no one is obliged to participate in or attend religious ceremonies and services, when one does so because one professes and practices the faith, one accepts the structure and organization of the Church and trusts in the decisions of the priest as such, some of which he even takes in association with members of the community. Thus, *if for the proper development of the service it provides and the organization of its activities, the priest, but the Church in general, makes selections* of lay people or parishioners to assist with some tasks typical of the Church's own activities, *the one who selects them and who hierarchically presides over that structure of delegations, must respond with its patrimony for the damages caused by the designated and delegated persons, in the fulfillment of such tasks, taking advantage of the facilities that this selection of which they have been the object* presents to them, facilities that common parishioners do not have precisely because such selection is based on criteria of the priest and established by the Diocese or Archdiocese to which he belongs, all these activities being part of the development of the service provided by the Catholic Church. As in the case of educators in general, *the ecclesiastical authorities have responsibility precisely because of that delegation that exists from a superior authority to a third party with whom there is a relationship of trust, for the fulfillment of obligations that themselves involve an interpersonal relationship, of service to the Church as an Institution and that are functions closely related to the Magisterium of the Church (including figures who exercise an ecclesial function in general) and, therefore, find meaning only in it, as part of the development of its function in society and the community of the faithful. In certain areas, such as pastoral care for example, special emphasis must be placed on the fact that more than the subordination relationship between the agent who delegates and the direct active subject of the harmful act, what is at stake is that—independently of the subordination—there does exist the obligation to exercise special prudence in selecting and monitoring, since a neglect in such precautions entails the production or risk of harm, and with it, violation of the trust that the historical social position of the ecclesial entails for the faithful.* In other words, an element of special relevance is the credibility that prevails or must have prevailed on the part of the passive subject of harm or abuse and the religious establishment, especially when it is the Church itself that welcomes minors into its fold, for the purpose of having them perform functions within the liturgy itself or attend catechesis courses in general. In conclusion, the existence of an inherent joint and several civil liability can be established for the conduct of those who, by their position before the community, hold guidance positions, whether in the educational sphere or in the ecclesial and catechetical order. It is fundamental that such officials and guides must exercise greater tact and take all precautions that provide certainty that, in delegating their delicate teaching and moral and religious formation functions, they do not create a situation in which the rights of the students and the faithful are not duly guaranteed. This is true, and it is so with greater emphasis, when dealing with persons who, due to their condition as minors, are especially vulnerable, hence the activity itself is already risky for a minor in light of the interrelation that exists between adults who are considered figures of authority, exemplary and trustworthy, and minors who wish to profess their faith through religious activities directed and entrusted by such figures. *iv.- Of the specific case:* It is necessary to transcribe the reasons that the Court set forth in the judgment, and upon which it bases the civil liability of the Temporalidades de la Arquidiócesis: "With respect to the civil liability of Temporalidades Arquidiócesis de San José, which is the legal entity that represents the Catholic Church, its liability derives from the absence of due vigilance over the accused who was performing a role in ecclesial service, a duty that the hierarch of the church had (…) It is clear that the civil defendant A is not a remunerated employee of the church, legally represented by Temporalidades Arquidiócesis de San José, as throughout the debate the witnesses linked to the exercise of the Ministry of the Eucharist or the pastoral informed the Court that the position is meritorious and voluntary, the selection is made by the parish priest based on consultations he carries out with parishioners and on his own observation of the social conduct of the person interested in assuming the function, and that after the selection is made, the future Minister receives training and assumes a commitment of a spiritual nature to the Catholic Church, and that this commitment is renewed every three years by the priest, who has the power to dismiss anyone he does not consider worthy of the position. However, *the absence of remuneration does not release the Church as a legal entity from its responsibility to exercise due vigilance over these persons who perform a role in the evangelization function, since these Ministers have contact with parishioners who attend the church or who open the doors of their homes to receive communion, with the understanding that the Ministers of the Eucharist have the backing of the Church* (…) the absence of the expected zeal on the part of its hierarchy is evident, thereby incurring a fault in monitoring (culpa in vigilando) that in this case had a harmful consequence for the civil plaintiff (…) must be assumed jointly and severally between the Catholic Church represented by Temporalidades Arquidiócesis de San José (…) As already indicated, the Church as an Institution and as a religious authority, provides a service to the community of the faithful, which in this case turned out to be a favorable scenario for two determining facts to converge: first, an inadequate selection of a person who was not suitable to perform within the canons of the Church's service and second: a lack of vigilance over what those persons—by their position distinct from the rest of the parishioners, regarding access and knowledge of the management of places, ornaments, and other objects and provisions necessary for the different celebrations—were obliged to do within that framework, which caused abusive sexual acts to be committed to the detriment of the minor, inside the temple, in a precinct to which not all persons have common or easy access, an act committed by a parishioner who was performing a special position, by delegation, and to the detriment of a girl who was also beginning work as a committed young lay person, that is, two persons selected by the maximum local representative of the Church and in the performance of their own functions in the Church. The malice with which the accused acted is proven and, as the norm contains a reversal of the burden of proof, the only way to exclude responsibility is by demonstrating that said action could not have been avoided even with all due diligence to monitor or select, which throughout the adversarial proceedings and not even with the evidence received at this venue, could be established. It was taken as true, however, that in delegating functions, the priest, representative of the Church, did not select (by choosing) or control (by monitoring) adequately, and by those in charge, the tasks entrusted to the accused. Those tasks, of course, did not authorize nor include the sexual abuse of minors, but they occurred precisely because of the conditions given and the opportunity for relationship thanks to the performance of such functions, even making use of the moral authority that said functions gave them and the position of authority before a vulnerable person, such as a minor who was taking his first steps in the service, precisely, of the Church. The paradox is precisely that victim and victimizer were in such condition, because of the selection that a member of the structure of the Church, Arquidiócesis de San José, had made of them, which makes even clearer the attribution of the harm caused to the patrimony of that which stands as the juridical and patrimonial head, so to speak, of such organization, in this case, the Temporalidades de la Iglesia. (…) Not only Article 1048.3 of the Civil Code sustains this joint and several civil liability, since it closely links fault in monitoring (culpa in vigilando) with fault in selecting (culpa in eligendo), but also Article 106, subsection 3 of the Penal Code when it provides: 'The action of the participants in a punishable act is joint and several, as to civil liability. The following are equally jointly and severally obligated with the perpetrators of the punishable act, for the payment of damages and losses: …Natural and legal persons who own establishments of any nature, in which a punishable act is committed by their administrators, employees, and other workers in their service', a provision in which the Church is undoubtedly and with much more reason included, not only because of that relationship that exists between the Church as a legal entity and a dependent acting in its service, as the figure of the Minister of Communion turns out to be, but because in the catechetical order, the trust that society places in all its representatives prevails and carries specific weight, hence the reasoning that the Court gave to grant the civil compensatory action is not only in accordance with the legislation that regulates tort liability, but also, according to the considerations set forth, the Church is an entity that must respond civilly, so the objection of lack of passive procedural standing (falta de legitimación ad causam pasiva) could not prosper." (Some of the highlights are supplied; others inherent in the original text). From the entire panorama described above, it is extracted, then, that when the judgment on the merits analyzes evidence such as: (i) the function that the accused had as a result of which the contact with the offended party occurred (presbyter, parish priest, in whose functional exercise he provided care for his parishioners, including the affected party); (ii) the place where the events occurred (priest's house (casa cural)); (iii) the framework of tasks carried out by the complainant (assigned by the accused as part of the compensation for the help provided by his represented party); (iv) the link between the priest and the bishop and the civil defendant and the obligation of the latter to appoint the former based on suitability for the position and to ensure that he performed it in the same manner; and (v) the legal bond that, even in the records of the C.C.S.S., is described between the joint civil defendant and the accused, it does nothing but scrutinize that underlying relationship that gave rise to the obligation to indemnify. Note that this last aspect is one more piece of evidence, not the only one, nor does it intend, as the appealing party seems to understand, to establish an employment relationship, but only a legal bond of dependency. In that exercise, this chamber does not note any irregularity, whether factual or probative derivation, or of legal framing or improper application of norms. Therefore, the link between the joint civil defendant and the accused and between the latter and the affected party was demonstrated; the harmful act and the obligation to indemnify arise from the norms initially cited that stipulate, in the hierarch, the obligation to select and ensure the faithful execution of what was mandated. That is, reference is made to a fault in selecting (culpa in eligiendo) or fault in monitoring (culpa in vigilando) (which is indeed fault, although for the act of a third party, so vote 48-2008 of the First Chamber cited by the appealing party does not apply), even though the a quo partially referred to something else, so it is unnecessary to allude to issues of strict liability, risk, or profit. For all the foregoing, since no defect is noted in what was decided, the arguments must be rejected.

THEREFORE:

(1) The appeals filed by the presbyter [Name 012] attorney-in-fact of Temporalidades de la Arquidiócesis de San José and by attorney Fernando Arias Zúñiga, in his capacity as public defender of the accused, are declared without merit.

(2) Ex officio, the conviction handed down against [Name 001] for two crimes of simple sexual abuse against a minor to the detriment of [Name 005], for which a total sentence of six years' imprisonment was imposed (three for each offense), is revoked and, in its place, an acquittal is decreed due to extinction of the criminal action by prescription, leaving the cited sanction without effect.

(3) The appeal filed by attorney Claudia Villafuerte Orellana, representing the Public Prosecutor's Office (Ministerio Público), is partially granted. Consequently, the appealed judgment on the act accredited during 2013 to the detriment of [Name 003] is partially annulled, solely with respect to the legal classification and the penalty, and on both matters, a remand is ordered so that the court determines whether it is facing simple or aggravated sexual abuse against a person of legal age and the corresponding punitive amount. In all other respects (the determination of the act to the detriment of [Name 003], the declaration of civil liability, the precautionary measures, and costs), the prosecutor's appeal is rejected and the judgment remains unaltered.

NOTIFY.

</strong></span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 0mm 2.09mm 13mm;"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><strong><em>&nbsp;</em></strong></span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 0mm 2.01mm 0mm;" align="center"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><strong><em>Rosaura Chinchilla Calderón</em></strong></span> </span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 0mm 2.08mm 1mm;" align="center"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><em>&nbsp;</em></span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 0mm 2.01mm 1mm;" align="center"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><em>&nbsp;</em></span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 0mm 2.08mm 0mm;"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;"><strong><em>Patricia Vargas González&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Kathya Jiménez Fernández </em></strong></span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 0mm 2.01mm 1mm;" align="center"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">&nbsp;</span></span></p> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 0mm 1.02mm 0mm;" align="center"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">Judges of Appeal of Criminal Sentence</span></span></p> <div style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 0mm 0.00mm 0mm;" align="left"><span style="color: #010101; font-family: Arial; font-size: xx-small;"><span style="font-size: 9pt;"><em>Expediente: 14-002617-0994-PE (7)</em></span></span></div> <div style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 0mm 0.00mm 0mm;" align="left"><span style="color: #010101; font-family: Arial; font-size: xx-small;"><span style="font-size: 9pt;"><em>Defendant: </em></span><span style="font-size: 9pt;"><em>[Name 001]</em></span><span style="font-size: 9pt;"><em>&nbsp; </em></span></span></div> <div style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 0mm 0.00mm 0mm;" align="left"><span style="color: #010101; font-family: Arial; font-size: xx-small;"><span style="font-size: 9pt;"><em>Victim: Persons of legal age</em></span></span></div> <div style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 0mm 0.00mm 0mm;" align="left"><span style="color: #010101; font-family: Arial; font-size: xx-small;"><span style="font-size: 9pt;"><em>Crime: Violation and another</em></span></span></div> <div style="line-height: 108%;" align="left"><span style="color: #010101; font-family: Arial; font-size: xx-small;"><span style="font-size: 9pt;"><em>&nbsp;</em></span> <span style="font-size: 8pt;">&nbsp;&nbsp; </span></span></div> <p style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 0mm 4.17mm 0mm;"><span style="color: #010101; font-family: Arial; font-size: xx-small;"><span style="font-size: 9pt;"><strong><em>LQUIROSG</em></strong></span> </span></p> <div style="line-height: 108%;" align="left"><span style="color: #010101; font-family: Calibri; font-size: x-large;"><span style="font-size: 22pt;">&nbsp;</span></span></div> <div style="line-height: 108%;" align="left"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">&nbsp;</span></span></div> <div style="text-indent: 0mm; line-height: 108%; margin: 0.00mm 2mm 0.00mm 0mm;" align="center"><span style="color: #010101; font-family: Arial;"><span style="font-size: 12pt;">&nbsp;</span></span><span style="color: #010101; font-family: Arial; font-size: xx-small;"><span style="font-size: 8pt;"> <em>Expediente: 14-002617-0994-PE (7) - pág.: 2</em></span></span></div>

Resolución: 2021-0983 TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL. Segundo Circuito Judicial de San José. Goicoechea, a las ocho horas con veinte minutos del primero de julio de dos mil veintiuno.

RECURSOS DE APELACIÓN interpuestos en la presente causa seguida contra [Nombre 001], [...]; por el delito de VIOLACIÓN Y OTRO en perjuicio de PERSONAS MAYORES DE EDAD.

Intervienen en la decisión de los recursos, las juezas Rosaura Chinchilla Calderón; Patricia Vargas González y Kathya Jiménez Fernández. Se apersonaron en esta sede el presbítero [Nombre 012] y su apoderada la licenciada Vanessa Zúñiga Mora; el licenciado Fernando Arias Zúñiga, en calidad de defensor público del sindicado junto con este; la licenciada Claudia Villafuerte Orellana y el licenciado Carlos Meléndez Lugo, en representación del Ministerio Público y las licenciadas Carol Madrigal González y Yahaira Sibaja Peña, en su condición de abogadas de la Oficina de la Defensa Civil de la Víctima y,

RESULTANDO:

I.- Que mediante sentencia número 113-2021, de las nueve horas con treinta minutos del dieciocho de febrero de dos mil veintiuno, el Tribunal Penal del Tercer Circuito Judicial de San José, sede suroeste, Pavas, resolvió: "POR TANTO:

De conformidad con lo expuesto, reglas de la sana crítica racional y artículos 39, 41 de la Constitución Política; 1, 22, 30, 31, 45, 50, 71, 76, 103, 106, 161, 162 del Código Penal; 265, 334, 341, 346, 343, 349, 351, 356, 358, 363, 364, 365, 366, 367 a 375 del Código Procesal Penal. 1045 y 1048 del Código Civil y Reglas Vigentes sobre responsabilidad penal del Código Penal de 1941, este Tribunal POR UNANIMIDAD DE LOS VOTOS declara a [Nombre 001], autor responsable de UN DELITO DE ABUSO SEXUAL CONTRA PERSONA MAYOR DE EDAD EN PERJUICIO DE [Nombre 003] y DOS DELITOS DE ABUSO SEXUAL CONTRA PERSONA MENOR DE EDAD, EN PERJUICIO DE [Nombre 005], por lo que se le impone la pena de DOS AÑOS DE PRISIÓN POR EL PRIMERO, TRES AÑOS DE PRISIÓN POR EL SEGUNDO Y TRES AÑOS DE PRISIÓN POR EL TERCER DELITO ACREDITADO, los que concursan materialmente entre sí, por lo que el TOTAL DE LA PENA IMPUESTA POR LOS TRES DELITOS ACREDITADOS ES DE OCHO AÑOS DE PRISIÓN.

Asimismo, se absuelve de toda pena y responsabilidad a [Nombre 001], de un delito de Violación que se le venía atribuyendo en perjuicio de [Nombre 005] . La pena impuesta deberá descontarse en el lugar y forma que lo determinen los reglamentos penitenciarios previo abono de la preventiva que hubiera sufrido el ahora sentenciado por este asunto. Por mayoría de sus votos, este Tribunal, a efectos de garantizar el cumplimiento de la sanción impuesta se impone a [Nombre 001] las medidas cautelares de: 1) Mantener un domicilio fijo donde pueda ser ubicado. 2-) Firmar cada quince días en el lugar donde se encuentre la causa. 3-) Se ordena el impedimento de salida del país. 4-) Se ordena a [Nombre 001] la entrega de su pasaporte en este Tribunal, en el término de 24 horas. Las medidas impuestas se ordenan hasta que finalice el proceso. La co-jueza Mata Sánchez salva el Voto e impone Prisión preventiva por el plazo de seis meses en contra de [Nombre 001] conforme al numeral 258 del Código Procesal Penal. Se resuelve el proceso penal, sin especial condenatoria en costas. Sobre la Acción Civil Resarcitoria: Se declara con lugar la Acción Civil Resarcitoria, condenándose en forma directa a [Nombre 001] y a Temporalidades de la Arquidiócesis de San José en forma solidaria, al pago del daño moral ocasionado al Actor Civil [Nombre 005] , el que se liquida en la suma de cinco millones de colones. Se condena a los demandados civiles [Nombre 001] y Temporalidades de la Arquidiócesis de San José al pago de las costas generadas por la interposición de la Acción Civil Resarcitoria, la que se fija en un millón de colones. Las sumas aquí concedidas deberán cancelarse al termino de 15 días a partir de la firmeza de este fallo, caso contrario, sobre el monto total otorgado se generarán intereses legales de acuerdo con la tasa de interés de los certificados depósitos del Banco de Costa Rica a seis meses plazo. Firme esta sentencia inscríbase en el Registro Judicial y testimóniense piezas para ante el Instituto Nacional de Criminología y el Juzgado de Ejecución de la Pena expidiéndose al efecto los oficios, mandamientos y testimonios de estilo. Se dispone la lectura integral de la sentencia para el día 25 de febrero de 2021 después de las dieciséis horas." (sic, folios 748 y749). Cinthya Elena Ramírez Angulo; Siany Mata Sánchez Mauricio Jiménez Vargas. Juezas y juez de juicio.

II.- Que, contra el anterior pronunciamiento, interpusieron recurso de apelación el presbítero [Nombre 012] como apoderado de Temporalidades de la Arquidiócesis de San José; el licenciado Fernando Arias Zúñiga, en calidad de defensor público del sindicado y la licenciada Claudia Villafuerte Orellana, en representación del Ministerio Público.

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 los recursos de apelación.

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

Redacta la jueza Chinchilla Calderón; y,

CONSIDERANDO:

I.- Admisibilidad. El licenciado Fernando Arias Zúñiga, en calidad de defensor público del sindicado; el presbítero [Nombre 012] como apoderado de Temporalidades de la Arquidiócesis de San José, tercero civilmente demandado y la licenciada Claudia Villafuerte Orellana, en representación del Ministerio Público, interpusieron recurso de apelación contra la sentencia dictada en autos. Dado que estos se plantearon mediante escritos motivados aportados ante el órgano de instancia y dentro del plazo legal (pues se entregaron, respectivamente, el 17, 16 y 15 de marzo de 2021, según folios 763, 751, 795 del tomo II y, por haberse dictado integralmente la sentencia el 25 de febrero de 2021 según folio 750, el plazo de 15 días hábiles no vencía sino hasta el 18 de marzo de 2021) debe admitirse, sin que sean necesarias ulteriores formalidades pues, de lo contrario, se incumpliría el mandato establecido en el artículo 8.2.h de la Convención Americana sobre Derechos Humanos y lo resuelto por la Corte Interamericana de Derechos Humanos en el caso de Mauricio Herrera Ulloa contra Costa Rica, sentencia de 02 de julio de 2014. (B) Mediante sentencia número 1925-2019, de las 11:15 hrs. del 28 de octubre de 2019 el Tribunal Penal de Hacienda del Segundo Circuito Judicial de San José, resolvió: "POR TANTO: Se declara con lugar el recurso interpuesto por la licenciada Claudia Villafuerte Orellana, representante del Ministerio Público. Se anula la sentencia impugnada y el debate que le precedió y se ordena el juicio de reenvío ante una nueva integración del órgano de instancia. En virtud de lo anterior, se omite pronunciamiento de la impugnación presentada por parte de la abogada de la Oficina de la Defensa Civil de la Víctima, al estimarse innecesario. NOTIFÍQUESE. Gustavo Adolfo Rojas Gutiérrez. Gustavo Gillen Bermúdez Raúl Madrigal Lizano. Jueces de Apelación de Sentencia Penal.” Producto de ese reenvío, se dictó la decisión mixta (condenatoria por abusos y absolutoria por violación) que ahora se impugna, específicamente, en el caso de la representación fiscal, en cuanto a la absolutoria por el delito de violación. Como puede constatarse, la ahora recurrida es la segunda sentencia absolutoria consecutiva existente en este asunto sobre el tema de la violación. Ante ello, el defensor ha pedido, en la audiencia efectuada, que se declare su inadmisibilidad, en aplicación de las reglas del doble conforme. Para determinar si es formalmente aceptable dicha impugnación, debe hacerse un análisis adicional pues hay otras disposiciones legales involucradas, tal y como lo refiriera este tribunal, tanto con una integración parcialmente diferente a la actual —R. Chinchilla, A. Solís y A. Araya: voto número 2018-1210 del 07 de diciembre de 2018— como con la actual, a través del voto número 2021-536 de las 08:40 horas del 13 de abril de 2021. En esas oportunidades se recapituló que, mediante la ley N° 8503 de Apertura de la casación penal , vigente desde su publicación en La Gaceta número 108 del 6 de junio de 2006, se adicionó el artículo 451 bis al Código Procesal Penal. Ese numeral pasó a ser el 466 bis por la inclusión de una serie de artículos a través de la ley N° 8720 o Ley de protección a víctimas, testigos y demás sujetos intervinientes en el proceso penal. Este artículo tenía el siguiente texto: “Artículo 466 bis.- Juicio de reenvío. El juicio de reenvío deberá ser celebrado por el mismo tribunal que dictó la sentencia, pero integrado por jueces distintos. El Ministerio Público, el querellante y el actor civil no podrán formular recurso de casación contra la sentencia que se produzca en el juicio de reenvío que reitere la absolución del imputado dispuesta en el primer juicio, pero sí podrán hacerlo en lo relativo a la acción civil, la restitución y las costas. El recurso de casación que se interponga contra la sentencia del juicio de reenvío deberá ser conocido por el Tribunal de Casación respectivo, integrado por jueces distintos de los que se pronunciaron en la ocasión anterior. De no ser posible integrarlo con nuevos jueces, porque el impedimento cubre a titulares y suplentes, o no se cuenta con el número suficiente de suplentes, la competencia será asumida por los titulares que sean necesarios, no obstante la causal y sin responsabilidad disciplinaria respecto de ellos.” De acuerdo con esa norma, entre otras cosas, no era admisible el recurso de casación —única forma de impugnar una sentencia penal en ese momento— contra una sentencia que, por segunda vez, absolviera al imputado. El numeral 466 bis del Código Procesal Penal recogía el principio de la doble conformidad o única persecución que tiene como finalidad limitar la potestad punitiva del Estado, de manera que las personas no sean sometidas a procesos penales interminables, pasando una y otra vez por juicios hasta que se logre la sentencia condenatoria esperada. A través de este se le garantizaba a toda persona sometida a proceso penal que, si después de un segundo debate, era absuelta nuevamente, no deberá enfrentar un nuevo juicio, ya que esta segunda sentencia absolutoria no puede ser recurrida. Tal disposición fue derogada por el artículo 10 de la Ley de Creación del Recurso de Apelación de la Sentencia, otras Reformas al Régimen de impugnación e implementación de nuevas reglas de oralidad en el proceso penal, N° 8837 de 3 de mayo de 2010. Sin embargo, fue restituida por la Sala Constitucional al acoger la acción de inconstitucionalidad número 12-007781-0007-CO mediante voto N° 2014-13820 del 20 de agosto de 2014 a las 16:00 hrs. (vinculante erga omnes al tenor del artículo 13 de la Ley de la Jurisdicción Constitucional) que: “El Ministerio Público, el querellante y el actor civil no podrán formular recurso de casación contra la sentencia que se produzca en el juicio de reenvío que reitere la absolución del imputado dispuesta en el primer juicio, pero sí podrán hacerlo en lo relativo a la acción civil, la restitución y las costas”. Allí se reconoció, de manera expresa, que dicho instituto es un instrumento que limita el poder punitivo del Estado y garantiza el derecho del acusado a ser juzgado en un plazo razonable, tutelando no solo el derecho a justicia pronta y cumplida, sino el principio de progresividad. Si bien es cierto dicha norma, originalmente, operaba para efectos del recurso de casación, en criterio de esta cámara debe comprenderse el contexto bajo la cual se emitió, en el año 2006, ya que, en ese momento, el recurso de casación era el único medio para impugnar las sentencias penales. Con la creación del recurso de apelación en materia penal, es precisamente esta la vía ordinaria para impugnar la sentencia penal, por lo cual, aunque allí se haga referencia al recurso de casación, en el contexto actual de la normativa procesal penal, debe entenderse que su aplicación concreta es en relación con el recurso de apelación. Pese a eso, posteriormente, la Sala Constitucional, por mayoría, mediante una gestión de aclaración adoptada de oficio a través de la sentencia N° 2014-17411, modificó el contenido de aquella sentencia número 2014-013820, con lo que prácticamente revocó su propio pronunciamiento (sin decirlo y sin que eso sea procedente por la vía de la adición según refiere el numeral 147 párrafo primero del Código Procesal Penal: “siempre que tales actos no importen una modificación de lo resuelto ”) y delimitó la vigencia de este instituto únicamente al recurso de casación, con lo que resulta imposible la aplicación de esa norma que está vigente por disposición de la misma Sala. Luego de ello, se formularon varias consultas judiciales de constitucionalidad tanto por esta cámara con una integración parcialmente similar a la actual (voto número 02-2016: R. Chinchilla, J. Campos y L. García) como por otros tribunales de apelación de sentencia penal del país (en materia de adultos y de personas menores de edad), oportunidades en que se dijo, en síntesis, que ese cambio de criterio constitucional por la vía de una adición y dejando incólume el voto inicial:

• a)lesionaba el principio de seguridad jurídica, así como el derecho fundamental de todo ser humano a ser juzgado en un plazo razonable y a limitar la pretensión punitiva del Estado a medios y plazos razonables; b) no se adaptaba al actual régimen de impugnaciones, pues no es posible impugnar directamente con el recurso de casación, una sentencia del tribunal de juicio que absuelve en segunda ocasión al acusado. Las sentencias de juicio se impugnan con el recurso de apelación y no hay recurso de casación per saltum en ningún supuesto. La Sala Constitucional no tomó en cuenta que, con la ley 8503 del 6 de junio de 2006, el régimen de impugnaciones era diferente y, contra las sentencias del tribunal de juicio, únicamente cabía el recurso de casación. Al cambiar esto, para ser consecuente con lo que ya había resuelto sobre el instituto de doble conformidad, se debió indicar que el referido instituto debía ser interpretado como que no podría interponerse recurso de apelación contra la sentencia del tribunal de juicio que ha reiterado la absolutoria del imputado; c) desconocía el principio de progresividad, que impide que puedan desecharse de un ordenamiento jurídico, derechos ya conferidos que amplían el rango de las garantías en tutela de los derechos fundamentales consagrados en la Constitución Política o en las convenciones sobre derechos humanos, todo lo cual también había sido reconocido en la sentencia de mayoría número 2014-013820 de la Sala Constitucional. Empero, dichas consultas fueron declaradas, en su mayoría, inadmisibles por el órgano constitucional (ver votos números 2015-9884, 2015-9886, 2015-9965, 2016-1210, 2016-2380, 2016-3477, 2016-4919 y 2017-16725) y algunas se supeditaron a otras decisiones (ver votos números 2016-9452 y 2016-9453). Concomitantemente se interpuso una acción de inconstitucionalidad que fue resuelta a través de la sentencia número 16967-16 de las 10:42 horas del 16 de noviembre de 2016, en donde, por mayoría, se declaró sin lugar y se indicó: “Esta Sala ya se pronunció, mediante las resoluciones 2014-013820 y 2014-017411, en el sentido que la restitución del artículo 466 bis del Código Procesal Penal se refiere sólo se refiere al recurso de casación y lo allí previsto no puede extenderse al recurso de apelación.” Finalmente, a través del voto número 2018-007208 del 09 de mayo de 2018 reafirmó: “Se evacua la consulta en el sentido que la restitución del artículo 466 bis del Código Procesal Penal se refiere sólo al recurso de casación y lo allí previsto no puede extenderse al recurso de apelación. Los Magistrados Castillo Víquez y Rueda Leal dan razones adicionales. La Magistrada Hernández López y el Magistrado Hernández Gutiérrez salvan el voto y disponen evacuar la consulta planteada señalando que el artículo 466 bis del Código Procesal Penal no es inconstitucional siempre y cuando se entienda que la única interpretación conforme con el derecho de la Constitución es la de estimar que contra la segunda sentencia absolutoria penal, no se puede interponer recurso alguno sobre lo resuelto en torno a la responsabilidad penal.” (El destacado es suplido). Aunque esta cámara, por unanimidad, estima que el último voto de mayoría de la Sala Constitucional no se ajusta a derecho (porque desconoció el principio de progresividad de los derechos humanos, al hacer más gravosa la situación de la persona doblemente absuelta en fase de juicio y porque afectó el principio de seguridad jurídica derivado del cambio del sistema impugnativo y del hecho que por la vía de aclaración no se puede modificar un voto de fondo) es claro que no se puede apartar de él, en tanto ha sido reiterado en forma expresa y clara por esa mayoría de la magistratura constitucional y no hay un parámetro de superior rango (como un tratado en derechos humanos o un voto de una corte internacional que regule expresamente el tema) al que se pueda hacer referencia, razón por la que, en atención a lo dispuesto por el artículo 13 de la Ley de la Jurisdicción Constitucional, debe aplicarse dicho precedente y dársele la admisibilidad respectiva al recurso, pese a que en la Asamblea Legislativa constan dos proyectos de ley (expedientes legislativos números 19906 y 19908) que pretenden reformar el citado instituto para darle los alcances que tenía originalmente y cumplir, de ese modo, lo indicado en los votos constitucionales sobre la reserva de ley. Empero, nada de eso paraliza el trámite de este asunto sin perjuicio de que, dependiendo de lo que se resuelva en adelante y del resultado de esas iniciativas, pueda invocarse la aplicación retroactiva de la ley que, al tenor de lo indicado por la Corte Interamericana sobre Derechos Humanos, no debe circunscribirse solo a la ley sustantiva, como lo indicara en los casos Vélez Loor vs. Panamá de 2010 y Ricardo Canese vs. Paraguay de 2004. En este último expresó: "178. Por su parte, el principio de la retroactividad de la ley penal más favorable se encuentra contemplado en el artículo 9 in fine de la Convención (...) Dicha norma debe interpretarse de buena fe, conforme al sentido corriente que haya de atribuirse a los términos del tratado en el contexto de éstos y teniendo en cuenta el objeto y fin de la Convención Americana, cual es la eficaz protección de la persona humana, así como mediante una interpretación evolutiva de los instrumentos internacionales de protección de derechos humanos. 179. En este sentido, debe interpretarse como ley penal más favorable tanto a aquella que establece una pena menor respecto de los delitos, como a la que comprende a las leyes que desincriminan una conducta anteriormente considerada como delito, crean una nueva causa de justificación, de inculpabilidad, y de impedimento a la operatividad de una penalidad, entre otras. Dichos supuestos no constituyen una enumeración taxativa de los casos que merecen la aplicación del principio de retroactividad de la ley penal más favorable. Cabe destacar que el principio de retroactividad se aplica respecto de las leyes que se hubieren sancionado antes de la emisión de la sentencia, así como durante la ejecución de la misma, ya que la Convención no establece un límite en este sentido. 180. De conformidad con el artículo 29.b) de la Convención, si alguna ley del Estado Parte u otro tratado internacional del cual sea Parte dicho Estado otorga una mayor protección o regula con mayor amplitud el goce y ejercicio de algún derecho o libertad, éste deberá aplicar la norma más favorable para la tutela de los derechos humanos (...)" (el destacado en negrita pertenece al original). Sin embargo, nada de ello es resorte de esta cámara. No se desconoce, tampoco, que la Sala Tercera, mediante voto número 2019-62 del 18 de enero de 2019 y con integración entonces interina en su totalidad (J. Robleto, S. Zúñiga, R. Segura, G. Alfaro y R. López) declaró sin lugar un recurso de casación en tales condiciones. Por la importancia de los argumentos, pese a la extensión de la cita, procede transcribirla en lo más relevante: «…la gestión planteada por la representante del Ministerio Público ante la Cámara de Casación debe ser declarada sin lugar. Para arribar a dicha conclusión, es necesario considerar: 1) los antecedentes históricos de la doble conformidad y la finalidad de la norma; 2) los alcances de la doble conformidad dimensionados por las resoluciones de la Sala Constitucional; 3) los alcances de la doble conformidad en el caso concreto. En relación con los antecedentes históricos, es necesario considerar que la doble conformidad fue prevista inicialmente en el artículo 451 bis del Código Procesal Penal, cuando en contra de la sentencia de primera instancia dictada por los tribunales penales, únicamente existía recurso de casación. Posteriormente la numeración de la doble conformidad fue corrida al ordinal 466 bis de la normativa adjetiva, luego, la garantía fue derogada y finalmente, fue restituida en el ordenamiento jurídico por medio de una acción de inconstitucionalidad resuelta por la Sala Constitucional. En este sentido, es necesario contextualizar que producto del fallo de la Corte Interamericana de Derechos Humanos (de ahora en adelante Corte IDH) en el caso denominado Herrera Ulloa vs. Costa Rica, emitido el 2 julio de 2004, el Estado se vio compelido a modificar el régimen de impugnación de forma tal, que se garantizara el acceso a un recurso informal, accesible, ordinario y eficaz (ARROYO GUTIÉRREZ, José Manuel. La reforma al régimen de impugnación de la sentencia penal en Costa Rica. El recurso contra la sentencia penal en Costa Rica. Asociación de Ciencias Penales- Editorial Jurídica Continental, San José, C.R., 2013, pág. 27). Como suele ocurrir con las sentencias del órgano internacional, la Corte IDH dio seguimiento al cumplimiento de lo ordenado en el caso Herrera Ulloa vs Costa Rica y mediante diversas resoluciones, valoró el procedimiento de readecuación del ordenamiento jurídico costarricense, lo que merece especial atención, toda vez que el Estado debió llevar a cabo dos reformas legales en relación con los medios de impugnación en el proceso penal, con el fin de garantizar los derechos previstos en el artículo 8.2 h de la Convención Americana sobre Derechos Humanos (CADH), procedimiento de reforma mediante el cual se incorporó y derogó la doble conformidad. Entre dichas resoluciones de cumplimiento, se encuentra la del 12 de septiembre de 2005, donde se dispuso mantener abierto el procedimiento de supervisión de cumplimiento de los puntos pendientes de acatamiento, incluyendo para dichos efectos, la adecuación del ordenamiento jurídico interno conforme a lo establecido en ordinal 8.2 h de la Convención Americana sobre Derechos Humanos. Posteriormente, la primera reforma legal mediante la cual se pretendió dar cumplimiento a lo dispuesto por la Corte IDH, fue la Ley N° 8503 denominada Ley de Apertura de la Casación Penal, publicada en el Diario Oficial La Gaceta 108, del 6 de junio de 2006, mediante la cual se modificó el régimen recursivo del proceso penal, con la finalidad de: “desformalizar y otorgar mayor amplitud y flexibilidad al recurso de casación que en nuestro ordenamiento jurídico penal constituía el mecanismo legal para impugnar la sentencia penal, de tal forma que este constituyera un instrumento procesal que materializara el derecho a recurrir el fallo ante un tribunal superior, según los parámetros que la Corte Interamericana de Derechos Humanos estipuló en el caso Herrera Ulloa” (VARGAS ROJAS, Omar; JIMÉNEZ GONZÁLEZ, Edwin Esteban. Impugnación de la sentencia penal: apelación, casación y revisión. Instituto de Investigaciones Jurídicas, San José, C.R., 2012, pág. 73). Precisamente, es a través de dicha reforma legal, cuando se incluye en nuestro ordenamiento positivo la garantía de la doble conformidad, al adicionarse al Código Procesal Penal el artículo 451 bis, donde se dispuso en lo que interesa: “El juicio de reenvío deberá ser celebrado por el mismo tribunal que dictó la sentencia, pero integrado por jueces distintos. El Ministerio Público, el querellante y el actor civil no podrán formular recurso de casación contra la sentencia que se produzca en el juicio de reenvío que reitere la absolución del imputado dispuesta en el primer juicio, pero sí podrán hacerlo en lo relativo a la acción civil, la restitución y las costas. El recurso de casación que se interponga contra la sentencia del juicio de reenvío deberá ser conocido por el Tribunal de Casación respectivo, integrado por jueces distintos de los que se pronunciaron en la ocasión anterior. De no ser posible integrarlo con nuevos jueces, porque el impedimento cubre a titulares y suplentes, o no se cuenta con el número suficiente de suplentes, la competencia será asumida por los titulares que sean necesarios, no obstante la causal y sin responsabilidad disciplinaria respecto de ellos” (…) Dicha reforma, incluyó en la normativa procesal penal un límite a la pretensión punitiva ejercida ya sea de forma pública o privada, estableciendo que ante dos sentencias absolutorias dictadas en juicio, no se podría interponer recurso de casación, evitando de esta forma que se dieran regresos ad infinitum, es decir, haciendo nugatoria la posibilidad de ordenar reenvíos a juicio de forma indefinida y sin límite alguno, lo que se desprende con meridiana claridad a partir de los datos históricos relacionados con el proceso de aprobación de la ley. Debe recordarse que la Ley de Apertura de la Casación y en consecuencia, la inclusión de la doble conformidad en el ordenamiento jurídico costarricense, tuvo como antecedente una propuesta de reforma legal del Poder Judicial que fue discutida en Corte Plena y posteriormente remitida a la Asamblea Legislativa, donde mediante el proceso previamente establecido, el proyecto se convirtió en ley de la República. Es precisamente en el seno del órgano del Poder Judicial, donde se discutió de manera amplia sobre la doble conformidad, indicándose de manera expresa que la finalidad de la norma, es precisamente impedir que se ordene el reenvío de la causa de forma indefinida, señalando en aquella oportunidad el Magistrado González Álvarez que: “ con esto se está cerrando lo que en doctrina se llama la doble conformidad, que en este momento está abierto y podría ocurrir y ya efectivamente han ocurrido casos de espiral, es decir, se le celebra un juicio al imputado y se le absuelve, recurre el Ministerio Público y la Sala anula la sentencia, ordena el reenvió y en el juicio de reenvió se le absuelve, recurre el Ministerio Público la Sala anula la sentencia y vuelve otra vez y lo vuelven a absolver, o sea, un tema de espiral y estamos cerrando la posibilidad de que la parte acusadora no pueda formular recurso contra la segunda absolutoria en el juicio de reenvió, de manera que solo (sic) lo único que podrá recurrir sería en lo relativo a la acción civil a la restitución y a las costas, cerrándole como ha sido la recomendación incluso desprendiéndose de los postulados de la sentencia de la Sala Constitucional relativa a cerrar el recurso del Ministerio Público que ya de por si está bastante cerrado, acordémonos la tesis que por lo menos se le está dando la posibilidad de que sí pueda recurrir una vez contra una sentencia absolutoria, que ya está bastante cerrado a raíz de los pronunciamientos de la Sala Constitucional” ( artículo XIII del acta nº 38-2004, de la sesión extraordinaria de Corte Plena, celebrada a las 13:30 horas, del 13 de diciembre del 2004, subrayado no corresponde al original). En el mismo sentido, ante una consulta realizada por la Magistrada Villanueva, el entonces Magistrado Arroyo Gutiérrez indicó en la misma sesión que: “debemos ponernos en el zapato de la persona que es absuelta una vez y absuelta una segunda vez y que el sistema le siga diciendo: no, usted tiene que ir una tercera vez o cuarta vez a juicio; eso realmente atenta contra todo principio de seguridad y contra los derechos fundamentales de las personas. En los sistemas acusatorios puros, digámoslo así, anglosajones, la posibilidad que tiene el Estado de acusar a una persona es única, excepcionalmente, como ustedes lo saben, cabe una revisión de un caso, pero es que aquí tenemos al Estado contra un ciudadano al que se supone acusa cuando tiene fundamentos para acusarlo y lo lleva a juicio y lo expone ante la comunidad como un eventual infractor penal y hay un jurado y un juez que dicen usted es inocente, usted es culpable, una única vez. Nosotros le estamos dando aquí al Estado dos oportunidades, pero ustedes comprenderán que estar llevando a una persona a juicio más de dos veces es realmente un tema de derechos humanos fundamental y de seguridad jurídica fundamental, por eso me parece a mí que el proyecto en esto también salva un mínimo razonable de acción por parte del Estado frente a una persona perseguida penalmente” (subrayado no corresponde al original), posición que fue secundada por el entonces Presidente de la Corte Suprema de Justicia Luis Paulino Mora Mora, quien agregó: "Esa es una tesis de una interpretación que algunos autores le han dado al artículo 8.2.H de la Convención Americana de Derechos Humanos, señalando que es un derecho del imputado, pero no es un derecho de la acusación el tener la posibilidad de una segunda revisión, por eso según esa tesis en su sentido más restrictivo es que el Ministerio Público en la acusación solamente tiene un chance, si no logra la condenatoria en sentencia no tiene ninguna posibilidad de discutir más. Nosotros hemos reconocido aquí la posibilidad de que el Ministerio Público establezca por una vez el recurso, lo que en este caso se está haciendo es restringiendo que para el reenvío ya no tiene esa posibilidad" (subrayado no corresponde al original). Según consta en el acta citada supra, como parte de la misma discusión y en una nueva intervención, el ex-Magistrado Arroyo Gutiérrez resaltó el valor de la seguridad jurídica replicando: "A propósito de esto, el 8.2.h, lo que garantiza es el recurso a favor del condenado, no excluye la posibilidad del recurso de la parte acusadora, no lo menciona. Lo que hace el 8.2.h es garantizar al condenado, y en ese contexto, nosotros también deberíamos no perder de vista que es lo que hace la Convención Americana, porque es lo que está directamente relacionado con lo que nos han mandado, de manera que, si entendí bien, Magistrado González Camacho, efectivamente, cuando se limita la posibilidad del ente acusador del Ministerio Público de reiterar su acusación varias veces, se limita porque no se está eliminando, se limita a dos, obviamente lo que se está haciendo es tratando de ponderar seguridad jurídica, derechos fundamentales en el marco de un estado de derecho y que el ciudadano sepa en algún momento que aquello se terminó, porque podría ser perpetuo". Por otra parte, la Sala Constitucional ya se había pronunciado acerca de la doble conformidad como una garantía de la seguridad jurídica, estableciendo que: “La prohibición se fundamenta en la seguridad jurídica en el ejercicio del ius puniendo (sic) del Estado, que no puede mantenerse indefinidamente hasta lograr el dictado de una sentencia condenatoria” (voto 2009-007605 de la Sala Constitucional, de las 14:43 horas, del 12 de mayo de 2009, subrayado no corresponde al original). A pesar de la mencionada reforma tendiente a dar cumplimiento a lo dispuesto en la sentencia del caso Herrera Ulloa vs Costa Rica, en la resolución de la Corte IDH del 22 de septiembre de 2006 relacionada con la supervisión de cumplimiento de la sentencia, se decidió mantener abierto el proceso de supervisión de cumplimiento en relación con la adecuación del ordenamiento jurídico interno, conforme a lo dispuesto en el artículo 8.2 h de la Convención Americana sobre Derechos Humanos, sin embargo, debe considerarse que el informe presentado por el Estado ante la Corte IDH que sirvió de base para mantener abierto el proceso, fue remitido el 30 de enero de 2006, es decir, aproximadamente 6 meses antes de la aprobación de la Ley de Apertura de la Casación, por lo que en dicha oportunidad, no se pudo evaluar el cumplimiento de la sentencia considerando dicha reforma. Posteriormente, según consta en la resolución de la Presidencia de la Corte IDH del 2 de junio 2009, emitida con ocasión de la supervisión del cumplimiento de la sentencia de la Corte IDH citada supra, la Comisión Interamericana de Derechos Humanos (de ahora en adelante CIDH) hizo ver a la Corte IDH la insuficiencia de la Ley de Apertura de la Casación para cumplir con lo dispuesto en la CADH, señalando: «Que la Comisión Interamericana analizó la denominada Ley de Apertura y consideró que “amplía en cierta medida la casación penal con el fin de adecuar el recurso de casación al artículo 8.2.h de la Convención a través de tres cambios fundamentales i) la flexibilización de la admisibilidad del recurso de casación; ii) el otorgamiento de potestades adicionales a las autoridades de que deben decidir sobre el recurso para revisar in toto la actuación del juzgado de primera instancia; y iii) la flexibilización en cuanto a la admisión de prueba. La Comisión tomó nota de “estas importantes reformas impulsadas por el Estado […]; al mismo tiempo consider [ó] que su efectividad y el consecuente cumplimiento de lo ordenado por el Tribunal en su sentencia de 2 de julio de 2004, deben ser evaluados a partir de la aplicación del nuevo modelo a casos concretos”. 19. Que, en relación con la información estadística aportada por el Estado, la Comisión Interamericana consideró que no ha quedado demostrado que el sistema procesal del Estado se haya rediseñado con el fin de brindar mayores garantías judiciales a los ciudadanos. Finalmente, solicitó a la Corte que “declare que el Estado adoptó legislación tendiente a la adecuación del ordenamiento jurídico costarricense con lo establecido en el artículo 8.2.h de la Convención Americana, en relación con el artículo 2 de la misma, cuya aplicación y consecuente evaluación de cumplimiento eficaz aún se encuentra pendiente, por lo que el procedimiento de supervisión debe mantenerse abierto respecto de este punto» (subrayado no corresponde al original), por lo que se debió citar a una audiencia privada para verificar dichas observaciones de la CIDH. De seguido, según consta en la resolución de la Corte IDH del 9 de julio de 2009 relacionada con el proceso de supervisión de cumplimiento, los representantes del Estado de Costa Rica hicieron ver que se encontraba en trámite el Proyecto de Ley N° 17.1443 denominado “Ley de Creación del recurso de apelación de la sentencia, otras reformas al régimen de impugnación e implementación de nuevas reglas de oralidad en el proceso penal”, reforma que el Estado informó, significaba la culminación de: “un arduo proceso de reformas parciales que datan de los años ochenta del siglo pasado, todas dirigidas a dar cumplimiento, por parte del ordenamiento procesal interno [de Costa Rica], de las obligaciones emanadas de la Convención Americana, en especial, el artículo 8.2.h, en relación con el artículo 2 de la misma” (subrayado no pertenece al original). Sin embargo, ante la ausencia de aprobación del proyecto, la Corte IDH mantuvo abierto el procedimiento de supervisión de cumplimiento. Finalmente, mediante Ley N° 8837 denominada Ley de Creación del Recurso de Apelación de la Sentencia, otras Reformas al Régimen de Impugnación e Implementación de Nuevas Reglas de Oralidad en el Proceso Penal, publicada en el Diario Oficial La Gaceta 111, del 9 de junio de 2010, se dio cumplimiento a lo ordenado en el caso Herrera Ulloa vs Costa Rica, según se desprende de la resolución de la Corte IDH del 22 de noviembre de 2010, relacionado con procedimiento de supervisión de cumplimiento. En dicha oportunidad, la Corte IDH fundamentó que el Estado: “consideró que las reformas introducidas por la Ley de Apertura necesitaban ser fortalecidas y, motu proprio, inició un nuevo proceso de reforma legal, el cual concluyó con la sanción de la Ley No. 8.837. Mediante dicha ley, además de mantener el recurso de casación, se crea el recurso de apelación de sentencia penal el cual, inter alia: a) permite que la sentencia pueda ser revisada por un tribunal superior; b) consiste en un recurso simple, sin mayores formalidades, que evita requisitos o restricciones que infrinjan la esencia del derecho a recurrir, y c) posibilita el examen integral de todas las cuestiones debatidas y analizadas por el tribunal de juicio. 16. La Corte Interamericana concluye que, al garantizar la posibilidad de un amplio control de la sentencia emitida por un tribunal de juicio en materia penal a nivel interno, Costa Rica ha dado pleno cumplimiento al punto resolutivo quinto de la Sentencia y, con ello, concluye el presente caso. La futura aplicación del recurso de apelación de sentencia no es materia de la supervisión de cumplimiento del caso Herrera Ulloa”. A pesar de lo anterior, mediante el artículo 10 de la Ley N° 8837 se derogó la doble conformidad prevista en aquel momento en el artículo 466 bis del Código Procesal Penal (antiguo 451 bis del Código Procesal Penal, pero cuya ubicación en la normativa adjetiva fue variada producto de la Ley N° 8720 del 4 de marzo de 2009, denominada Ley de Protección a Víctimas, testigos y demás intervinientes en el proceso penal, reformas y adición al Código Procesal Penal y Código Penal). Por otra parte, en relación con el proceso de restitución de la doble conformidad, mediante escrito con fecha del 13 de junio de 2012, se presentó una acción de inconstitucionalidad en contra de la eliminación de la garantía citada supra, gestión que fue declarada con lugar mediante el voto de la Sala Constitucional 2014-013820 de las 16:00 horas, del 20 de agosto de 2014, disponiendo que: “La potestad ilimitada para impugnar el fallo absolutorio, también puede lesionar, indirectamente, el principio de justicia pronta y cumplida; la impugnación sin límite, puede legitimar, en algunos casos, un proceso de duración indeterminada, a pesar de los reiterados fallos absolutorios. La potestad represiva es un acto de tanta relevancia sobre los derechos fundamentales, especialmente la libertad, el buen nombre, la intimidad, que se requiere, en todo caso, que la posibilidad de llevar a juicio, varias veces, a un ciudadano absuelto, tenga un límite infranqueable, cuya definición, por supuesto, le corresponde al legislador ordinario, que en este caso se refiere a la reiteración de un recurso de casación, cuando se ha dictado un fallo absolutorio. Así lo definió la norma derogada, imponiéndole un límite que resulta constitucionalmente razonable y proporcional”. A partir de la lectura de la totalidad del fallo de la Sala Constitucional, se pueden extraer los siguientes corolarios: a) a partir del principio de seguridad jurídica, se puede inferir la necesidad de limitar el ius puniendi; b) no es posible mantener una autorización para impugnar de forma ilimitada, la absolutoria dictada en una causa penal; c) el Estado no puede actuar como un perseguidor ad infinitum; d) la garantía de impugnación prevista en el artículo 8.2 h de la Convención Americana sobre Derechos Humanos, es exclusivamente del imputado; e) la segunda absolutoria es inimpugnable en casación; f) la potestad ilimitada de impugnar, puede lesionar el principio de justicia pronta cumplida, legitimando en algunos casos, procesos de duración indeterminada; g) el principio ne bis in ídem, impone una restricción a la posibilidad de enjuiciar a un ciudadano, en este caso, a través de un límite a la impugnación, aunque el principio mencionado (indica la Sala), no es aplicable íntegramente en la doble conformidad.

Posteriormente, la Sala Constitucional, actuando de oficio, mediante resolución 2014-17411 de las 16:31 horas, del 22 de octubre de 2014, adicionó la resolución citada supra utilizando una interpretación literal gramatical del artículo 466 bis del Código Procesal Penal, indicando que: “como la norma restablecida sólo se refiere al recurso de casación, lo allí previsto no puede extenderse al recurso de apelación. Conforme al sentido literal de la norma que se revive, la limitación estaba prevista sólo para la casación, y no para la apelación, pues la apelación fue incorporada hasta el año 2011 y la norma que revive esta limitación a la casación data del año 2006. Por ello, la norma revive la limitación solo para el recurso extraordinario de casación, en razón de que la norma estaba prevista originalmente solo para esta, pues la apelación en ese momento no existía” (subrayado no corresponde al original). La constitucionalidad de los alcances de la doble conformidad, fue objetada a través de una nueva acción de inconstitucionalidad promovida por la Defensa Pública, ante la existencia de un proceso penal en donde se presentaron dos sentencias absolutorias y el imputado, se encontraba a la espera de un tercer debate, producto del reenvío ordenado en dicho caso por el Tribunal de Apelación de Sentencia Penal del Segundo Circuito Judicial de San José, por lo que a criterio de los gestionantes, limitar la doble conformidad a la casación sin incluir la apelación, impide aplicar el instituto a plenitud. Sin embargo, la Sala Constitucional negó la aplicación extensiva de la doble conformidad al recurso de apelación de sentencia penal y reiteró que la limitación del ejercicio del ius puniendi a través de la doble conformidad, se presenta únicamente en relación con el recurso de casación, estableciendo que la limitación de la apelación luego de dos absolutorias debe ser establecida por el legislador y no vía jurisprudencial. En este sentido, en el mencionado voto se indicó: “Esta Sala ya se pronunció, mediante las resoluciones 2014-013820 y 2014-017411, en el sentido que la restitución del artículo 466 bis del Código Procesal Penal se refiere (sic) sólo se refiere al recurso de casación y lo allí previsto no puede extenderse al recurso de apelación. Las resoluciones de esta Sala no pueden ser objeto de acción de inconstitucionalidad. Lo que esta acción pretende es que esta Sala cambie lo expresado en las resoluciones indicadas, no procediendo recurso alguno en contra de las resoluciones de esta Sala. Además, la pretensión de interpretación del artículo 466 bis del Código Procesal Penal es competencia del legislador, al pretender incluir en dicha norma al recurso de apelación” (voto 2016-016967 de la Sala Constitucional, de las 10:42 horas, del 16 de noviembre de 2016, subrayado no corresponde al original). Finalmente, ante un supuesto de hecho donde el imputado fue absuelto en dos ocasiones en juicio y a pesar de ello, el Tribunal de Apelación de Sentencia Penal ordenó el juicio reenvío de la causa, la Sala Constitucional reiteró lo expuesto en la resolución 2016-016967 citada supra y agregó que: “la conformidad de la norma impugnada con la Constitución Política ya ha sido resuelta por este Tribunal Constitucional en reiteradas oportunidades, refiriéndose, expresamente, sobre los argumentos formulados a efecto que, no solo, se declare la inconstitucionalidad del precepto aludido, sino, más bien, que este Tribunal Constitucional anule y modifique el criterio vertido en las decisiones Nos. 2014-013820 y 2014-017411, en relación con esa normativa, lo cual no puede hacerse en esta vía. En suma, se trata de un extremo, en el cual, este Tribunal Constitucional no debe intervenir, sino que, al contrario, su resolución le atañe al Legislador, quien debe determinar la viabilidad de extender los alcances de ese precepto al recurso de apelación, como lo pretende la parte actora, lo que se circunscribe dentro de su ámbito o libertad de configuración normativa. Por consiguiente, no se considera que el precepto cuestionado sea inconstitucional y, por tanto, lo que cabe es el rechazo por el fondo de la acción” (voto 2018-006095 de las 9:20 horas, del 18 de abril de 2018). Teniendo claros los antecedentes de la doble conformidad y su finalidad, así como el proceso para su incorporación al ordenamiento jurídico, su posterior derogación y finalmente su restitución, es necesario establecer cuando resulta aplicable la doble conformidad, tomando en consideración los límites fijados en el fallo de la jurisdicción constitucional en cuanto a los alcances del instituto. En este sentido, debe tenerse presente el artículo 13 de la Ley de Jurisdicción Constitucional, dispone que la jurisprudencia y los precedentes de la jurisdicción constitucional son vinculantes erga omnes y por ello, entre todas las formas razonables de interpretar la norma, se debe elegir siempre, aquella que resulte conforme a la jurisprudencia constitucional. Así, los votos de la Sala Constitucional expuestos supra relacionados con los alcances de la doble conformidad, constituyen una barrera infranqueable en la interpretación jurídica que el órgano jurisdiccional no puede obviar al resolver un conflicto. En este caso, a partir de los votos 2014-013820, 2014-017411, 2016-016967 y 2018-006095, todos de la Sala Constitucional y relacionados con acciones de inconstitucionalidad acerca de la doble conformidad, se desprende que cuando el artículo 466 bis del Código Procesal Penal establece un límite para impugnar la segunda absolutoria, se debe hacer una lectura literal gramatical de la norma, entendiendo que el límite al ius puniendi, se restringe a los supuestos del recurso de casación y no del recurso de apelación de sentencia, conforme lo reconoció de forma expresa el órgano constitucional (…) En el caso concreto, aun cuando la jurisprudencia del órgano constitucional haya realizado una lectura literal gramatical del artículo 466 bis de la normativa citada anteriormente, con base en dicho método de interpretación (…) con independencia del razonamiento expuesto por el ad quem y su adecuación a lo dispuesto por la Sala Constitucional en relación con la posibilidad que tuvo de analizar el fondo del recurso de apelación de sentencia en vez de declararlo inadmisible, lo cierto es que aquí se verifica el supuesto de hecho previsto en el artículo 466 bis del Código Procesal Penal y en consecuencia, ante una segunda absolutoria dictada por el tribunal de primera instancia, no se puede interponer un recurso de casación, conclusión que resulta acorde con la jurisprudencia de la Sala Constitucional, resultando improcedente analizar la corrección o no de la resolución del ad quem. Dicha conclusión, es acorde con una interpretación subjetivo voluntarista o teleológica, en el tanto a partir de los antecedentes de la norma, se puede establecer con claridad que la finalidad de la doble conformidad era evitar que se dieran juicios de reenvío ad infinitum y pretende garantizar el principio de seguridad jurídica. Sobre este aspecto, debe recordarse que la doble conformidad es una garantía primaria (FERRAJOLI, Luigi. Derechos y garantías. La ley penal del más débil. Editorial Trotta, séptima edición, España, 2010, pág. 43) del derecho fundamental a no ser perseguido penalmente de manera indefinida (GUTIÉRREZ CARRO, Agustín. La inimpugnabilidad de la segunda absolutoria penal como garantía de derechos fundamentales: un ejemplo del enfoque postpositivista al servicio del garantismo. Revista Digital de la Maestría en Ciencias Penales, número 8, 2016, consultado en https://revistas.ucr.ac.cr/index.php/RDMCP/issue/view/2191). Desde esta óptica, pretender que la doble conformidad solo procede cuando el ad quem y el a quo resuelvan conforme a derecho, implica un requisito no previsto en la norma que vaciaría de contenido la garantía de la doble conformidad y obligaría a que en todos los casos, la Sala Tercera de la Corte Suprema de Justicia deba revisar el fondo de la resolución del Tribunal de Apelación de Sentencia Penal para ver si ésta se ajusta la normativa sustantiva y adjetiva, lo que resulta absurdo, toda vez que en la ponderación realizada por el legislador entre los principios de seguridad jurídica y tutela judicial efectiva al establecer la doble conformidad como límite al ius puniendi, se dio prevalencia a la seguridad jurídica cuando se presenten dos sentencias absolutorias, sin considerar si la sentencia absolutoria era procedente o no. Por estas razones, considerando que en el caso concreto se han presentado dos sentencias absolutorias en la etapa de juicio, valorando la finalidad de la norma, en concordancia con los alcances de las resoluciones de la Sala Constitucional relacionados con la doble conformidad, se debe concluir que el recurso planteado por la representante del Ministerio Público (…) debe ser declarado sin lugar.” No obstante, aun cuando esta cámara coincide con el razonamiento jurisdiccional supra expresado —es decir, está de acuerdo tanto en la necesidad de mantener la figura del doble conforme como con las apreciaciones referentes a que fue un error la derogatoria de la disposición por parte de quien legisla, máxime al hacerlo supuestamente para cumplir con una condena internacional y, asimismo, coincide en que la Sala Constitucional, en el ejercicio de interpretación, desconoció principios de derechos humanos y revocó su propia decisión por una vía improcedente (adición)— no puede menos que reconocer que, al existir un voto vinculante de la Sala Constitucional, expreso y final sobre el punto, este tiene que aplicarse. No hacerlo sería incurrir en yerros similares a los que se le achacan a dicho órgano constitucional y no hay criterios de convencionalidad, de superior rango respecto del derecho interno, para desaplicar el voto constitucional. Por ello, el pronunciamiento de la Sala Tercera sobre el tema del doble conforme no vincula a este órgano no solo porque la ley no le da ese carácter y existe un principio de mayor rango (constitucional y convencional) de independencia judicial sino porque, en todo caso, no deja sin efecto el análisis que se ha expuesto (en donde la misma Sala Constitucional, en un voto posterior y explícito sobre la constitucionalidad de las diversas interpretaciones resolvió en contrario a dicha tesis). Es decir, no se comparte el criterio de fondo del órgano de casación en tanto desconoce el último voto vinculante de la Sala Constitucional. Por ello, en principio y desde esta perspectiva, debe conocerse la impugnación fiscal y rechazarse la solicitud, planteada por el defensor del encartado durante la audiencia efectuada, de que esta se declare inadmisible, salvándose la responsabilidad de quienes integran este tribunal por las consecuencias del voto de la Sala Constitucional (no compartido, pero que nos obliga).

II.- Como primer motivo del recurso del defensor público se alega la violación al principio de tutela judicial efectiva, actuación contraria al debido proceso en la recepción de la prueba y desintegración del tribunal al hacerse uso de medios electrónicos de manera irregular. Refiere que si bien comprende que, por las circunstancias de pandemia, el uso de herramientas tecnológicas es procedente, reprocha la forma en que se utilizó en el caso concreto ya que el tres de diciembre del 2020, en una de las continuaciones del debate y cuando estaba a punto de cumplirse el día décimo de suspensión, dos de los con-jueces se enlazaron a la audiencia, vía Microsoft Teams, desde sus viviendas, ya que se les emitieron órdenes sanitarias ante la sospecha de estar contagiados de SARS-Cov-2. Refiere que, en vez de anularse el juicio, se decidió continuarlo por ese medio e incorporar prueba documental, pero eso fue una desintegración del tribunal en violación al principio de tutela judicial efectiva, cuyo contenido explica. Indica que los jueces que no estuvieron físicamente en la sala de debates no se impusieron del contenido de la prueba documental incorporada ese día, ya que no tenían acceso al expediente físico y que el factor de estrés que ambos vivían —por encontrarse con orden sanitaria respecto de una enfermedad que a esa fecha había matado a dos millones de personas en el mundo— podía incidir en los niveles de concentración, inmediación e integración. Dice que el protocolo definido en la circular 102-2020 alude a la posibilidad de que las partes se conecten remotamente, no a que lo haga el tribunal. Además, en sus conclusiones se refirió a las pericias psicológicas practicadas a los ofendidos y que se incorporaron el día 03 de diciembre 2020, pero la sentencia no aludió al tema, lo que evidencia, en criterio del apelante, la magnitud de la desintegración, pues esa prueba se incorporó en esa misma fecha y no se le prestó atención. Transcribe pronunciamientos jurisprudenciales sobre la integración de los tribunales y alude al voto de la Sala Constitucional número 1624-2020 que, según expone (aunque esta cámara no localizó ningún pronunciamiento sobre ese tema con ese número) señala que, si bien las medidas tecnológicas están permitidas por la pandemia, estas deben respetar los derechos fundamentales y agrega que no puede permitirse una chapuza que traiga consigo la anulación del contenido básico de una garantía. Pide que se anule la sentencia impugnada. Como segundo motivo de apelación del recurso defensivo se alega la violación a los principios de tutela judicial efectiva, debido proceso y juez natural en la recepción de la prueba, por desintegración del tribunal, por cuanto, durante el desarrollo del debate, específicamente mientras se recibía la prueba testimonial, el juez Mauricio Jiménez Vargas permaneció dormido por varios momentos que el defensor cita aludiendo a los archivos audiovisuales y las secuencias horarias (cinco en total) y que todo ello sucedió durante las declaraciones del ofendido [Nombre 005]. y del imputado. Transcribe, en parte, el voto número 1559-2019 de este tribunal (con otra integración) y pide que se anule la sentencia. Durante la audiencia oral el impugnante no se refirió a este tema ni tampoco lo hizo el encartado. Al contestar el recurso, la representación fiscal pidió que se rechazara. En cuanto al primer alegato indicó que, si bien lo sucedido con los jueces fue así, estima que el defensor es desleal porque no informa que ni él ni su representado manifestaron oposición a que los actos del debate se realizaran de esa manera. Agrega que la jueza que se encontraba en forma presencial dirigiendo el debate explicó a las partes la forma en que se realizaría esa audiencia y, a partir del minuto 00:05:06, otorgó la palabra a todas las partes para que manifestaran su posición al respecto y el defensor refirió que era su interés y el de su patrocinado que el juicio pudiera continuar. Manifiesta que el técnico del tribunal había coordinado previamente con el señor defensor para que no presentara al testigo de descargo que se tenía previsto recibir ese día, lo cual evidencia la anuencia total de las partes de que los actos del debate se realizaran de la forma en que se hizo y de que se alterara el orden de incorporación de la prueba y se admitiera incorporar anticipadamente la documental. Por ello se incorporaron los elementos documentales admitidos en el auto de apertura a juicio, mencionando los mismos, sin que se solicitara, por ninguno de los sujetos procesales, la lectura total de alguno de los documentos. Al estar enlazados vía Microsoft Teams la jueza Ramírez Angulo y el juez Jiménez Vargas pudieron observar y escuchar la incorporación que, por lectura, estaba realizando la presidenta del tribunal, quien se encontraba físicamente en la sala de debate y no es sino hasta en la fase de deliberación cuando, en la praxis, los jueces se imponen de la totalidad del contenido de los documentos admitidos. Concluye que es materialmente imposible que los tres jueces, en este o en cualquier otro juicio, lean conjuntamente, al momento de la incorporación de las probanzas, los documentos. Respecto al otro argumento manifiesta que, en efecto, al observar los vídeos en los momentos señalados por el recurrente se puede apreciar que el licenciado Jiménez cierra sus ojos y esto puede deberse a cansancio o, incluso, para refrescar la vista, pero que no es posible afirmar con contundencia, ni de manera razonada, que esas reacciones biológicas sean interrupciones en el desarrollo cognitivo y de percepción del juez frente a las alegaciones de las partes, a la reproducción de las pruebas o a los ritos del debate. Indica que este juicio se extendió por varios meses, que los relatos de los ofendidos y la declaración del imputado fueron extensos y que, incluso, si se observa la totalidad del debate se puede colegir que el recurrente sufrió las mismas consecuencias biológicas que acusa, sin que ello implique que estuviera durmiendo, pues biológicamente una persona puede cerrar sus ojos sin que ello implique que esté dormitando, por lo que pide rechazar la queja. Durante la audiencia oral el fiscal que se apersonó manifestó que se cumplió el protocolo estipulado en la circular número 102-2020 de Corte Plena y que solo se hacen suposiciones de que no se tuvo acceso a los documentos. Alude a votos de este tribunal sobre el tema de jueces que dormitan (votos número 2016-326 y 2016-346). La representante de Temporalidades de la Arquidiócesis de San José dijo que no se pronunciaría sobre este recurso y la abogada de la Oficina de Defensa Civil de las Víctimas no ahondó sobre el tema. Las quejas no son procedentes y se conocerán en forma conjunta al aludir a temas relacionados con la forma en que se desarrolló el debate. En primer lugar, la tutela judicial efectiva, o derecho humano a contar con aparatos judiciales que resuelvan los conflictos conforme a derecho, no se ve obstaculizada porque, en la peor pandemia que ha visto el mundo en este siglo, se readecue la forma de trabajo garantizando la vigencia de los principios básicos para el juzgamiento de las personas en aras de proteger la salud y la vida de la colectividad, evitando desplazamientos masivos que generen la propagación del virus SARS-CoV-2 (y sus variantes) causante de la COVID-19. Antes bien, si producto del desarrollo tecnológico existente es posible establecer medidas que concilien esos derechos, no debe dudarse en adoptarlas pues, como indicara la Corte Interamericana de Derechos Humanos en su Declaración del 09 de abril de 2020 “es indispensable que se garantice el acceso a la justicia ” y este es para todas las personas. Lo contrario, es decir, el cerrar los servicios de justicia, sí implicaría una afectación a dicho derecho y mantenerlos abiertos obligando desplazamientos y contactos presenciales en situaciones reales de riesgo (zonas con aumentos de contagios o alertas sanitarias para personas) pone en grave peligro la salud y la vida de las personas cuya tutela es, en última instancia, el sentido de todo el ordenamiento jurídico. Es preciso recordar que los derechos humanos no son absolutos, sino que admiten excepciones, en tanto deben conciliarse con otros (derechos humanos) de otras personas dada la característica de interconexión entre ellos, que es inherente a la materia. Si el Derecho admite que el mayor valor tutelado por los ordenamientos jurídicos (la vida y la dignidad de las personas) puede excepcionarse cuando la vida de otra persona está bajo riesgo (casos de legítima defensa por ejemplo) con mayor razón debe hacerse ese ejercicio de ponderación y de proporcionalidad cuando se trata de derechos de diferente orden, como sucede entre la vida y la salud (mayor prelación) respecto a algunas formas jurídicas que, en todo caso, pueden variarse por otras sin dejar de proteger el derecho de fondo tutelado (el derecho de defensa, de rebatir y contradecir la prueba, etc.). Entonces, en tesis de principio, la sola existencia de mecanismos diferentes a los presenciales para el desarrollo de las audiencias en períodos de crisis no es, por sí misma, violatoria a los principios constitucionales, salvo que se acredite que, por la forma específica en que se efectuó en un caso concreto, sí se generó una afectación no consentida ni subsanable de alguno de ellos. En el presente caso, el debate se desarrolló de este modo: a) inició el 09 de noviembre de 2020 (ver acta de folio 660); b)- la segunda audiencia se dio tres días después, el 12 de noviembre de 2020 (ver folios 661-662); c)- continuó seis días después: el 18 de noviembre de 2020 (ver folio 663); d)- siguió al otro día, 19 de noviembre de 2020 (ver folios 665-666); e)- dentro del plazo decenal se programaron otras audiencias consecutivas los días 23 a 25 de noviembre (ver folios 667 a 668 bis); f) según la orden sanitaria OD-407-2020 emitida a nombre del juez Jiménez Vargas esta operó del 27 de noviembre y hasta el 10 de diciembre del 2020 y se le incapacitó del 07 al 10 de diciembre de 2020. Igual información suministró la jueza Ramírez Angulo respecto a las fechas de su orden sanitaria agregando que ella no requirió ninguna incapacidad médica por no presentar sintomatología (ver folio 826 vuelto); g) el debate continuó al sexto día desde que se había cerrado la última sesión, es decir siguió el 03 de diciembre de 2020 . En esta ocasión, el juez Jiménez y la jueza Ramírez estaban con orden sanitaria, pero sin incapacidad médica. Ellos se conectaron desde sus domicilios mediante Teams y, según da cuenta el acta de debate y las grabaciones, en esa ocasión se incorporó toda la prueba documental estipulada en el auto de apertura a juicio pero las partes refirieron que no querían la lectura de ninguno de esos documentos, mencionando algunos que faltaban por agregarse a esa lista o cuyo diligenciamiento estaba pendiente (ver folio 669); h) al día décimo de esa fecha se continuó, el 17 de diciembre de 2020 (ver folio 670), ocasión en que ya el juez Mauricio Jiménez Vargas y la jueza Cinthya Ramírez Angulo se conectaron vía Teams. Cabe indicar que al primero de los jueces ya para entonces la incapacidad médica le había cesado; i) el debate continuó el 08 de enero de 2021 (ver folios 671 a 674). Ha de tenerse en cuenta que el Poder Judicial hizo un cierre colectivo (por vacaciones, asuetos y feriados) del 18 de diciembre de 2020 al 04 de enero de 2021, por lo que, entonces, ese lapso es inhábil y desde la última sesión a esta transcurrieron seis días hábiles; j) el juicio continuó el 18 de enero de 2021 (sexto día) según folio 681; k) siguió los días 20, 25, 27 y 28 de enero de 2021, es decir, sin que se superara entre cada uno el plazo decenal (folios 683, 685, 689 y 690); l) prosiguió al sétimo día, el 8 de febrero y tampoco se superó el plazo decenal entre esa y las siguientes sesiones verificadas los días 11, 16 y 18 de febrero de 2021, fecha esta última en que se emitió la parte dispositiva para luego, dentro de cinco días, específicamente el 25 de febrero, dictarse la sentencia integral (ver folios 692-697 y 750). Es decir, en ningún caso se superaron los diez días entre una jornada y otra —que es el máximo posible entre audiencias, regulado por el artículo 336 del Código Procesal Penal, para que el acto mantenga validez—; en ninguna de las audiencias referidas los jueces y jueza estuvieron incapacitados médicamente, pero en dos de ellas sí tenían una orden sanitaria de aislamiento que ameritó que la diligencia se hiciera con ellos en sus domicilios (conectados simultáneamente por videoconferencia, vía Microsoft Teams, es decir, a través de medios audiovisuales con los que podían hablar, escuchar, ver y ser vistos) y el resto de las personas se ubicaba en la sala de debates (desde donde podían ver, hablar y oír a los juzgadores que no estaban en la sala), momento en que nadie externó ningún reproche a lo actuado (pero que, en todo caso, de haberse emitido, no impedía proceder de ese modo, como se indicará). Esto y la no valoración de algunos documentos en sentencia, es lo que se alega lesivo a derechos. Lo primero que debe indicarse es que la sola existencia de una orden de aislamiento no significa que el o la funcionaria esté incapacitada médicamente. Esta distinción es importante porque la incapacidad por razones de salud genera una suspensión de la jurisdicción y esta, a su vez, implica que la persona no pueda efectuar ningún acto jurisdiccional: " La suspensión de la jurisdicción consiste en que el juez, durante un lapso, no puede emitir ningún pronunciamiento, y que el que emita será absolutamente nulo. Tiene la jurisdicción suspendida el juez a quien se le ha impuesto la sanción disciplinaria de suspensión, el juez a quien se le ha concedido una licencia especial, el juez que se encuentra incapacitado por motivo de enfermedad, el juez que está gozando de sus vacaciones. No debe confundirse con la suspensión de la competencia (...) pues la suspensión de la jurisdicción significa que el juez en esa condición no puede realizar ningún acto relativo a esa función. Es decir, la imposibilidad para llevar a cabo esos actos procesales o administrativos es total". [Arguedas Salazar, Olman (2000), Teoría General del Proceso. Editorial Juritexto, 1ª ed., San José, Costa Rica, 2000, p. 21]. Así se extrae del mismo numeral 162 de la Ley Orgánica del Poder Judicial que, aunque trata este instituto en forma conjunta con el de pérdida de la jurisdicción (que no son equivalentes pues aquel es temporal y este permanente), sí distingue sus efectos y, en el numeral 168 ibídem estipula la nulidad de los actos efectuados por quienes cuentan con la jurisdicción suspendida. En estos supuestos, la persona no puede desempeñar ninguna labor de su actividad jurisdiccional durante cierto lapso y si, a pesar de eso, la ejecuta, el acto carece de efectos. Así se ha indicado, por ejemplo, en las sentencias del antes denominado Tribunal de Casación Penal de San José (L. García, R. Chinchilla y E. Salinas) número 2011-263 y del Tribunal de Apelación de Sentencia Penal de San José número 2013-2614 (R. Chinchilla, L. García y J. Arce, con nota de este). Por su parte, las órdenes sanitarias de aislamiento son actos administrativos que se emiten por el Ministerio de Salud en el marco de lo estipulado por el artículo 365 de la Ley General de Salud que dispone: “El aislamiento de una persona o grupo de personas significa su separación de todas las demás, con excepción del personal encargado de su atención durante el período de transmisibilidad o su ubicación en lugares y bajo condiciones que eviten la transmisión directa o indirecta del agente infeccioso a personas o animales que sean susceptibles o que puedan transmitir la enfermedad a otros, según sea la gravedad del caso.” Nótese que el aislamiento no es solo para las personas enfermas sino para quienes sean sospechosas de serlo porque hayan tenido contacto cercano con alguna persona afectada, tal y como lo distingue el numeral 378 de esa ley pues, en su inciso b) estipula: “[Nombre 003] la persona sospechosa de una enfermedad contagiosa o a aquella que, aun sin presentar síntomas o signos evidentes de dicha enfermedad, sea objeto de orden de aislamiento en razón de ser contacto cercano a un agente causal de la enfermedad, una multa fija de tres salarios base.” Justamente por ello es que el artículo 336 inciso d) del Código Procesal Penal establece: “La audiencia se realizará sin interrupción, durante las sesiones consecutivas que sean necesarias hasta su terminación; pero se podrá suspender por un plazo máximo de diez días, en los siguientes casos: (…) d) Si algún juez (…) se enferma…” En este asunto, según se detalló, no hubo incapacidad alguna de las citadas personas juzgadoras durante las audiencias del juicio sino, solo en dos ocasiones estuvieron abarcadas por órdenes de aislamiento sanitarias, por lo que ellos estuvieron en sus domicilios conectados por medios electrónicos, lo que, como se refirió, no es, por sí mismo (sino por la forma en que se realice o las circunstancias que rodeen el asunto, lo que hay que analizar casuísticamente) , causal de desintegración alguna del tribunal, dadas las posibilidades actuales de interconexión, las que, además, garantizan la percepción de imagen, tonos de voz, captación de contextos para descartar que la persona declarante lea, se le indique algo o esté acompañada (aleccionada o intimidada), lo que permite verificar niveles de inmediación y concentración. En el caso de tribunales colegiados y respecto de la relación defensa-profesional y defensa-material esos medios (si se aplican adecuadamente) pueden permitir, además, la comunicación privada inmediata para garantizar el derecho de defensa y la deliberación privada. En consecuencia, casuísticamente habrá que determinar si, por las circunstancias que rodean un determinado asunto, se vulneró alguna de las garantías subyacentes pero la forma, en sí misma, no es censurable. Ahora bien, aclarado lo anterior, la queja del apelante no es, en sí misma, el enlace por videoconferencia, ni la situación de aislamiento de aquellos jueces (en lo que la misma defensa mostró su anuencia), sino que la disconformidad radica en que, en su criterio, ellos no pudieron imponerse del contenido de la prueba documental que ese día incorporaron pues no tenían acceso al expediente físico, reclamo que, dicho sea de paso y de cara al deber de lealtad (artículo 127 del Código Procesal Penal) no externó el citado profesional en el acto y, por otro lado, de ser aceptable, sería igualmente extensible a tribunales integrados presencialmente en los cuales se incorpora la prueba documental sin necesidad de lectura por anuencia de las partes y solo uno de los juzgadores tiene en sus manos el expediente físico y los otros tienen imposibilidad material inmediata de conocer el contenido, tema que, por las razones que se dirán, no tiene incidencia en los derechos de las partes y denota la improcedencia de la queja. En este asunto, no hay ninguna evidencia (más que la especulación de quien impugna) de que los otros juzgadores carecieran de acceso (previo, simultáneo o posterior) a las probanzas documentales incorporadas. Recuérdese que los medios informáticos con que hoy se cuenta implican la posibilidad de fotografiar o escanear los documentos y transmitirlos a través de servicios de mensajería móvil, correos electrónicos o hasta en línea en tiempo real. En todo caso, como las partes tampoco solicitaron que se diera lectura a esos documentos (que consistieron en lo estipulado en el auto de apertura a juicio, según folios 669 frente y vuelto) y el debate luego continuó, no hubo contradictorio ni inmediación alguna afectada al respecto y bien podían los citados juzgadores acceder a su contenido en otro momento. Es decir, lo que aquí se alega no es más que el respeto de la formalidad por sí misma considerada, sin tutela de ningún principio ulterior, lo que no es admisible en virtud del aforismo ‘pas de nullité sans grief’ (no hay nulidad sin perjuicio). El apelante indica que, como la enfermedad por la que se aisló preventivamente al juez y la jueza, ante la sospecha de que la portaran, era una que había matado, a esa fecha, a dos millones de personas en el mundo, eso podía incidir en los niveles de concentración e inmediación que tuvieran tales juzgadores, dado el nerviosismo y afectación emocional que ello puede generar. Y si bien eso podía ser así (¿quién en las mismas condiciones no lo estaría o es que acaso se piensa que los y las juzgadores son autónomas sin pensamientos o sentimientos?) solo aplicaría si se hubiera efectuado alguna incorporación efectiva de elementos probatorios que requiriesen una atención activa de los miembros del tribunal y que no podían captarse en otros momentos y si tal cosa se demostrara, pero no es este el caso, en que los citados documentos no fueron efectivamente leídos (solo se mencionaron por tipo o folio) dado que las partes consintieron tal proceder y todos ellos estaban en poder del tribunal durante el posterior desarrollo del debate para su análisis. El hecho de que las pericias psicológicas practicadas a los ofendidos y que se incorporaron el día 03 de diciembre 2020 no fueran mencionadas expresamente en la sentencia no implica que, si eso fuera así (lo que aquí se menciona solo a título hipotético), el vicio (de existir) se deba al tema de la orden sanitaria o la incorporación virtual del documento, sino a otras razones en la fase de deliberación y redacción de la decisión, que se dio en fecha posterior a lo que se alega, tema este (de si efectivamente se analizaron o no y su peso), que se retomará en posteriores apartados de esta decisión. En definitiva, no encuentra esta cámara que haya gravamen o irregularidad alguna con lo actuado que, además, se ajusta a las estipulaciones contenidas en el voto de la Sala Constitucional número 11122-2020 en que, si bien refiriéndose a otro tema (las sesiones legislativas), es equiparable al aquí tratado en tanto, en ambos, se trata de actuaciones estatales regidas por principios reglados y previstos para épocas distintas a las actuales. Allí se indicó: «…la Constitución Política es un cuerpo normativo vivo , cuya interpretación debe adaptarse a las nuevas circunstancias. Cuando la Constitución menciona la concurrencia o los votos presentes, debe entenderse que, esa concurrencia o presencia, no solamente es física, sino que también puede ser virtual, conforme lo permiten las tecnologías actuales. Más aún, tratándose de circunstancias de emergencia nacional en que, en aras de proteger la salud de las personas, se impone el distanciamiento físico para evitar la propagación del virus Covid-19. Ciertamente la emergencia existe, y los órganos del Estado deben seguir funcionamiento, con adaptaciones claro, pero debe seguir funcionando para la mejor satisfacción del interés público (…) Tal como se menciona en la exposición de motivos del proyecto consultado, la Procuraduría General de la República ha señalado que, “las nuevas tecnologías de la información y de la comunicación no son extrañas a la Administración y no pueden serlo, en el tanto que esas tecnologías están cambiando la sociedad sobre la cual actúa el poder público. Resultaría contradictorio que el Estado devenga obligado a desarrollar o impulsar infraestructuras de redes de información y comunicación de amplia cobertura, que sean accesibles y asequibles y que utilicen la mejor tecnología disponible (…) pero simultáneamente el Estado se encuentre limitado para hacer uso de esa tecnología y de las redes que se constituyan.” (C-298-2007, 28 de agosto de 2007). Destacándose que, el mismo proyecto consultado resalta el carácter excepcional de la medida, que se mantendría en el tanto se produzcan circunstancias objetivas y razonables que impidan celebrar sesiones legislativas con la presencia física de los diputados. De modo que se trata de una reforma para afrontar la realidad social actual de nuestro país.» (Se suple el destacado). De igual forma, ya para asuntos judiciales en materia penal específica, y más concretamente respecto de personas privadas de libertad (pero igualmente extensible a quienes no lo están que también pueden sufrir limitaciones a otros derechos constitucionales) dicha Sala indicó, en el voto número 2021-2260, externó lo siguiente: «…el Sistema de Administración de Justicia y el Sistema Penitenciario, deben de adaptarse a las limitaciones actuales que nos imponen las medidas sanitarias, y diseñar e implementar las acciones que sean necesarias, para no paralizar los procesos penales, y para garantizar, el cumplimiento de los derechos y garantías constitucionales y procesales que tienen las personas imputadas que se encuentran privadas de libertad. La anterior premisa, es la que esta Sala ha ido desarrollando a lo largo de los precedentes emitidos, respecto a los efectos de la presente pandemia, dentro del funcionamiento de la Administración Pública. Específicamente, respecto al proceso penal y sobre los derechos de las personas privadas de libertad, ha ordenado el diseño y ejecución de protocolos de atención para casos masivos (de Covid-19) y de solicitud de atención médica (ambos dentro del Sistema Penitenciario), y a su vez, ha ordenado, que las autoridades de Cárceles del Organismo de Investigación Judicial, implementen las coordinaciones oportunas con los Tribunales y Juzgados Penales respectivos, para evitar el hacinamiento (…) También, esta Sala, a través de sus precedentes, ha garantizado que se realicen las audiencias o debates, que cuenten con personas privadas de libertad, sin que se pueda demorar más allá de lo razonable dichas diligencias. Y recientemente, ha validado el uso de tecnologías, como la Videoconferencia, para realizar audiencias y hasta debates. Lo anterior implica, que la línea de la Sala mantiene, que lo ordinario es la presencia de la persona imputada dentro de la audiencia, para que pueda ejercer su defensa material, y que, ante casos extraordinarios, se puede prescindir de su presencia física o directa, sustituyéndola por su participación a través de medios tecnológicos…» (Se suplen las negrillas). El razonamiento es válido, por paridad de razón, para otros sujetos procesales. El otro argumento, relativo a que, mientras se recibía la prueba testimonial, el juez Mauricio Jiménez Vargas permaneció con los ojos cerrados por varios momentos mientras declaraba el ofendido [Nombre 005] y el imputado, tampoco es admisible en la medida en que el que tenga los ojos cerrados no significa que esté dormido y, aunque se aceptara hipotéticamente que esto último se hubiera dado por breves segundos que se constatan en la grabación, la sentencia analizó ambas declaraciones, sin que se alegue o constate que se dejaran de ponderar aspectos relevantes de cada una de ellas, por lo que no hubo preterición de prueba o, de otra forma, afectación a la garantía tutelada. Esta cámara respeta el criterio externado por otra sección de este mismo tribunal a través del voto número 1559-2019 (R. García, A. Araya y G. Figueroa) y citado por quien recurre, mas no lo considera aplicable al caso pues aquí no se ha acreditado que el juez estuviera distraído efectuando otras labores y que eso incidiera en la ponderación de la prueba, que es la lo que se refiere ese caso: “…el juzgador estuvo distraído durante las deposiciones de la ofendida y la señora […] , al punto que hubo momentos en que pese a no emitir ninguna manifestación la víctima o su progenitora, continuaba desarrollando dicha dinámica de consultar los documentos y escribir en la computadora, denotando así, de manera clara y evidente, que tampoco estaba tomando notas de sus declaraciones, conforme se pudo advertir, a manera de ejemplo, durante la deposición de la ofendida, en las secuencias: 00:27:35 a 00:27:45; 00:28:34 a 28:52; 00:29:31 a 00:30:03; 00:31:26 a 00:31:45; 00:36:08 a 00:36:46; 00:36:49 a 00:37:05; 00:38:56 a 00:39:20; 00:40:04 a 00:40:26; 00:41:39 a 00:42:11; y 00:42:50 a 00:43:08, del contador de la sentencia. Igual actitud mantuvo durante la identificación del imputado, minutos 00:04:25 a 00:09:40 y tampoco suspendió dicha acción durante las pausas (por ejemplo, antes de la recepción de la declaración de la madre de la agraviada, donde desplegó semejante dinámica , secuencia 00:00:39 a 00:02:40) y si bien por tratarse de una interrupción del juicio -donde no se recibe prueba- no sería exigible su concentración, lo cierto es que su proceder solo se toma aquí como referencia de que el juez descrito estaba realizando, incluso, labores ajenas al debate y a la consignación de lo declarado por las personas comparecientes, como eventualmente podría considerarse pero -según lo expuesto- esto se descarta por completo, pues no resulta lógico que continué digitando sin estarse evacuando ningún testimonio. Además, se observa que esta situación se repitió en las diversas oportunidades en que la ofendida acudió al lenguaje corporal durante su narración y sus gestos tampoco fueron visualizados por el señalado integrante del órgano colegiado, quien de ese modo demostró su absoluto desinterés, irrespeto y falta de consideración hacia lo narrado por la víctima.” Antes bien, a través del voto número 2016-326, esta cámara, con una integración parcialmente diferente a la actual (R. Chinchilla, P. Vargas y J.

Campos) ha indicado: «no logra determinar que ese órgano haya incurrido en distracciones constantes o de tal magnitud que afectaran la necesaria concentración que deben tener los jueces durante el contradictorio, sin que el solo hecho, constatado, de que en ciertas ocasiones algún juez use el citado aparato (que no necesariamente lo es para cuestiones ajenas a las funciones que desempeña en ese momento) sea, por sí mismo, causal de nulidad sino solo en la medida en que ello implique una desatención a lo que sucede o sea de una magnitud tal que eso pueda válidamente inferirse, tal y como se ha considerado por distintas integraciones de este Tribunal, por ejemplo, en el voto número 166-2015 de las 13:10 hrs. del 02 de febrero de 2015 (Arce, Campos y Solís) en que se dijo: "Es importante aclarar y subrayar que para esta cámara de apelación de sentencia, la sola circunstancia de que un juez haga una simple, ocasional y rápida consulta del teléfono celular (por ejemplo, de la mensajería), no implica necesariamente la nulidad de la sentencia, sino que el problema se da cuando –como en este caso– el uso del aparato es muy reiterado y se extiende durante lapsos importantes, de modo que la distracción afecte la capacidad de percibir u observar elementos o sucesos esenciales del juicio, necesarios para una adecuada comprensión de las cuestiones que tiene que resolver" (en igual sentido el voto número 2015-388 de Jiménez, Solís y Gullock) o en el voto 2014-831 (Chinchilla, García y Gullock) en que se mencionó: "...si bien en el archivo audiovisual (...) se puede notar que dicha funcionaria, en efecto, lee un expediente, dialoga con el técnico judicial, revisa una documentación y hace una anotación en su aparato celular, ello no puede llevar a concluir, como lo hace el impugnante, que tales actos significaran una ruptura al principio de concentración o que se hubiese desintegrado el Tribunal, pues todos esos actos son compatibles con la función de dirección del debate, sin que haya elemento adicional para, siquiera, pensar que el expediente que ella leía fuera uno diferente al que ocupaba esta causa, pues lo consulta cuando se está leyendo la acusación y durante la indagatoria y declaración del ofendido, lo que es necesario efectuar para determinar si es necesario incorporar piezas de los autos para los efectos de los interrogatorios. Nótese que el diálogo con el auxiliar del Tribunal es muy breve y suele darse, no solo en este caso, para atender asuntos propios de la causa, como el orden de ubicar testigos, el verificar que la grabación se esté efectuando, el darle instrucciones a personas del público o guardas de juicio sin que la continuidad del debate se desarrolle, etc. y la existencia de aparatos inteligentes de comunicación hace que éstos no sean exclusivos para la recepción y envío de mensajes de texto o llamadas, sino que permiten tomar apuntes, hacer anotaciones y hasta desplegar legislaciones que se guardan digitalmente. De igual forma consta que, como bien lo señala la Fiscalía, la funcionaria citada hasta intervino haciendo preguntas aclaratorias y moderando el debate, de modo que se mostró, en todo momento, atenta a lo que estaba sucediendo en el juicio, sin que la defensa haya invocado un solo argumentos, protesta o actividad que no fuera atendido oportunamente y que permita evidenciar que la invocación de este supuesto vicio tiene como fin la protección de un asunto de fondo, principio o fin ulterior y no la simple invocación de la nulidad por sí misma, en atención al simple respeto, vacío, de formas. Asimismo, si bien en otros momentos del desarrollo de la audiencia dos de los jueces intercambiaron palabras entre sí y en otra ocasión (...) lo hicieron los tres, fue por un lapso muy corto sin que, tampoco, tal comportamiento implicara, indefectiblemente, la desatención de lo que estaba sucediendo y la pérdida de concentración, aunque ciertamente debe convenirse en que se trata de una mala práctica, desde que resulta irrespetuosa para las personas que se mantienen en uso de la palabra. Empero, no conlleva ningún vicio que permita declarar nulidad alguna, razón por la que este asunto no es ni siquiera similar al antecedente invocado por el apelante..." (Ver, en similar sentido el voto número 2015-118: Salazar, Jiménez y Rivera en que se anuló la sentencia por la desatención manifiesta). Es decir, aunque por un tema de respeto, cortesía y responsabilidad los aparatos celulares o tabletas no deberían usarse en la sala de debate para observar o contestar mensajes y, de tener que utilizarse para asuntos propios de la audiencia, debería advertirse —por transparencia— a los restantes sujetos procesales que se utilizan con dicho fin, eso no significa que necesariamente cada vez que se rompa esta regla ello implique la nulidad de lo resuelto, desde que, desde vieja data se ha insistido en que no cabe decretar la nulidad por sí misma considerada sino en la medida en que la forma (en este caso, la atención) tutela una garantía mayor que se demuestre o presuma, razonablemente, quebrantada (la atención y valoración de la prueba). En este orden de ideas, se ha observado el archivo audiovisual (…) y se determina que si bien (…) se observa que el juez (…) se encuentra arrecostado al respaldar de su silla, aparentemente con los ojos cerrados, eso no significa que estuviera desconcentrado o dormido o que no estuviera prestando atención al interrogatorio (…) dicho juzgador adopta esa posición a partir de la secuencia (…) pero que no le impidió decirle algunas frases a quien presidía (al inicio del relato) o hacer diferentes movimientos (tamborilleo de dedos, pasarse la mano sobre el rostro, quitarse los lentes, etc.). Inclusive, en las secuencias (…) efectúa diferentes movimientos (ver a las juezas cuando hablan entre ellas) lo que denota que estaba prestando atención. En todo caso, durante los tres minutos, aproximados, que dura en esa posición, además de los distintos movimientos que efectuaba, lo que se estaba produciendo eran preguntas aclaratorias de una de las juezas al oficial, es decir, ya se había evacuado el grueso de la declaración de este deponente. (…) al tratarse los gestos de supuesta desconcentración que apuntan los recurrentes de aspectos muy puntuales y muy rápidos, en momentos en que no se estaba produciendo ningún acto determinante o irreproductible en otro momento, lo procedente es rechazar este alegato que parte de que los jueces deben permanecer inmóviles, casi como autómatas, desconociendo que se trata de seres humanos que también se cansan y que el prestar atención no significa, necesariamente, que deban permanecer en posiciones rígidas.» En este asunto, durante las secuencias horarias que indica el recurrente, el juez citado, aunque podría aceptarse que mantuvo sus ojos cerrados (lo que tampoco es claro de la grabación), no evidenciaba que estuviera desconectado de lo que sucedía pues en el archivo 11112020020415-2 (DVD 2) en la secuencia 1:06:00 a 1:06:40 (que es de tan solo cuarenta segundos) el juez que preside se sostiene la barbilla con su mano, mueve la otra y, finalmente, se acomoda para atrás en el asiento, mientras una jueza pregunta y la otra mantiene posición de escucha; en el minuto 1:07:50 el juez presidente se observa quieto pero no se determina que esté dormido ni dormitando (antes, inclusive, se ha quitado la mascarilla y tomado agua de una taza); en la secuencia 1:21:45 a 1:24:00 mientras una jueza digita, otra revisa documentos y el juez presidente si bien está arrecostado hacia atrás en la silla, con su mano se acomoda la corbata y hace movimientos a los lados con la cabeza como viendo los papeles que su compañera revisa, todo mientras las preguntas versan sobre apodos, personas que visitan el sitio, etc. y en el contador horario de 1:30:15 a 1:31:25 el juez se ve leyendo documentos del expediente y pasando hojas, cruza los brazos, se acomoda el cabello, cambia de posición o permanece inmóvil. Finalmente, en el archivo 08022021090810-2 (DVD 5 corregido manualmente el número) a partir de la secuencia 26:10 quien preside se sostiene la cabeza con su brazo y permanece de ese modo hasta el minuto 09:00 en que interviene un abogado, todo mientras el encartado exponía sobre la forma en que obtuvo su visa y el proyecto con parroquias hermanas en Estados Unidos y en cuanto a los minutos 54:35 a 57:00 mientras las juezas observan sus respectivos monitores, el juez presidente se mantiene pasivo (salvo al final en que se acomoda la mascarilla), casi sin movimientos, todo mientras el encartado se refiere a un señor de la comunidad ajeno al juicio y que los niños, hijos de este, durmieron en camarotes en la parroquia mientras su padre estaba hospitalizado. En definitiva, ni los segmentos son concluyentes de desatención de ningún funcionario, ni fueron amplios ni los temas resultan determinantes o no abordados en la sentencia. Por ello, estas quejas deben rechazarse.

III.- Como tercer motivo de apelación del defensor se alude a la insuficiente fundamentación intelectiva probatoria ya que, en su criterio, la sustanciación del tribunal no pasa de ser una suma de frases vacías que nunca se concretan en un razonamiento lógico fundado en argumentos racionales. Refiere que si bien la sentencia no debe ser una pieza literaria, en este caso el documento presentaba incontables yerros ortográficos (más de 300 faltas) y formales (de 98 folios de la sentencia, 70 son de transcripciones) y que eso es un indicio de la deficiencia argumentativa. Narra que en la causa hay dos personas ofendidas y se atribuye un delito sexual en perjuicio de menor de edad y otro en detrimento de un mayor de edad. En relación con la condenatoria por los hechos cometidos en perjuicio de [Nombre 005]., transcribe parte de la fundamentación y agrega que dicho ofendido no fue conteste, claro ni preciso y fue desvirtuado por prueba de descargo, la cual, a su entender, no se examinó. Alude al relato de este perjudicado (a quien se le otorgó plena credibilidad); a lo que al respecto mencionó el encartado y comenta que el dicho de aquel fue dejado sin efecto por la propia madre del quejoso (cuya declaración menciona), quien incurrió en contradicciones con aquel, sobre todo de tiempo, las cuales no se analizaron, pues ni siquiera se menciona el nombre de [Nombre 014]. Igual sucedió con el dicho de [Nombre 015], versión a la que alude y que, según narra, solo se mencionó una vez. Dice que se le resta credibilidad a este deponente a partir de prueba documental que no tiene relación con estos hechos, pues los correos electrónicos que se usan para afirmar que faltó a la verdad —al decir que [Nombre 005] no vivía ni trabajaba en la parroquia— tienen fecha 21 de enero de 2011, seis años después de los presuntos abusos y se refieren a actividades de la [...]. Ese material probatorio, refiere, se ofreció para acreditar los hechos de 2010, no los de 2005, lo cual califica de gravísimo. Agrega que hubo debilidades en el análisis de [Nombre 058], a quien se le restó credibilidad por tener animadversión hacia el ofendido, lo cual se concluyó por unas capturas de pantalla de mensajes de WhatsApp. Indica que ese sentimiento y el afecto hacia el encartado fueron admitidos por el propio testigo, pero esto último evidencia que no mentía, por lo que su dicho debió analizarse en conjunto con el resto de la prueba. Igual sucedió con el testigo [Nombre 018]. Dice que no solo se dejó de analizar la prueba de descargo, sino que tampoco se profundizó en las contradicciones del dicho del ofendido (primero dijo que la habitación era pequeña y no cabía una colchoneta y luego que era muy grande, entre otras que el apelante enumera con diversas citas del fallo). En lo relativo a los hechos en perjuicio de [Nombre 003]. menciona lo que fue probado y afirma que se usan frases genéricas, las cuales no detallan la prueba y se hacen afirmaciones gramaticalmente mal escritas y con faltas ortográficas. Transcribe un párrafo, de folio 73 de la sentencia, en que el tribunal efectuó, a su juicio, una afirmación de posibilidad, que debió implicar duda, pero que terminó reafirmando una certeza y de ahí en adelante puntualiza otros comentarios sobre diversos párrafos de la sentencia, con transcripciones de esta. Dice que no hubo argumentos lógicos para denegarle valor a los testigos y que el razonamiento empleado es creerle al ofendido y considerar poco veraz todo lo que le contradiga, pero sin analizar contenidos. Agrega que su teoría del caso consistió en referir que la denuncia forma parte de un plan trazado por [Nombre 003] y otras personas para que el encartado fuese removido de su puesto como cura párroco de Santa Marta, esto como venganza por haberles minado la autoridad y el respeto que dichas personas tenían en la comunidad. Alude a que eran dos los individuos que emitían quejas, antes de la denuncia formal, contra el cura y que, al hacerlo ante un superior, este se reunió con el Consejo Pastoral del lugar, determinando que el malestar era solo de ellos. Dice que hubo un testigo, [Nombre 078], cuya declaración no se recoge en la sentencia, pero sí compareció a juicio, quien manifestó que, desde su llegada a esa parroquia, ya había malestar de esas personas, sin que el encartado fuera removido pese a ese contexto y sin que el familiar de los feligreses incómodos acudiera a los canales que se le pidieron, sino que lo hizo directo a la prensa. En el subapartado C) de este alegato contenido en su escrito, el apelante expone su teoría del caso (describiendo lo que cada testigo aportó) y comenta por qué esta, en su criterio, se encuentra acreditada o genera duda sobre la existencia de los hechos. Se queja de que la declaración de [Nombre 078] no consta en la sentencia, pero sí en la grabación audiovisual y lo que este dijo sobre la llamada de una señora que le transmitía un descontento comunal con el sacerdote, la supuesta manipulación de este a otros (de la que solo escapaban ellos) y el que un familiar de un perjudicado quería poner una denuncia eclesiástica y en tal carácter se presentó [Nombre 003]. pero no estuvieron de acuerdo en las formas de tramitarla. Alude a que [Nombre 022] declaró que su ahijado [Nombre 023], monaguillo de la parroquia, asistía a preescolar a un centro educativo cercano a la iglesia, razón por la cual algunos días él iba a recogerlo y lo mantenía consigo en el recinto religioso mientras la madre del niño llegaba por él y se retiraban para su casa. Él narró cómo, en fecha 5 de agosto de 2014, se presentaron funcionarios del Patronato Nacional de la Infancia a la parroquia, manifestando haber recibido una denuncia anónima mediante el sistema de emergencia 9-1-1, la cual indicaba que el menor de edad referido estaba siendo víctima de abusos sexuales por parte del sacerdote [Nombre 001]. Esta situación también fue descrita por el imputado, señalando que incluso él fue entrevistado por los funcionarios del PANI y pudo tomar una fotografía del documento que le mostraron, lo cual consta en folios 482-483 del expediente. Indica el apelante que, aunque no es posible afirmar, con certeza, que la llamada anónima fuera realizada por doña [Nombre 038], Don [Nombre 033] o [Nombre 003], existe un indicio importante de que había una trama cuya finalidad era perjudicar al sacerdote, pues quien avisó contaba con información relativa a la denuncia eclesiástica que [Nombre 003] había puesto en contra de [Nombre 001] meses antes, pues en ese documento se lee textualmente: “Reitera que dicho sacerdote ya tiene denuncias en la curia metropolitana y que teme por la PME”. Esta información, de carácter privado, dice quien recurre que solo podía tenerla el propio [Nombre 001], las personas encargadas de tramitar este proceso eclesiástico, el señor [Nombre 003]. y aquellos a quienes [Nombre 003] compartiera tal confidencia. [Nombre 003] vivía solo, en un apartamento ubicado dentro de la misma propiedad que su tía [Nombre 038] y el esposo, [Nombre 033]. No obstante, el PANI determinó que la situación no era creíble, no se generó ningún proceso judicial o administrativo a partir de esta intervención y [Nombre 001] no se vio afectado. Concluye el apelante que, como el 17 de julio de 2014 [Nombre 003] interpuso la queja canónica ante la Curia Metropolitana, pero esto no generó la salida de enjuiciado de la parroquia, deciden hacer la denuncia anónima al PANI, esto es el 5 de agosto de 2014. Como lo último tampoco rindió los frutos deseados, el 8 de agosto interpuso la denuncia penal y la hizo pública mediante la prensa el 26 de agosto de 2014. Finalmente se logra el cometido de sacar a don [Nombre 001] de la parroquia de Santa Marta. El 28 de agosto de 2014, dos días después de que la historia de [Nombre 003]. fuera publicada en el diario La Nación, el señor [Nombre 005] se presenta a denunciar a [Nombre 001] penalmente por hechos ocurridos en el año 2005. Según las declaraciones del mismo [Nombre 005] y la [Nombre 003], esto fue con el fin de dar “más peso legal” a la denuncia de [Nombre 003]. [Nombre 005] declaró que él dependió económicamente de [Nombre 001] durante seis años y recibió ayuda económica desde 2005 hasta 2014, la cual dejó de obtener por voluntad propia. Sin embargo, el imputado nos afirma —continúa manifestando el impugnante— que es debido a limitaciones económicas de la parroquia de Santa Marta y por su iniciativa que se le hace ver a [Nombre 005] que ya no es posible continuar ayudándole a sufragar sus gastos universitarios y esta negativa hizo que [Nombre 005] se molestara. De acuerdo con [Nombre 038] y con el mismo [Nombre 005], este último hizo amistad con la [Nombre 034] a través de la colaboración que él prestaba en la parroquia de Santa Marta, ya que los ayudaba a preparar salones para catequesis prematrimonial y cualquier otra cosa que necesitaran lo que llevó a que [Nombre 038] lo invitara a tomar café y comer a su casa, con su familia, incluso con [Nombre 003]. Esta amistad de [Nombre 005] con la [Nombre 034] Mora es relevante, sigue manifestando quien apela, ya que [Nombre 038] reconoce en el contrainterrogatorio que fue ella quien le comentó a [Nombre 005] que [Nombre 003] había puesto una denuncia en contra de [Nombre 001] . Además, le dijo a [Nombre 003] que llamara a [Nombre 005], porque aparentemente también le había pasado algo con [Nombre 001]. Dice quien recurre que de la prueba evacuada se desprende el rol relevante de la señora [Nombre 038] en todo este caso. Agrega que una vez que [Nombre 005] se presenta a denunciar, afirma que el joven [Nombre 035]. también fue abusado, pues dijo haber visto a [Nombre 001] tocándole el pene, situación que reafirmó en el debate y aportó su número de teléfono para que lo contacten, pero cuando esta persona se presenta como testigo en el juicio negó aquellas aseveraciones, dejando claro que eran falsas. El ofendido, continúa diciendo el impugnante, buscó sumar más personas que denunciaran a [Nombre 001] como el joven [Nombre 066]. quien recibió un mensaje a través de la plataforma Messenger de Facebook el cual provenía de un perfil falso, pero le ofrecían 950 000 colones a cambio de que interpusiera una denuncia en contra de [Nombre 001], incluso decía que su denuncia sería más creíble porque era una persona muy allegada a él. Este mensaje consta en folio 486 y fue reconocido por [Nombre 066] en su calidad de testigo. Agrega el impugnante que, durante el debate, tanto [Nombre 003] como [Nombre 005] negaron ser amigos, pero del dictamen psicosocial forense practicado al segundo (SPPF-2015-00080, visible a folio 136 del expediente) se desprende que [Nombre 005]. reconoce a [Nombre 003]. como su amigo. A folio 137, párrafo tercero, se indica que un amigo de nombre [Nombre 003] le manifestó que había sufrido una supuesta violación por parte del mismo párroco y le pidió a [Nombre 005] que contara lo que le había ocurrido con el fin de ambas denuncias tuvieran un mayor peso legal. Esa relación de amistad entre ambos ofendidos es plausible pues [Nombre 003]. convivía con [Nombre 038], su tía, y [Nombre 005] reconoció ser amigo cercano de [Nombre 038]. El impugnante concluye este apartado diciendo que «Claramente no es posible afirmar con un grado de certeza absoluto que [Nombre 038] y [Nombre 033] orquestaran todo un plan para lograr su cometido de sacar a [Nombre 001] de la Parroquia de Santa Marta a toda costa y vengarse por “quitarles su corona”, llegando al extremo de instrumentalizar a su sobrino [Nombre 003] y a su amigo [Nombre 005] para interponer una denuncia por abusos sexuales. Pero tomando en cuenta toda la información obtenida a través del contradictorio tampoco es una posibilidad automáticamente descartable, sino que merecía una valoración suficiente por parte del tribunal, que si consideraba que no era admisible siquiera para generar una duda debió al menos valorarla, analizarla y descartarla. Sin embargo, una vez más, el tribunal ignora esta teoría por completo. Simplemente la calificó como una “nebulosa para restar credibilidad”, aún y cuando fue expuesta desde el alegato de apertura como nuestra Teoría del Caso.» (Ver recurso en expediente). Menciona que a la lectura de la sentencia no se presentaron los ofendidos o el acusado, pero sí lo hizo el testigo Carlos Mondragón, demostrando que estaba interesado en el asunto. Sostiene, en resumen, que no se hizo un examen sobre el valor de las declaraciones en términos de coherencia, contradicciones, lenguaje no verbal, actitud corporal de los ponentes, conductas y reacciones durante el interrogatorio, etc., que el esfuerzo que el tribunal hizo por vincular a su defendido no supera el iter lógico y que si bien existen algunos indicios que se admiten por lealtad procesal, no son suficientes para que se tenga certeza de que el señor [Nombre 001] cometiera los delitos que se le atribuyeron. Refiere que, en este caso, a diferencia de otros, había prueba de descargo que negó categóricamente el evento denunciado por [Nombre 003]., puso en cuestión la honorabilidad y sinceridad de [Nombre 005]. y expuso dudas fundadas acerca de la intención que los movió a denunciar a su patrocinado, sin que se descendiera a analizarlas. Enfatiza su reclamo en que todos los elementos que sostenían la versión del encartado o provocaban dudas fueron ignorados o desechados a partir de argumentos insostenibles o de la simple arbitrariedad, pues no basta con decir que no se le creyó a los testigos, que fue lo que, en el fondo, hicieron los jueces. Pide que se anule la sentencia y se ordene un reenvío.

Solicitó que se señalara audiencia oral. Durante esta el impugnante reiteró estas manifestaciones exponiendo la teoría del caso. Por su parte, el encartado dijo que todo se trató de una venganza de la familia referida para sacarlo del lugar. Al contestar el recurso, la representación fiscal considera que la queja no debe ser de recibo, ya que, de la declaración del agraviado expuesta tanto en su denuncia como en el debate, se pudo determinar, con certeza, el espacio temporal y ubicarlo en el año en que ocurrieron ambos eventos. Sostiene que el defensor pretende suplir la fundamentación intelectiva del tribunal con una serie de elementos o circunstancias, respecto a si [Nombre 005] vivió o no en la casa cural de la parroquia de Los Guido, con lo cual les da credibilidad a testigos de descargo que, en sentencia, fueron debidamente desvirtuados, lo que hace que su ejercicio intelectivo no sea adecuado, ya que se trata de su propia valoración subjetiva y parcializada. Añade que del iter lógico y de la fundamentación intelectiva de la sentencia es posible tener por acreditados los hechos por los que se condenó. Igual técnica se utiliza para controvertir la condenatoria impuesta al acusado por los hechos cometidos en contra de [Nombre 003]., ya que se plasma en el recurso una inconformidad porque en sentencia no se admitió la tesis defensiva centrada en una supuesta venganza realizada por la tía del ofendido, argumentos que fueron debidamente rechazados por el a quo. Concluye mencionando que, en lo referente al análisis de credibilidad y culpabilidad por los hechos acusados efectuado en la sentencia, este fue correcto, no así en lo referente a la pena impuesta ni a la absolutoria por uno de los delitos, lo cual se ataca en un recurso aparte. La representante de Temporalidades de la Arquidiócesis de San José dijo que no se pronunciaría sobre este recurso y la abogada de la Oficina de Defensa Civil de las Víctimas no ahondó sobre el tema. La queja no es procedente. En el caso de la condena, al encartado se le atribuyeron dos segmentos de eventos específicos: i) uno (compuesto por dos hechos) sucedido en la Parroquia de Los Guido de Desamparados durante el año 2005 cuando el sindicado, en dos ocasiones diferentes, mientras dormían, le tocó el pene o efectuó tocamientos en áreas genitales y actos masturbatorios en perjuicio del ofendido [Nombre 005]. quien, para ese entonces contaba con 16 años de edad y era uno de los jóvenes ayudados por el sacerdote (cabe indicar que, en perjuicio de él, pero ya en el año 2010 y en la [...], al encartado se le atribuyó un delito de violación, por el que fue absuelto y sobre el que se ahondará en otro apartado de este misma decisión). Esos sucesos, por los que fue condenado, se calificaron como dos delitos de abuso sexual contra persona menor de edad y ii) el otro acontecimiento acaecido en la [Nombre 039] en la primera quincena de octubre de 2013 en perjuicio de [Nombre 003] (para entonces mayor de edad) cuando, mientras observaban un programa televisivo en una de las habitaciones de la casa cural y les acompañaba una tercera persona, el sindicado procedió a tocar en sus genitales al ofendido. Eso se catalogó como un delito de abuso sexual contra persona mayor de edad. Es cierto que, en este asunto, el debate se prolongó durante múltiples audiencias que se desarrollaron entre el 09 de noviembre de 2020 y el 16 de febrero de 2021 (sin que abarcaran todos los días o ambas jornadas en ese lapso). También es cierto que la sentencia, de cerca de 98 páginas, inicia el análisis intelectivo a partir del considerando III que se ubica en la página 70 y que el resto de ese texto se centra en describir tanto los hechos acusados como la prueba recibida en forma oral, la cual comprendió 19 declaraciones: la del encartado, la de ambos ofendidos ([Nombre 003] y [Nombre 005].) y la de las siguientes personas: [Nombre 038] Mora, [Nombre 079], [Nombre 041], [Nombre 078], [Nombre 042], [Nombre 043], [Nombre 044], [Nombre 045], [Nombre 046], [Nombre 047], [Nombre 048], [Nombre 058], [Nombre 049], [Nombre 015], [Nombre 014] y [Nombre 018]. También es cierto que la sentencia contiene múltiples yerros de ortografía y digitación. Sin embargo, nada de ello implica, por sí, una falta de fundamentación si se tiene en cuenta que la mayoría de dichas deposiciones aluden a temas ajenos a los hechos investigados, como lo ha podido constatar esta cámara de la lectura del resumen de esas declaraciones (que, en su mayoría, han sido aceptadas por las partes y, cuando no lo han sido, han obligado a que este tribunal verifique las grabaciones, sin que constate diferencias significativas respecto de dichos resúmenes). Nótese que buena parte de los declarantes aluden a que el encartado, sacerdote de la Iglesia Católica, desplegaba una extensa labor humanitaria y de apoyo social a jóvenes con diversas problemáticas socio-económicas para que mantuvieran sus estudios y que fue en ese marco cómo se relacionó con los ofendidos; también otros muchos testigos mencionaron que existía una especie de disputa entre el encartado y un matrimonio de una de las comunidades (con cierto vínculo familiar, indirecto, con uno de los quejosos) diferendo que, según un grupo de testigos, surgió por haber sido desplazados por el encartado de sus funciones parroquiales o porque, en otras versiones, ellos querían que removieran al sacerdote pues tenían informes sobre asuntos indebidos de él. Ninguno de estos hechos interesa a este asunto ni, aceptándolo o excluyéndolo hipotéticamente por completo, es susceptible de explicar, por sí solo, que dos personas, de orígenes y formación diferentes, aporten datos relacionados con abusos sufridos en su perjuicio por el mismo sujeto activo en diversos lugares o momentos de sus vidas; que la versión de cada uno de ellos sea consistente internamente y se complemente entre sí en ciertos detalles ni que ellos coincidan con los otros declarantes en muchos de los temas periféricos que estos sí profundizaron. Es decir, el que una persona efectúe un amplio despliegue de labor humanitaria no es obstáculo para que no pueda cometer un delito, de cualquier índole incluyendo uno de tipo sexual. El que una persona reciba ayuda de otra no significa que, por eso, deba guardar una gratitud que raye en el desdibujamiento de su dignidad y, menos aún, que deba afrontar las vejaciones de que pueda ser víctima. Y, finalmente, el que haya conflicto entre algunas personas (ya sea por el manejo de temas religiosos, financieros o sociales o porque unas tengan información sobre hechos delictivos del otro y, sobre esa base, pretendan generar alertas en los demás) no implica que haya un móvil espurio para denunciar y si bien podría ser un indicio, este se descarta y es insuficiente para afirmar tal cosa, cuando los hechos son repetitivos, en perjuicio de víctimas diferentes (una de las cuales carece de relación con aquellas personas supuestamente involucradas en el conflicto) suceden de modo similar (respecto al aprovechamiento de las condiciones, hacia varones, etc.) aunque en tiempos y sitios diferentes (lo que también denota un patrón de conducta). Así las cosas, el que, a pesar de la duración del debate y la cantidad de testimonios evacuados, la sentencia no sea muy extensa en la fundamentación intelectiva tiene una explicación adecuada y obedece a que la mayor parte del material evacuado no era atinente al caso y, en esa medida, bastaba un párrafo para indicar por qué, aunque los testigos fuesen veraces (y máxime si no), eso no afectaba en nada la credibilidad de los ofendidos respecto de eventos sucedidos en circunstancias que no eran de acceso común pues, en la generalidad de ocasiones, se dieron sin testigos o bien ante la presencia de una tercera persona que se encontraba dormida o distraída. En este orden de ideas, el que personas que han sido violentadas por otra se dirijan a esta, en público o en privado, en forma directa (oral o escrita) o por medio de sus familiares, indicándole que “va a pagar” y difundan los sucesos en la comunidad, ante superiores o en procesos eclesiásticos o judiciales o mediante informaciones periodísticas, no implica, necesariamente, que el móvil sea espurio pues si efectivamente han sido víctimas de sucesos tienen razón para alzar sus voces y alertar lo que, además, desde la perspectiva religiosa en que todos los intervinientes se sitúan, constituye un discurso falso y contradictorio respecto de lo que alguien en la posición del encartado debería hacer. Como esa es la lógica que permea en toda la exposición y la teoría del caso que plantea el recurrente —que si es “A” no puede ser “B” cuando, en estos casos, “A” no implica “B”, ni a la inversa y perfectamente pueden coexistir ambos escenarios sin ser contradictorios pues, se insiste, el que haya desacuerdos entre dos personas con el encartado no implica que dos ofendidos ajenos a aquellas personas mientan— este tribunal no profundizará en esos aspectos que son periféricos. El apelante, respecto a los hechos en perjuicio de [Nombre 005]., sostiene que el ofendido no fue conteste, claro ni preciso y su dicho fue desvirtuado por prueba de descargo que no fue examinada, pero se limita a emitir juicios de valor suyos, sin examinar ni mostrar las falencias específicas de la resolución que ataca, ni indicar por qué los argumentos vertidos violentan las reglas de la sana crítica, sin que esta cámara tampoco verifique, a partir de la generalidad del alegato, algún yerro específico en la argumentación del a quo . Tampoco se nota la preterición de prueba ni el apelante específica, salvo su queja genérica, cuál fue la que se dejó de valorar o en qué segmentos esenciales, ni hay error alguno en que el órgano de mérito agrupara todas las declaraciones referentes a temas periféricos (respecto a la calidad de persona que era el encartado, tema que no se juzga aquí) y diera razones atendibles del por qué no aportaban al suceso investigado sin ahondar más al respecto. Las contradicciones que menciona el recurrente entre el ofendido y su madre (quien fue solo testigo referencial y no presencial), que el mismo apelante reconoce tienen mayor relevancia en el tema temporal, no varían lo decidido en la medida en que fue el quejoso quien, por ser la víctima y quien recibió directamente los hechos, estuvo en mejores condiciones de precisar su ocurrencia, máxime que por ello guardó silencio, inclusive hacia sus parientes, por algún tiempo. Tampoco es significativo si el quejoso dijo que la habitación era pequeña y no cabía una colchoneta y luego que era muy grande, pues se trata de referencias comparativas y que se descontextualizan sin que el tamaño del espacio físico incide en la tipificación del delito o en la estrategia defensiva, que igual se ha mantenido pese a esas alusiones. Del mismo modo, la inclusión hipotética expresa de las referencias efectuadas por [Nombre 014] o [Nombre 078] no tienen el mérito de modificar lo resuelto desde que, se insiste, ninguno fue testigo presencial y solo aludieron a extremos que les fueron narrados o, el segundo, a temas periféricos relacionados con las funciones del encartado o las quejas hacia él y los procesos eclesiásticos generados. Nótese que si bien, en el caso de Muñoz, no se transcribió su deposición en el aparte de descripción de la prueba de la sentencia (en el punto 6 de página 41 de la sentencia en pdf, en que solo se remite al audio), eso no significa que se ignorara su dicho, pus sí se le cita y se menciona el contenido resumido de su declaración en diferentes partes de la decisión, sin que la legislación (artículo 143 del Código Procesal Penal) obligue a efectuar esas referencias en un sitio o de un modo particular. Al respecto, por ejemplo, en las páginas 94 de la sentencia digitalizada en pdf se indica: “…en el contradictorio se evidenció a través de las declaraciones de [Nombre 038] y los propios miembros de la iglesia el padre [Nombre 079] y [Nombre 078], la insuficiente vigilancia que se ejercía sobre las actuaciones del demandado civil [Nombre 001], mismas que incluso fueron de conocimiento de la Iglesia desde antes al 10 de julio de 2014, sin que se tomaran acciones para controlar lo que estaba sucediendo e incluso enmendar las situaciones acontecidas y en forma contraria se tomó una posición de callar lo que era de su conocimiento amparados en la doctrina del perdón que rige a la iglesia católica ”. El que en la sentencia se haya mencionado una sola vez a [Nombre 015] tampoco afecta la validez de dicha decisión pues no es la cantidad de referencias, sino el contenido d estas, lo que debe valorarse y, en el caso de ese deponente, no le mereció credibilidad al tribunal por cuanto “…de la declaración de [Nombre 058] se extrajeron elementos de importancia, que incluso contradice lo dicho por otros testigos, tal es el caso de la afirmación de que en la habitación había una cama matrimonial utilizada por el padre y no como se indicó por el imputado, [Nombre 018] y [Nombre 015], se trataban de tres camas individuales, o la presencia de [Nombre 005] durmiendo en el lugar pese a que se negó por todos los testigos de descargo, que residiera en el lugar, incluso que laborara en la iglesia parroquial, cuando se aportaron correos del imputado dirigidos a girar instrucciones a [Nombre 005] de actividades propias de la parroquia que son contestes con una persona que labore o preste un servicio en el lugar, tal es el caso del correo de fecha 21 de enero de 2011 que reza: “La tercera Comunidad Catecumenal de Hatillo ha solicitado la capilla del Llano para una convivencia. Avísales a ellos que si: [Nombre 054] [Valor 001] o [Valor 002]. Luego le avisas a los encargados de la Capilla a Doña [Nombre 055] como sacristana y a [Nombre 056] de la junta. En Poas de Aserrí el sábado 29 se realizará a las pm una marcha MULTITUDES UNIOS CON JESÚS organizado por iglesias cristianas incluyendo la católica. Solo para que sepas por si alguien pregunta. El jueves 27 de enero debo estar en la Delegación policía. Anotalo en mi agenda y recuérdamelo por favor” (sic) Contradicciones que en igual sentido se reiteran con expresiones vía correo como el correo que el padre [Nombre 001] remite a [Nombre 005] en fecha dos de diciembre, a saber: “Gracias, me siento muy bien, estas realizando bien tu trabajo, hasta estoy pendiente del pago de la casa a [Nombre 058], de tu celular y de ti mismo. Ese es el [Nombre 005] que me agrada el que hace algo productivo, por los demás por ti mismo a hasta tengo ganas de que entres a la U, como si fuera yo el que voy a entrar. I love You.” (sic) Dejando en evidencia que él pagaba la casa donde residía, situación que ha sido negada durante el interrogatorio en juicio, incluso fue el sustento para desprestigiar al ofendido a quién en todo momento se le ha colocado como un interesado aprovechándose de los demás . Todos estos elementos de prueba, tal y como se ha expuesto fueron analizados por el Tribunal de forma integral y en los términos expuestos permitieron que se decantara por darle total credibilidad al dicho del ofendido, descartándose la versión de los hechos establecida por la defensa tanto técnica como material, la que en si misma ha sido contradictoria, imprecisa y claramente forzada a justificar situaciones comprometedoras que fue imposible ocultar pese a la gran cantidad de prueba testimonial que fue recibida y con la que se intentó establecer una nebulosa respecto a la existencia del hecho y la credibilidad del ofendido, quién lógicamente y por la naturaleza del delito y dinámica en que se ejecutó, es el único que podía establecer la circunstancias espacio temporales del hecho y de manera esencial el modus de ejecución del ilícito que se ha tenido…” (el destacado es suplido). Nótese que, de lo transcrito se extrae, en primer lugar, por qué los testigos de descargo no fueron creíbles y, por ello, no se profundizó mayormente en las contradicciones en que incurrieron, pero, adicional a ello, es posible constatar que la referencia que se hace al correo que reprocha la defensa tiene como propósito destacar la credibilidad de la versión del ofendido, referente a que él sí apoyaba en las parroquias en las que trabajaba el encartado (aludió a varias) y que este sí le pagaba su casa y estudios, tesis atacada por la defensa. Entonces, si bien el correo es de 21 de enero de 2011, seis años después de los presuntos abusos y se refieren a actividades de la [...], de dicho material sí se infiere la cercanía entre ambo sujetos y se apoya la tesis del ofendido más que la del encartado. El principio de comunidad de la prueba implica que un elemento, una vez ofrecido y admitido, pueda ser usado para extremos distintos, de modo que, si bien ese material pudo ofrecerse para acreditar hechos de 2010, no impide que se use y extraigan indicios respecto de los sucesos anteriores o diferentes. Respecto de [Nombre 058], el tribunal, contrario a la queja del apelante, fue amplio en su análisis. En la página 78 de la sentencia digital en pdf se lee: “…se recibió la declaración de [Nombre 058], quién estableció su llegada a la parroquia de Santa Marta a finales de octubre del año dos mil, no obstante, señaló recordar que el imputado [Nombre 001] en conjunto con [Nombre 059] y el ofendido [Nombre 003] estaban observando televisión en el dormitorio, afirmando no haber presenciado nada extraño, sino que simplemente vio al padre [Nombre 001] salir de la habitación y tiempo después al ofendido y [Nombre 022] hablando de forma normal, ubicándose en un lugar y tiempo que el agraviado refirió estaba desocupado para ese momento. Situación que es considerada por este Tribunal, interpretándose complacencia de este testigo en contradecir la declaración del agraviado respecto los hechos generados en su perjuicio, lo que obedece al ligamen de este testigo con el imputado, siendo [Nombre 001] quién le brinda ayuda, entiéndase vivienda y alimentos cuando debió salir de su casa por los constantes problemas generados en su hogar a causa de la vinculación de su padre a la actividad de narcotráfico y la violencia intrafamiliar de la que eran víctimas con frecuencia. Situación que le permitió salir avante en sus estudios y adquisición de medios de subsistencia a posterior, dejando claro que el padre [Nombre 001] siempre estuvo presente en su vida como una opción de apoyo y soporte, evidenciándose que desde el inicio de este proceso su apoyo al padre fue tal que, incluso confrontó a los denunciantes tratando de desprestigiarlos, restándoles “per se”, credibilidad, por lo que ante este Tribunal, se perfiló como un testigo claramente inclinado a beneficiar al imputado, al punto de que tuvo que reconocer que utilizó frases sumamente despectivas y denigrantes en contra de las personas que estuviesen en contra del padre [Nombre 001]. Aunado a lo anterior, la propia defensa de descargo ha contextualizado la dinámica de los jóvenes con el padre [Nombre 001] , inclusive sobre la base de solidaridad, compañerismo y amor al prójimo que profanan, por ejemplo celebraban cumpleaños, a veces paseaban, almorzaban de igual manera juntos como ese mismo día, pues [Nombre 059] declaró que “sintió feo” no invitarle a un plato de comida a [Nombre 003] porque era hora de almuerzo, por lo que el Tribunal no confía en el relato de [Nombre 058] pues ¿cómo? creer que ese día sus pares en conjunto con el padre [Nombre 001], pudiesen almorzar y observar una película en el único dormitorio donde hay servicio de televisión por cable en la Casa cural y lo iban a excluir, ello no es esperable, a menos de que el joven [Nombre 058] no estuviese en el lugar. Así como tampoco es lógico que estuviese ocupado observando unas revistas y que por eso se perdía el acceso a la película, como si fácilmente tuviera otro televisor con dicho servicio, lo cual fue negado por el imputado [Nombre 001], quien dijo que era exclusivo de su habitación la televisión por cable. Asimismo, en caso de superar estas contradicciones como confiar que una persona que estuviese afuera de la habitación centrando su atención en unas revistas y a la vez informándose de lo que sucedía en el interior de una habitación que difícilmente tenía visibilidad. De allí, que todas las circunstancias anteriores hacen concluir al Tribunal que su dicho no tiene credibilidad alguna.” (Se suple el destacado). Nótese que el tribunal no solo le restó valor a su declaración por los sentimientos de animadversión hacia los testigos, sino por la contradicción con la misma prueba de descarga y las propias inconsistencias de su relato, sin que este tribunal determine irregularidad alguna en el escrutinio efectuado, el cual estuvo apegado a las reglas de la lógica, la experiencia y la psicología elemental, todas las cuales integran la sana crítica. Igual sucede con el testigo [Nombre 018] que, en la página 82 de la sentencia en pdf es utilizado por el tribunal para apoyar en parte la versión del perjudicado (la cercanía de jóvenes en riesgo social con el encartado) pero, a su vez, negarle credibilidad en otros extremos en que fue impreciso o complaciente y, finalmente, todos esos testigos son escrutados en conjunto diciéndose: «…es a partir de este punto en el que el Tribunal resta credibilidad a los testigos de descargo [Nombre 018], [Nombre 066], [Nombre 063], [Nombre 064] y [Nombre 048], quienes en todo momento procuraron, colocar a [Nombre 005] como una persona mentirosa, interesada y mal ser humano que ante respuestas negativas del padre hacia darle más ayuda decidió denunciarlo, atribuyéndole falsamente hechos delictivos, incluso en contradicción con prueba documental que se hizo llegar a los autos, de la cual, se intentó descontextualizar dándole un contenido diferente al que a criterio del Tribunal realmente aconteció. Tal es el caso de [Nombre 064] y [Nombre 066], testigos de los que se logró inferir, presentaban total animadversión hacia el ofendido, evidenciado con los mensajes de texto que se indican “En mensaje remitido por what sapp al grupo denominado “[Nombre 081]” en la que refiere “Mae cago (sic) en su madre pedaso (sic) de hijueputa y me alegro mucho que su abuela se muriera sabe que me cago en el vidrio del ataúd de su abuela malparido [Nombre 005] ” e incluso realizo publicaciones en redes sociales a público en general “como pueden haver (sic) personas tan hijueputas en este mundo que se le dan (sic) de comer y muerden la mano del que les da de comer que hablan sin saber … Nadie es culpable has (sic) que se demuestre lo contrario malditos fariseos en esta vida todo se paga…Son como las culebras, pero muy sencillo las culebras se matan pizoteando (sic) la cabeza… [Nombre 005]" entrando en discusiones públicas con una persona de nombre [Nombre 070], persona que le respondió “otro mae como le dije a [Nombre 068] ahora digame (sic) en q (sic) me ayudo ese mae a mí? En nada papi para eso siempre he bretiado (sic) para no tener que dar nada a cambio de favores y no lo dije yo lo dijo el que lo denuncio!”“ [Nombre 070] Mae yo hablo xg le creo a [Nombre 005] y si resulta mentira cosa g dudo yo voy a ser el primero en disculparme públicamente mientras no!!” (sic) [Nombre 064] : “Que más que [Nombre 005] cuando viví con él porque el hace todo eso porque como él lo encontró robando plata de la iglesia y le quitó toda ayuda por eso [Nombre 005] esta doido por él tiene que agradecerle por que por esa persona él tiene una carre” (sic) “Jaja siga hablando sin saber cómo te dige espero muy pronto tus discutpas ha esa persona y por este medio culebra” (sic) Y usted no es nadie para juzgar no juzguéis porque serás gusgado” (sic) [Nombre 070]: “Si mae ahora todo mundo busca vengarse inventando cosas pff ni q la gente fuea estúpida para no darse cuenta como están las varas pero igual para eso está la ley para gadar en el asunto y se haga pagar a los responsables en caso de g sea. (sic) y en el caso de [Nombre 066]: quién participo de estos diálogos refiriendo “esto es así [Nombre 058] como mierda que es ese perro que muerde la mano que le da de comer”. Elementos que fueron considerados en relación a (sic) la objetividad y credibilidad de los testigos que fueron recibidos durante el contradictorio y permiten explicar el porqué de sus manifestaciones complacientes a la versión de la defensa, que con falacias “in personae”, pretendieron eliminar la existencia del hecho que se ha tenido por acreditado. No obstante, de la declaración de [Nombre 058] se extrajeron elementos de importancia, que incluso contradice lo dicho por otros testigos…» (Sentencia digital, páginas 85-86 del pdf; el destacado es propio; los errores ortográficos son de los documentos originales). Como se nota de lo transcrito no solo el tribunal de mérito no pretirió la prueba referida, sino que la analizó como correspondía, haciendo notar el interés (que no es lo mismo que se reconozca a que quede evidenciado con actitudes tan poco objetivas como los insultos hacia el perjudicado) que asumieron algunos declarantes de la defensa, motivo suficiente para negarles credibilidad pero que, como si fuera poco, también se enlazó a contradicciones entre ellos e internas de algunos. Por último, el que el día de la lectura de la parte dispositiva ninguno de los dos ofendidos asistiera y sí lo hiciera el sujeto de [Nombre 072], que, junto con su esposa, era los únicos que se quejaban del sacerdote, no implica ninguna irregularidad ni indicio sobre la falsedad de sus declaraciones, pues es interés de cualquier persona verificar qué se resuelve en un proceso penal que involucra a figuras de su comunidad y por las que, inclusive, intervino haciendo gestiones respecto de lo que se consideró el bien común. Por todo lo expuesto, los alegatos planteados no tienen el mérito de modificar lo decidido y deben ser rechazados.

IV.- En el primer alegato de la apelación planteada por el Ministerio Público se aduce la violación al debido proceso por una errónea aplicación del principio de correlación entre acusación y sentencia, que derivó en la desaplicación de la norma sustantiva, en concreto los artículos 156 y 157 del Código Penal. Sostiene la apelante que se absolvió al encartado por el evento cuarto de la acusación (donde figuraba como ofendido [Nombre 005]) pues se estimó que, de la redacción de dicho hecho, no era posible extraer la imputación requerida por el tipo penal de violación. Empero, para el apelante ese razonamiento es infundado. Transcribe lo estipulado, al respecto, en la pieza fiscal y considera que tanto de allí como de la denuncia y de la declaración en juicio brindada por el agraviado, es posible determinar que lo imputado se adecua al delito de violación, pues se describen las circunstancias de tiempo, modo, lugar y la agravante derivada de la condición de sacerdote del imputado, lo que generó la confianza en la víctima para que [Nombre 001] abusivamente realizara la acción de introducir su pene en el ano de la víctima. Contrario a lo que indica el tribunal no se requiere, a su juicio, indicar que el sujeto activo realizara la conducta con el ánimo de “violar” ya que de la simple redacción del tipo penal se hace alusión directa al verbo penetrar. Considera que la acusación sí describe esa acción típica y que, incluso haciendo un ejercicio de suprimir del hecho acusado la frase “con la intención de abusar sexualmente del agraviado”, el resultado habría sido una condenatoria por el delito de violación, ya que no se le violentó en ningún momento el derecho de defensa al acusado. Finaliza diciendo que, independientemente de si la finalidad del sujeto activo era abusar o violar, una no excluye a la otra, ya que, tratándose de delitos sexuales, las acciones delictivas siempre serán abusivas y tendrán siempre una intención sexual. Pide que ese extremo de lo decidido sea anulado y se ordene el reenvío, manteniéndose incólume la sentencia en lo referente a la condenatoria por los restantes delitos. El alegato se reiteró en la audiencia. Al contestar el recurso, el defensor pidió que se declarara inadmisible la apelación (lo que ya se resolvió en los primeros apartados de esta sentencia). La representante de Temporalidades de la Arquidiócesis de San José dijo que no se pronunciaría sobre esta impugnación y la abogada de la Oficina de Defensa Civil de las Víctimas tampoco lo hizo. Las quejas no son procedentes. El delito de violación que se le atribuyó al encartado fue en perjuicio del ofendido [Nombre 005]., se ubicó en 2010 en la [...] y se describió de la siguiente forma: “1. La persona ofendida [Nombre 005]. nació el tres de setiembre de 1988 (…) 4. Posteriormente, sin que se pueda precisar la fecha exacta, pero si en el año 2010, un día en horas de la noche, el ofendido [Nombre 005]. se encontraba acostado en su dormitorio en la [...], momento en que se presentó el aquí acusado [Nombre 001], quien aprovechándose de la relación de confianza establecida con el agraviado, así como de su relación de poder ya que era el Sacerdote, con la intención de abusar sexualmente del agraviado, se acostó al lado del agraviado y de manera abusiva le bajó el bóxer e inmediatamente le penetró el pene en el ano hasta eyacular.” (Se sustituye el nombre por las iniciales). Esa imputación permite determinar que, para la fecha de los hechos, el ofendido era mayor de edad (22 años), no tenía ninguna condición de discapacidad ni se acusa cometido el evento con violencia sobre las personas. Esto es importante porque, a partir de tales circunstancias, el tribunal de instancia determinó que la imputación fiscal no atribuía la condición de vulnerabilidad de la que, se dijo, el sindicado se aprovechó. Luego de hacer amplias referencias doctrinales y jurisprudenciales sobre la relevancia de la imputación y su sustento normativo y de copiar los hechos acusados, el tribunal motivó la absolutoria en los siguientes argumentos expuestos en el considerando II.4 (página 87 y siguientes de la sentencia en pdf): «Hecho que pretendió adecuar a lo establecido en el artículo 156 del Código Penal, que (…) establece como acción configurativa del delito el “acceso carnal” bajo ciertos supuestos; el primero minoría de la víctima que en el caso de mérito no corresponde pues para el año dos mil diez [Nombre 005]. contaba con veinte años de edad, el segundo cuando exista vulnerabilidad de la víctima, incapacidad para resistir y ello sea aprovechado por el sujeto activo para accederlo a la víctima o hacer acceder, elemento que en el caso concreto no se encuentra descrita en la imputación que se realiza en contra del encartado, declinándose el Ministerio Público a criterio del Tribunal erróneamente por describir en la acusación elementos propios del abuso sexual y no los que correspondían a la tipicidad de la violación, lo que de ninguna forma se subsana con elementos de agravantes establecida en el artículo 157 del mismo cuerpo normativo, como la relación de poder o la de sacerdote, pues no están descritas en la norma vigente y en todos casa para que un agravante pueda establecerse debe existir el tipo base. Así en el caso bajo análisis el Ministerio Público incurre en grave error a la hora de imputar el hecho, que incide sobre la posibilidad de este Tribunal de poder tenerlo por acreditado, pues, su saneamiento en esta etapa procesal (juicio) y por el mismo Tribunal sentenciador, implica la violación al principio del (sic) correlación de acusación y sentencia, por tener que modificarse elementos esenciales de la imputación, el debido proceso y del derecho de defensa que asiste al imputado, por lo se estima que lo procedente en este caso es absolver al imputado [Nombre 001] del delito de violación que en perjuicio de [Nombre 005]. se le venía atribuyendo.» (El destacado se suple). Esta cámara coincide con la posición del órgano de mérito. Nótese que en los hechos de la pieza fiscal si bien se menciona que el encartado se valió de su relación de confianza y de poder, por ser sacerdote, esto es parte de la agravante para la violación estipulada en el numeral 157 inciso 8 al indicarse “La prisión será de doce a dieciocho años cuando: (…) El autor realice la conducta prevaleciéndose de una relación de poder resultante del ejercicio de su cargo, y esta sea realizada por ministros religiosos, guías espirituales…” Sin embargo, para que haya agravante se requiere que se den los supuestos del tipo básico que estipula: “Artículo 156.- Será sancionado con pena de prisión de diez a dieciséis años, quien se haga acceder o tenga acceso carnal por vía oral, anal o vaginal, con una persona de uno u otro sexo, en los siguientes casos: 1) Cuando la víctima sea menor de trece años. 2) Cuando se aproveche de la vulnerabilidad de la víctima o esta se encuentre incapacitada para resistir. 3) Cuando se use la violencia corporal o intimidación. La misma pena se impondrá si la acción consiste en introducirle a la víctima uno o varios dedos, objetos o animales, por la vía vaginal o anal, o en obligarla a que se los introduzca ella misma.” (Se suplen las negritas). Aunque es sobre la base del supuesto del inciso 2) que el ente fiscal ha pretendido cimentar su caso, resulta que nunca describió, en los hechos de la acusación, en qué consistía esa vulnerabilidad de la víctima o su incapacidad para resistir, sin que baste que se acreditara que tanto en la denuncia como en su declaración en debate él dijera que estaba deprimido, llorando o buscando consuelo, sino que era preciso que el ente fiscal lo estipulara en la acusación. En otras palabras, aunque el ofendido, de forma creíble, dijera: “En el dos mil diez tenía una novia (…) Me sentía muy mal, estaba desmotivado (…) Me acurruqué en la cama solo quería estar ahí porque me sentía mal me quite la ropa para dormir me quede solo en bóxer y pantaloneta me quité la pijama, me acomode para el lado izquierdo estaba en posición fetal hecho un puño me sentía triste con ganas de llorar no me sentía bien, eran como las diez de la noche (…) ese cuarto era muy oscuro luz apagada, puerta cerrada, nada más que sin seguro. Cuando estaba acurrucado se escucha la puerta y era [Nombre 001] con la Ropa de Dormir de siempre camisa y bóxer, llevaba un trago se sienta en la cama a ver que me pasa, pensó que fue por las tortugas, le conté lo que me pasó con la flaca, él se arrecuesta detrás mío, en eso de confianza de tantos años de compartir, palabra de apoyo me va relajar, rechacé el trago. Lo probé picante no soporto el picante lo rechace, me levante no sentado del no tenía ganas de verlo me volví. Él se arregostó, todos le decíamos Pa, cuando se acuesta no sé cuánto tiempo pasó, él atrás mío al frente lo que tenía era la pared yo de espaldas, él se acuesta detrás mío lo siento normal cuando él se siente mal me recuesto a la par de él creo que va conversar cuando me doy cuanta me baja el bóxer, me siento confundido el me penetra con el pene en el Ano, eso dura un par de minutos, él me jaló el bóxer hacía abajo completamente, como me bajó las nalgas con uno de sus dedos, yo mido metro 89, [Nombre 001] mide como metro setenta y algo no más de 75, yo sigo igual arregostado con este lado en le (sic) colchón yo no me quería mover. Solo quería que el día terminara.” En la pieza fiscal no se describió que él estaba en condición de vulnerabilidad por depresión ante una ruptura afectiva y que de ello se prevaleció el encartado. Tenerlo por demostrado así, sin acusación que lo estipule, sería una flagrante violación al principio de correlación entre acusación y sentencia, como bien lo indicara el órgano de mérito refiriendo, inclusive, jurisprudencia de la Corte Interamericana de Derechos Humanos. El apelante parece haber comprendido mal el argumento del órgano de mérito, pues este no reprocha que no se haya usado la palabra “violación” ni que se indique que se cometiera la conducta con ese particular ánimo. Lo que se reprocha es que no se haya descrito en qué consistía la causal para la configuración del tipo base, sin la cual no puede hablarse de una agravante y no puede considerarse que, a falta de esto, no se afecte el derecho de defensa, pues era esencial para que no se le modifiquen las circunstancias, como ha pretendido hacerse en esta sede. No es cierto que, tratándose de delitos sexuales, las acciones siempre serán abusivas pues en este caso se alude a personas mayores de edad que tienen disponibilidad sobre el bien jurídico tutelado. Por eso mismo, aunque no se acusara como tal tampoco podría considerarse que se configuró un abuso sexual. El tipo correspondiente a la fecha de los hechos para el abuso sexual contra personas mayores de edad estipulaba:

“Artículo 162.- Si los abusos descritos en el artículo anterior se cometen contra una persona mayor de edad, la pena será de dos a cuatro años de prisión. La pena será de tres a seis años de prisión cuando: 1) El autor se aproveche de la vulnerabilidad de la persona ofendida, o esta se encuentre incapacitada para resistir o se utilice violencia corporal o intimidación. 2) El autor sea ascendiente, descendiente, hermana o hermano de la víctima. 3) El autor sea tío, tía, sobrina, sobrino, prima o primo de la víctima. 4) El autor sea madrastra, padrastro, hermanastra o hermanastro de la víctima. 5) El autor sea el tutor o el encargado de la educación, guarda o custodia de la víctima. 6) El autor realice la conducta contra alguno de los parientes de su cónyuge o conviviente, indicados en los incisos 3) y 4) anteriores. 7) El autor se prevalezca de su relación de confianza con la víctima o su familia, medie o no relación de parentesco.” (Así reformado mediante el artículo 1° de la Ley “Fortalecimiento de la lucha contra la explotación sexual de las personas menores de edad mediante la reforma y adición de varios artículos al Código Penal, Ley Nº 4573, y reforma de varios artículos del Código Procesal Penal, Ley Nº 7594”; ley N° 8590 del 18 de julio del 2007). Véase que la vulnerabilidad es una agravante. Por ello, se requería la descripción y prueba de las circunstancias del tipo base, es decir, del referido en el artículo 161 del Código Penal, numeral que debía cumplirse en todos sus elementos menos en la edad de la víctima, que ya era mayor de edad. A esa fecha señalaba dicho numeral:

“Artículo 161.- Abusos sexuales contra personas menores de edad y personas incapaces. Será sancionado con pena de prisión de tres a ocho años, quien de manera abusiva realice actos con fines sexuales contra una persona menor de edad o incapaz o la obligue a realizarlos al agente, a sí misma o a otra persona, siempre que no constituya delito de violación.” (Se suplen las negritas). Pero, en este caso, los hechos sí configuraban el delito de violación, por ende, no se configuraba el tipo básico de abusos sexuales. Así las cosas, la decisión está ajustada a derecho y el alegato debe ser rechazo pues es el ente fiscal el que debe acarrear con su propia incuria o impericia al redactar la imputación, sin que ello le pueda ser subsanado por un órgano jurisdiccional.

V.- En el segundo motivo del recurso fiscal se alega la falta de fundamentación en la pena impuesta. Indica que, a partir del considerando tercero de la sentencia, denominado “análisis jurídico” (que transcribe), se justificó el por qué se decantaron por imponer las penas mínimas para los delitos acusados y que estos se tuvieran en su modalidad simple y no agravada, como a criterio de esa representación debió condenarse. Refiere que los jueces se apartaron del quantum sancionatorio requerido por el órgano fiscal, el cual se basaba en la adecuación típica —para los hechos cometidos en perjuicio de [Nombre 005]. cuando era menor de edad— en el delito 161 inciso 4 del Código Penal vigente al momento de los hechos y que se reprimía con cuatro a 10 años de prisión el abuso sexual si concurría alguna de las agravantes descritas, entre ellas que el autor se prevaleciera de su relación de confianza con la víctima o su familia. A juicio de la impugnante, dado que el encartado usó su condición de sacerdote al momento de cometer el hecho, hizo prevalecer la confianza con el ofendido y eso, más el grado de afectación en los agraviados por la forma de comisión de los hechos y las consecuencias oprobiosas para las víctimas, le hacían merecedor de la pena pedida. Empero, los jueces consideraron que no se configuraba tal causal y fijaron la mínima sanción por cada delito. Considera que hubo error tanto en la adecuación típica como en la pena. Pide que se declare la ineficacia parcial del fallo impugnado en cuanto a esos extremos, pero se mantenga incólume la sentencia en el resto. El argumento fue reiterado en la audiencia. Al contestar el recurso, el defensor pidió que se declarara inadmisible (lo que ya se resolvió). La representante de Temporalidades de la Arquidiócesis de San José dijo que no se pronunciaría sobre este recurso y la abogada de la Oficina de Defensa Civil de las Víctimas tampoco lo hizo. La queja es parcialmente procedente. En este apartado el apelante se muestra disconforme tanto porque los hechos acreditados no se tuvieran como parte del tipo agravado como por el monto de la sanción impuesta —mínima para el tipo penal vigente a esa fecha según dijera el tribunal de instancia—. Aunque la apelante se limita a transcribir partes de la sentencia (que contienen referencia a los tres eventos probados) y se refiere, con particular énfasis, al tema de la minoría de edad (que solo tenía uno de los ofendidos, es decir, que solo afecta a dos de los tres hechos acreditados), al final gestiona la nulidad de toda la sanción, en genérico. Por ello y porque en las transcripciones que hacen en el recurso de la sentencia de mérito se alude, indistintamente a ambos perjudicados, esta cámara considera que se está impugnando la totalidad de calificaciones y penas de los hechos probados y así abordará el libelo (artículos 439 y 446 del Código Procesal Penal). Para estos efectos, como los acontecimientos han de ser juzgados con la ley vigente al momento en que ocurren (artículo 11 del Código Penal) salvo que se emitan normativas legales posteriores que resulten más beneficiosas para la persona acusada (artículos 12 y 13 del Código Penal; 9 de la Convención Americana de Derechos Humanos y 15 del Pacto Internacional de Derechos Civiles y Políticos), es preciso, en primer lugar, recordar lo tenido por demostrado en la decisión impugnada, a fin de contextualizar adecuadamente la respuesta a la queja. Luego, verificar la ley vigente a ese momento. En tercer lugar, descartar que alguna de las múltiples reformas que se han sucedido en la materia de delitos sexuales haya hecho operante la retroactividad más beneficiosa y, finalmente, abordar si la fijación efectuada por el tribunal de mérito estuvo apegada a derecho a partir de ese marco y de la prueba evacuada, sin dejar de lado, por supuesto, los principios de proporcionalidad y resocialización que son transversales a la materia punitiva. En este orden de ideas, el tribunal condenó al imputado por tres delitos: i) dos sucedidos, en días distintos, durante el año 2005 en perjuicio del ofendido [Nombre 005]. quien, para ese entonces contaba con 16 años de edad y ii) el otro evento acaecido en la primera quincena de octubre de 2013 en perjuicio de [Nombre 003] (para entonces mayor de edad). Como se observa, se trata de sucesos distantes en el tiempo que —por ello, dada la constante en el país de estar modificando legislativamente la regulación de los delitos sexuales— hace necesario efectuar alusiones a diferentes leyes por lo que, para facilitar el ejercicio, el abordaje sucesivo se dividirá por ofendidos, aunque en ambos supuestos se seguirá el esquema de análisis ya propuesto. A) Eventos en perjuicio de [Nombre 005]. El tipo penal actualmente vigente respecto del delito de abuso sexual contra persona menor de edad fue reformado mediante el numeral 1 de la ley N° 8590 del 18 de julio del 2007 denominada Ley "Fortalecimiento de la Lucha contra la explotación sexual de las personas menores de edad mediante la reforma y adición de varios artículos al Código Penal, ley Nº 4573, y reforma de varios artículos del Código Procesal Penal, Ley Nº 7594”. Por ende, no estaba vigente a la fecha de los hechos (ambos eventos sucedieron en 2005) pero es conveniente tenerlo en cuenta a fin de, ulteriormente, verificar si esta modificación resulta más beneficiosa (y aplicable retroactivamente) al sindicado, o no, y por qué. El tipo penal vigente hoy (y, se repite, prima facie no aplicable al cuadro acreditado, dada su data de comisión), estatuye:

«Artículo 161.- Abusos sexuales contra personas menores de edad y personas incapaces. Será sancionado con pena de prisión de tres a ocho años, quien de manera abusiva realice actos con fines sexuales contra una persona menor de edad o incapaz o la obligue a realizarlos al agente, a sí misma o a otra persona, siempre que no constituya delito de violación.

La pena será de cuatro a diez años de prisión cuando:

La persona ofendida sea menor de quince años .

(Así reformado el inciso anterior por el artículo 1° de la ley N° 9406 del 30 de noviembre de 2016, "Fortalecimiento de la protección legal de las niñas y las adolescentes mujeres ante situaciones de violencia de género asociadas a relaciones abusivas.") El autor se aproveche de la vulnerabilidad de la persona ofendida, o esta se encuentre incapacitada para resistir o se utilice violencia corporal o intimidación.

El autor sea ascendiente, descendiente, hermana o hermano de la víctima.

El autor sea tío, tía, sobrina, sobrino, prima o primo de la víctima. 5) El autor sea madrastra, padrastro, hermanastra o hermanastro de la víctima.

El autor sea tutor o encargado de la educación, guarda o custodia de la víctima.

El autor realice la conducta contra alguno de los parientes de su cónyuge o conviviente, indicados en los incisos 3) y 4) anteriores. 8) El autor se prevalezca de su relación de confianza o autoridad con la víctima o su familia, medie o no relación de parentesco.

(Así reformado el inciso anterior por el artículo 1° de la ley N° 9406 del 30 de noviembre de 2016, "Fortalecimiento de la protección legal de las niñas y las adolescentes mujeres ante situaciones de violencia de género asociadas a relaciones abusivas.")» Para el año 2005 (fecha de los hechos probados en detrimento de este afectado), el delito de abusos sexuales contra personas menores de edad estaba dado por el cambio que se había efectuado al Código Penal de 1973 por el artículo 1º de la ley por No. 7899 de 03 de agosto de 1999. No obstante, de previo a reseñar su contenido es imperioso tener en cuenta algunos datos adicionales, que hacen complejo el panorama jurídico. Esa ley No. 7899 del 03 de agosto de 1999 (que introdujo el tipo penal que nos interesa, pero que también incorporó otros delitos, como el abuso sexual contra personas mayores de edad) fue anulada parcialmente por las sentencias de la Sala Constitucional números 9453-2000 (a raíz de una consulta facultativa en donde se alegaba la inconstitucionalidad del artículo 161 del Código Penal) y 6304-2000 (que evacuaba una consulta facultativa en donde se cuestionaba la constitucionalidad del artículo 162 del Código Penal). Aunque la primera de esas decisiones se limita a indicar que “había que estarse” a lo resuelto en la segunda, en esta se hizo la declaratoria expresa de inconstitucionalidad, aunque solo del tipo penal que menciona a los ofendidos adultos. Eso hizo que se generaran graves confusiones sobre el alcance de ese pronunciamiento respecto a la población menor de edad afectada por ilícitos sexuales, pues, por un lado, se hacía una remisión a este voto anulatorio, pero, por otro, en su contenido nada se decía sobre aquella disposición o tema específico. Con otras palabras, esta inconstitucionalidad decretada expresamente no incidió en el tipo penal de abusos sexuales contra personas menores de edad (artículo 161 del Código Penal), sino solo en el delito en perjuicio de personas adultas (artículo 162 del Código Penal) pues la Sala Constitucional fue enfática al disponer: «La omisión del legislador de indicar el tipo de sanción implica una transgresión a los principios constitucionales citados y propiamente al numeral 39 de la Constitución Política. Por ello, es criterio de esta Sala que son inconstitucionales las siguientes frases del artículo 162 del Código Penal , reformado mediante la ley número 7899, denominada "Ley contra la explotación sexual de las personas menores de edad", publicada en La Gaceta número 159 de 17 de agosto de 1999: a) Del párrafo primero, la que dice: "La pena será de dos a cuatro años", b) Del párrafo segundo la que dice: "La pena será de tres a seis años…"». Producto de dicha resolución, luego se emitirían una serie de leyes y pronunciamientos constitucionales relacionados con el tipo penal de abuso sexual contra personas mayores de edad que, sin embargo, no se van a reseñar en este apartado, por no incumbir al presente asunto, aunque sí se abordarán en el otro , relativo al ofendido que sí tenía la condición de mayor de edad. No obstante, como la Sala Constitucional (en la consulta efectuada sobre el artículo 161 del Código Penal relativo a personas afectadas menores de edad) había remitido a lo resuelto sobre el artículo 162 del Código Penal (inconstitucionalidad sobre el tipo relacionado con las víctimas adultas), se empezó a especular si los alcances eran los mismos para ambas situaciones (la nulidad) y hubo diversas interpretaciones sobre el tema. Finalmente, fue necesario llevar la discrepancia al órgano que la originó, es decir, la Sala Constitucional y fue así cómo, casi un año después, dicho tribunal, mediante voto número 10140-2001 revocó o anuló (¡porque tampoco fue unívoca en el uso adecuado del lenguaje jurídico y utilizó ambos términos en diferentes partes de la decisión, como si fueran sinónimo, sin serlo!) parcialmente su propia sentencia número 9453-2000 para aclarar lo siguiente «…en la parte dispositiva se lee: “Estése a lo resuelto en la sentencia número 06304-2000 de quince horas cincuenta y seis minutos del diecinueve de julio del dos mil.” En dicha sentencia (06304-00) la Sala anuló parcialmente el artículo 162 del Código Penal (…), no se indicó nada en relación con el artículo 161 porque el mismo no estaba siendo objeto de consulta. En consecuencia, la sentencia 09453-00 que resolvió la consulta de constitucionalidad formulada por el Tribunal de Juicio de Cartago, adolece de un evidente error, en lo que a dicho artículo se refiere. Si en el cuerpo de la sentencia se consideró que la norma era inconstitucional, así debió establecerse en la parte dispositiva, anulándose la norma del ordenamiento jurídico a partir de la primera publicación del respectivo aviso en el Boletín Judicial e indicándose las consecuencias de dicha anulación (…) Los defectos apuntados en principio, deberían ser saneados en esta resolución. No obstante, se estima que el criterio sostenido por la Sala en relación con el artículo 161 del Código Penal, reformado por la Ley número 7899 citada, debe modificarse y en consecuencia se revoca parcialmente la sentencia número 09453 (…) del año dos mil. En cuanto a lo resuelto respecto del artículo 162 de la misma Ley, se mantiene tanto la parte considerativa como dispositiva del fallo» y, respecto a la consulta efectuada sobre el artículo 161 del Código Penal (relativa a que el párrafo segundo, de las agravantes, no decía el tipo de pena —“prisión”— que sí se menciona en el primer párrafo, sino solo los montos de años) se dijo: «…se evacua la consulta formulada en el sentido de que dicho artículo no resulta contrario al principio de legalidad, dado que interpretando tanto desde su sentido gramatical como lógico jurídico la norma, no cabe la menor duda de que el legislador previó la imposición de “pena de prisión” para el caso de las conductas agravadas de los abusos sexuales contra personas menores de edad e incapaces.» Aclarado el panorama jurídico, el artículo 161 del Código Penal vigente en 2005 era el siguiente:

«Abusos sexuales contra personas menores de edad e incapaces ARTÍCULO 161.- Quien de manera abusiva realice actos con fines sexuales contra una persona menor de edad o incapaz o la obligue a realizarlos al agente, a sí misma o a otra persona, siempre que no constituya delito de violación, será sancionado con pena de prisión de tres a ocho años.

La pena será de cuatro a diez años en los siguientes casos:

Cuando la persona ofendida sea menor de doce años.

Cuando el autor se aproveche de la vulnerabilidad de la persona ofendida o esta se encuentre incapacitada para resistir o se utilice violencia corporal o intimidación.

Cuando el autor sea ascendiente, descendiente, hermano por consanguinidad o afinidad, padrastro o madrastra, cónyuge o persona que se halle ligado en relación análoga de convivencia, tutor o encargado de la educación, guarda o custodia de la víctima.

Cuando el autor se prevalece de su relación de confianza con la víctima o su familia, medie o no relación de parentesco.» Ahora bien, los hechos atribuidos al encartado estipulaban: “1. La persona ofendida [Nombre 005]. nació el tres de setiembre de mil novecientos ochenta y ocho, de modo que para la fecha del inicio de los hechos contaba con dieciséis años de edad. 2. Sin que se pueda precisar la fecha exacta pero sí en el año dos mil cinco , cuando la persona ofendida (…) contaba con dieciséis años de edad , en al menos una oportunidad, un día no determinado, mientras se encontraba durmiendo en la misma cama con el aquí endilgado [Nombre 001] en la casa [...], el acusado [Nombre 001], con la intención de abusar del agraviado y aprovechándose de su corta edad, inocencia y la relación de poder al ser sacerdote, de manera abusiva le metió la mano dentro del bóxer y le tocó el pene, hasta satisfacer sus libidos deseos. 3. Posteriormente, sin que se pueda precisar la fecha exacta pero si en el año dos mil cinco, cuando la persona ofendida [Nombre 005]. contaba con dieciséis años de edad, en al menos una oportunidad, un día no determinado, mientras se encontraba durmiendo en la casa [...], el aquí acusado [Nombre 001] con la intención de abusar del agraviado y aprovechándose de su corta edad, inocencia y relación de poder al ser el sacerdote de manera abusiva le metió la mano dentro del bóxer y le tocó el pene, mientras se masturbaba y satisfacía sus libidos deseos.” (Se suple el destacado; se cambia el nombre de la persona ofendida por sus iniciales y se suprime el hecho de la absolutoria al que ya se ha hecho referencia en otro segmento de esta decisión). Lo primero que debe destacarse, entonces, es que, si bien la acusación alude a que el encartado se aprovechó de la “corta edad” del ofendido, también estipuló que este tenía 16 años a la fecha de los hechos, de modo que es probable que la referencia obedezca, más bien, al uso de un formulario no modificado, desde que la víctima estaba en su juventud, cercana a cumplir la mayoría de edad, monto de años que no puede ser considerado “corto”. Esto hace, en segundo lugar, que deba descartarse la agravante del inciso 1 (ser menor de 12 años a la fecha de los hechos, edad que luego se aumentaría, pero cuya norma tampoco resulta aplicable, por no ser más favorable). Tampoco consta acusado o acreditado que exista alguna relación de parentesco entre ofendido e imputado, por lo que no resulta aplicable el inciso 4 en ese segmento fáctico. Asimismo, al contrastar los hechos acusados frente a la regulación entonces vigente, hay que enfatizar que, para entonces, la condición de sacerdocio (o ministro religioso) del encartado no se estipulaba expresamente como agravante en la ley. Por último, en esta serie de consideraciones previas, hay que enfatizar que las disposiciones normativas posteriores (la vigente y otros cambios introducidos por el artículo 1° de la ley N° 9406 del 30 de noviembre de 2016 y que se consignaron al transcribir la normativa aplicable a esta fecha) no contemplaron regulaciones favorables para las personas acusadas, pues lo que hicieron fue aumentar las penas o la edad de la víctima para que se origine la agravante así como crear más causales de agravación. Por ende, no se dan las excepciones a las reglas de extractividad por aplicación retroactiva y hay que usar la ultraactividad o tipo penal (ya derogado) pero vigente a la fecha de los hechos acreditados. Ahora bien, lo que queda, en consecuencia, es verificar si hubo un aprovechamiento de la vulnerabilidad; si hubo incapacidad para resistir (inciso 2); si el autor era el tutor o el encargado de la guarda, custodia de la víctima o si el autor hizo prevalecer su relación de confianza. Empero, si se observa la acusación fiscal que se ha transcrito, no se menciona nada relacionado con vulnerabilidad, la tutela, guarda, custodia o educación entre sujetos activo y pasivo ni sobre la incapacidad para resistir. Lo que sí se refiere es un aprovechamiento de la inocencia de la víctima y de su relación de poder como sacerdote del procesado, pero esto no es equivalente a aquello. Eso implica que no se imputaron esas agravantes y, por ende, el tribunal no habría podido referirse a ellas, al menos no sin violentar groseramente el principio de correlación entre acusación y sentencia que integra, a su vez, el principio constitucional de debido proceso (artículo 365 del Código Procesal Penal y voto número 1739-92 de la Sala Constitucional). Queda por determinar, entonces, si el aprovecharse de la inocencia y de la relación de poder como sacerdote (que fue lo único que se mencionó en la pieza acusatoria) puede considerarse como parte de la relación de confianza (inciso 4 del artículo 161 del Código Penal vigente en 2005) y cómo se valoró eso en la sentencia de mérito. En esta, al analizarse la calificación jurídica y la pena a partir del considerando III, se estipuló: “De allí que en el presente caso, solo se tenga por acreditado los hechos constitutivos del delito de abuso sexual contra persona menor de edad ([Nombre 005].) que según lo preceptuado en el artículo 161 del Código Penal de forma abstracta (…) Conducta que se tiene por acreditada en su forma simple, pues la pieza acusatoria no describió ninguno de los agravantes descritos en la norma, a pesar de haber concurrido en el caso mérito a nivel fáctico. No obstante, este Tribunal es de derecho y le corresponde emitir el fallo con total objetividad en respeto de los principios del debido proceso, por lo que a efectos de violentar el derecho de defensa y de correlación entre acusación y sentencia los hechos de abuso sexual contra menor de edad se establecieron con la descripción simple del tipo penal referido. Bajo ese entendido se tiene que, el tipo penal de “Abuso Sexual” contiene una serie de elementos objetivos que describen la conducta penal posible a ser subsumida, lo cual se complementa con el tipo subjetivo y conforma el elemento inicial de la tipicidad. Tenemos que la forma como se expresa esta conducta ilícita alcanza la descripción típica de la misma y ampliada a otras situaciones que pueden ser de recibo dentro del principio de legalidad y que no necesariamente se recogen explícitamente en el numeral 161 del Código Penal. Como veremos, la característica común del delito de abuso sexual se expresa por medio la existencia de actos abusivos, los que se manifiestan de diversas formas y logra ir conformando, en forma genérica, un concepto de abuso capaz de acoger las diversas formas de aparición de estos. Por su parte, el bien jurídico protegido es la integridad sexual y sano desarrollo sexual del menor (sic). En el caso concreto, se tiene que el ofendido (sujeto pasivo) para el momento de los hechos tenía dieciséis años de edad y el imputado [Nombre 001] (sujeto activo), aprovechándose de la edad e inocencia de su víctima , realizó dos acciones abiertamente abusivas que lesionaron la integridad sexual del mismo, lo que perpetró durante espacio temporal de febrero a setiembre de dos mil cinco, teniéndose por acreditados dos delitos de abuso sexual (…) el acusado [Nombre 001], ejecutó dos acciones típicas tutelada por el derecho penal por cuanto abusó sexualmente de un menor de dieciséis años de edad, tocando su pene por debajo del boxer mientras se encontraba dormido, siendo en la segunda ocasión además de realizar una tocamiento idéntico, tocaba su pene suavemente, lo que fue percibido por el ofendido con el movimiento y una sensación de humedad en su espalda, esto con el único fin de satisfacer sus deseos sexuales impúdicos. Actos que para este tribunal resultaron totalmente abusivos y con una clara connotación sexual. Aunado a ello debe indicarse que el encartado procura realizar estos actos en la clandestinidad mientras el menor (sic) se encontraba dormido en la misma cama del imputado, por ser una persona de su confianza (…) el Tribunal, considera proporcional y razonable imponerle al encartado [Nombre 001], la sanción de tres años de prisión por cada delito de abuso sexual contra menor de edad, que se ha tendido por acreditado (…) Pena que también se impone atendiendo a las condiciones personales del ahora sentenciado, de tal forma que la sanción impuesta es proporcionar al reproche que debe hacérsele al imputado ajustándose claro está al principio de resocialización implícito en la pena y la posibilidad que este pueda reinsertarse en sociedad de forma satisfactoria, una vez que recapacite sobre sus actos y las afectaciones que ellos produjeron en las víctimas. Considera el Tribunal, que la sanción impuesta se ubica en los parámetros que prevé la Ley y guarda la proporción debida en torno a la culpabilidad del encartado y a la gravedad del ilícito.” (Cfr. folio 746 vuelto y siguientes, se suplen las negrillas). Nótese que el tribunal lo que señala es que si bien se demostró que había una relación de confianza y que el encartado se aprovechó de la vulnerabilidad de la víctima para cometer los dos hechos, nada de eso se acusó. Por ende, si se tomara en cuenta esa situación, se violaría el principio de correlación ya citado. Esta cámara no puede sino coincidir con el razonamiento y mostrar su preocupación no solo porque el error (en perjuicio de la víctima) haya quedado planteado en una pieza fiscal mal confeccionada, sino porque eso lo pretenda enmendar la fiscal, generando otro error (ahora en perjuicio del acusado), lo que implica, además, una invisibilización absoluta del principio de objetividad que debe guiar el actuar del ente acusador estatal (artículo 63 del Código Procesal Penal). Tener la condición de sacerdote o aprovecharse de la condición de poder no calza en las agravantes vigentes a la fecha de los hechos, por ende, el tipo básico aplicado (cuyo margen punitivo iba de los 3 a los 8 años de prisión) era el procedente y eso hace que deba rechazarse el recurso en cuanto pretende se tengan los hechos como agravados. Ahora bien, el que así haya sido, no significa que esa condición (de ministro religioso o de tener una posición de poder frente al ofendido) no pueda ser bastanteada dentro del marco punitivo previsto para el tipo simple (de tres a ocho años de prisión). Sin embargo, aunque sí puede serlo (pues, ciertamente, no es lo mismo que sea un extraño quien abuse a otra persona a que lo haga alguien que, por su condición, se ubica a sí mismo frente a la comunidad en una posición de superioridad ética y de asesoría espiritual), el tribunal optó por aplicar la pena mínima y no incrementar el extremo inferior indicando que la pena fijada (de tres años por cada hecho) era proporcional al reproche; se ajustaba a las condiciones personales del sindicado —que mencionó en diversas partes de la decisión, aunque no en este acápite específico, pero que pueden integrarse por tratarse la sentencia de una unidad de sentido— y aludió a los principios de proporcionalidad y resocialización. La fiscal apelante solo esboza tres argumentos para una pena mayor: i) que mediaba una agravante (tema que ya fue descartado); ii) que en conclusiones pidió una sanción superior y iii) que el encartado se valió de su relación como sacerdote y de la confianza que inspiraba. Esta cámara considera que la decisión sobre el monto punitivo debe mantenerse. En primer lugar, es menester indicar que el que se haya pedido una sanción superior o exista disconformidad con la fijada no es, por sí mismo, causal para anular la sanción ya que no hay un derecho (subjetivo) del ente fiscal a que se imponga una pena determinada. El o la fiscal, en tanto representante de una entidad de derecho público como es el Ministerio Público, es un parte formal (no sustancial en tanto no esboza una pretensión subjetiva propia sino solo una representación de intereses colectivos) y, por eso, no es titular de derecho alguno. Puede recurrir, ciertamente, si considera que las decisiones adoptadas son contrarias a derecho, pero esto es así porque el ordenamiento le otorga tal posibilidad (principio de bilateralidad de los recursos) y debe esbozar los argumentos concretos por los cuales está disconforme con una decisión judicial, dos de los cuales ya se dijo que no son procedentes. En segundo término, es preciso reconocer que, en el derecho costarricense, el tema de la motivación de la sanción es uno de los que incorpora ciertos niveles de discrecionalidad que, para que no se conviertan en arbitrariedad, requieren un mayor esfuerzo intelectivo (motivación completa y derivada; valoración de los principios rectores de resocialización, proporcionalidad, etc.), pero esto último no elimina, por completo, márgenes de acción para los órganos decisores que, en tanto cumplan con ellos, pueden adoptar decisiones que no son necesariamente compartidas pero están dentro de su órbita de discrecionalidad. Con esto se quiere decir que no hay un parámetro absolutamente objetivo para determinar por qué, en un caso específico en donde los rangos punitivos estipulados por el legislador sean, por ejemplo, de uno a seis meses de prisión, una pena de tres meses sea la adecuada y no una de dos o una de cuatro meses. Hay reglas, sí, para indicar si haber superado el mínimo estuvo bien o mal (si se valoraron doblemente los elementos objetivos del tipo, si no se siguió la determinación del caso-regla, si los argumentos empleados no son aceptables conforme a los principios que nos rigen, etc.) pero, fuera de eso, hay algún espacio de discrecionalidad no controlable. Así lo ha destacado este tribunal, con diversas integraciones. Por ejemplo, en el voto número 2013-2483 (L. García, R.

Chinchilla y K. Jiménez) se dijo: “ Es cierto que, en esta materia, no es posible establecer "tarifarios" para imponer las sanciones que, en esa medida, conforme lo reconoce la doctrina dominante, tienen una alta dosis de discrecionalidad. No obstante, para que ésta no se convierta en arbitrariedad, en casos límite como el presente (en que del monto a escoger depende la ejecución efectiva o no, por ejemplo; o, en otros en que de la pena impuesta en un segundo proceso depende la revocatoria de un beneficio en un proceso anterior, por ejemplo) resulta mucho más exigible que el Tribunal haga un esfuerzo motivacional mayor explicitando una especie de "caso-regla" (aquel descrito por el legislador y que, por cumplir los elementos objetivos básicos, que no pueden valorarse doblemente, admite la pena mínima) y parámetros objetivos de los que puedan establecerse circunstancias para incrementar el rigor punitivo (por ejemplo, presencia de varias agravantes, desde que el tipo solo requiere una) o para disminuirlo (por ejemplo, arrepentimiento que solo puede usarse para disminuir el reproche). En esta última línea argumental es imprescindible la consideración al fin resocializador de la sanción, que teóricamente asume nuestro legislador nacional (artículo 51 del Código Penal) y convencional (artículos 5 y 8 de la Convención Americana de Derechos Humanos).” Asimismo, bajo el nombre de Tribunal de Casación Penal de San José, en el voto número 2011-536 (S. Zúñiga, I, Estrada y A. Chirino) se refirió, inclusive, que no bastaba el caso-regla, sino que debía estarse al “umbral-normativo”: “El caso-regla estaría conformado por la mayor frecuencia del tipo de criminalidad de la que se trate, es decir, la forma común de comisión, sin especiales condiciones especializantes. A partir de ese “caso-regla” se buscan entonces condiciones que especializan (agravan) la forma de comisión frecuente o cotidiana de ese tipo de criminalidad. Ya el legislador tomó en cuenta algún tipo de “caso-regla” eso es evidente, y por ello incluyó circunstancias en abstracto que lo definen y que constituyen la forma de la criminalización, no obstante, es posible pensar que los extremos mínimos y máximos que también incluyó en la incriminación penal tendrán que ser decididos entre los casos que son “cotidianos” o “frecuentes” y aquellos que por su forma de ser realizados exceden las formas frecuentes del caso-regla. Este tipo de criterio chocaría con algunas dificultades: depende de la experiencia del juez en la valoración de un determinado grupo de casos; de si tiene experiencia -por haberlas juzgado en otros casos- en las diversas formas de comisión, y, por supuesto, de si su experiencia es suficiente para establecer una norma básica de criminalidad frecuente (caso-regla). Es por ello que Wolfgang Frisch, por ejemplo, prefiere el criterio normativo, y lo desarrolló a partir del “umbral normativo” (Wolfgang Frisch, “La dirección de la valoración de hechos para la fijación de la pena, aparecido en la Revista alemana Goltdammer´s Archiv del año 1989, pp. 338 y ss.; 366 y s.). Ese umbral normativo toma en cuenta la prohibición de doble valoración, y no considera por ejemplo los casos que tengan que ver estrictamente con la comisión cumpliendo taxativamente los requisitos establecidos en la tipicidad. Estos últimos casos tienen que ver, entonces, con las constelaciones de casos que se corresponden con el mínimo del monto de pena. Lo que exceda esas formas de comisión tenderán hacia el máximo del reproche.” (Se suplen los subrayados). Y esto se reiteró en el voto número 346-2010 de ese mismo órgano. En este asunto, si se sigue el caso-regla se puede convenir en que es más grave la conducta de un ministro religioso que tiene una relación de confianza respecto de quien no tiene esas condiciones. Sin embargo, tanto en esta teoría como en la del umbral-normativo no solo deben sopesarse las condiciones negativas del sujeto activo, sino también las positivas y, en este caso, de la prueba evacuada (que, se repite, se ponderó en diversos apartados de la sentencia aunque no en el de la sanción, lo que no obsta para que se deba integrar en esta decisión) deriva que: i) el encartado ha desplegado una importante obra social, buscando financiamiento para personas sin recursos, en riesgo social, a fin de que no solo obtuvieran sus alimentos sino fuentes de educación y dándoles seguimiento para que obtuvieran trabajos u oficios con los cuales adquiriesen independencia (que ni excluye ni justifica la comisión de los delitos); ii) el sindicado ha dado apoyo emocional para personas víctimas de otros tipos de violencia estructural (violencia intrafamiliar) al punto que la gran mayoría de testigos que se hicieron presentes lo enfatizaron; iii) el sindicado no presenta condenas previas. También, para fijar la pena, inclusive a partir del caso-regla, deben ponderarse las condiciones del delito y aunque los tocamientos que se efectuaron (aquí acreditados) contra el ofendido (únicas conductas que se pueden examinar, sin que puedan considerarse otras por las que se le eximió de sanción, pues, hacerlo, implicaría conculcar el principio de cosa juzgada) fueron graves (al punto que son delitos) no fueron de una intensidad tal y de una periodicidad constante, como otras que la práctica permite ver y que, sin duda alguna, inciden más profundamente en las secuelas emocionales y traumáticas de la persona perjudicada con ellas. Asimismo, la edad en que el ofendido resultó víctima no fue, tampoco, una tan baja como otras que la experiencia forense muestra y que, en esa medida, también generan mayores traumatismos y afectaciones al aparato psíquico y a la sana sexualidad. Por todo lo expuesto, ponderando todos esos aspectos y descartando los otros, jurídicamente improcedentes, en los que la apelante se basa para su reclamo, debe rechazarse el recurso en lo atinente a las sanciones por los delitos de abuso sexual contra persona menor de edad (dos delitos). Así las cosas, la pena total de seis años por estos eventos ha de mantenerse incólume y el recurso en este extremo debe ser rechazado. B) Eventos en perjuicio de [Nombre 003].: El suceso acreditado respecto de este ofendido se calificó como abuso sexual contra persona mayor de edad (artículo 162 del Código Penal) y sucedió en octubre de 2013. La acusación lo imputó en los siguientes términos: “ 1- Sin que se pueda precisar la fecha exacta, pero sí en el mes de julio del año dos mil doce , el ofendido [Nombre 003]. asumió la responsabilidad del ornamento de la [...], lugar donde conoció al sacerdote [Nombre 001], el aquí acusado, iniciando de este modo una relación de amistad y de confianza con él. 2- Sin que se pueda precisar fecha exacta pero si en la primera quincena del mes de octubre del año dos mil trece, en horas de la tarde, el aquí acusado [Nombre 001], aprovechándose de la relación de amistad y de confianza que tenía con el agraviado [Nombre 003] lo invitó a él y al sacristán [Nombre 022] a ver una película en su dormitorio el cual está dentro de la Casa Cural que se encuentra contiguo a la Iglesia (…) petición que el ofendido consintió, por lo que, sin precisar hora exacta, pero entre las catorce y las dieciséis horas, tanto el señor [Nombre 022] como el ofendido [Nombre 003] se presentaron al dormitorio del aquí encartado. 3- Una vez en dicho aposento, el acusado [Nombre 001], aprovechando que el agraviado [Nombre 003] estaba sentado en la cama, con el único fin de satisfacer sus deseos libidinosos y de manera abusiva, le pasó el codo sobre la pierna y luego, con su mano izquierda le tocó al agraviado el pene y cerca del ano, por encima de la ropa, y de seguido se sacó su pene y se realizó movimientos masturbatorios frente al agraviado.” (el destacado es suplido). Al día de hoy (2021) el tipo penal que contempla esta materia estipula:

«Abusos sexuales contra las personas mayores de edad Artículo 162- Abusos sexuales contra las personas mayores de edad. Quien de manera abusiva realice actos con fines sexuales contra una persona mayor de edad, o la obligue a realizarlos al agente, a sí misma o a otra persona, siempre que no constituya delito de violación, será sancionado con pena de prisión de dos a cuatro años.

La pena será de tres a seis años de prisión cuando:

El autor se aproveche de la vulnerabilidad de la persona ofendida, o esta se encuentre incapacitada para resistir, o se utilice violencia corporal o intimidación.

El autor sea ascendiente, descendiente, hermana o hermano de la víctima.

El autor sea tío, tía, sobrina, sobrino, prima o primo de la víctima.

El autor sea madrastra, padrastro, hermanastra o hermanastro de la víctima.

El autor sea el tutor o el encargado de la educación, guarda o custodia de la víctima.

El autor realice la conducta contra alguno de los parientes de su cónyuge o conviviente, indicados en los incisos 3) y 4) anteriores. 7) El autor se prevalezca de su relación de confianza con la víctima o su familia, medie o no relación de parentesco.» (Se suplen las negritas). Sin embargo, esta regulación rige gracias a la aprobación del artículo único de la ley para restituir la pena por abusos sexuales contra las personas mayores de edad, N° 9584 del 4 de julio de 2018 . Ya se dijo, en el anterior acápite (y ahora debe retomarse y ampliarse la idea) que la regulación jurídica de los delitos sexuales en Costa Rica ha sufrido múltiples reformas que tornan dificultosa la aplicación de la ley y, en muchos casos, dada la errónea técnica legislativa que se usa, más bien generan despenalizaciones. Eso sucedió con el tema del abuso sexual contra personas adultas (mayores de edad) y sin discapacidad. El Código Penal, ley No. 4573 publicado en La Gaceta del 15 de noviembre de 1970, originalmente no contemplaba la conducta específicamente regulada. Si bien había un tipo penal de abusos “deshonestos” (artículo 161) en que no se establecía la edad de la víctima, sí se requería que se diera alguna de las circunstancias de la violación previstas en el numeral 156 ibidem (entre las que se mencionaba ser menor de 12 años, estar privada de razón, incapacitada para resistir o sufrir violencia corporal o intimidación). También estaba previsto, en el artículo 162, el delito de estupro, que implicaba relaciones “consentidas” en edades en que en era admisible el consentimiento y que, por eso, no tienen relación con el supuesto de hecho que nos ocupa. Luego, el artículo 1º de la ley No. 7899 del 3 de agosto de 1999 introdujo, bajo el artículo 162 del Código Penal, el abuso sexual contra personas mayores de edad, elaborando un texto del que la Sala Constitucional, por medio de las sentencias número 6304-2000 y número 10140-2001 declaró inconstitucionales las penas, haciendo inaplicable el numeral, en la medida en que la sanción solo estipulaba un mínimo y máximo, pero no se indicaba de qué naturaleza era ¿prisión, multa, arresto domiciliario? Para subsanar el yerro, se emitió la ley N° 8002 del 8 de junio del 2000. Otra reforma adicional se hizo mediante el artículo 1 de la ley N° 8590 (denominada “Ley de Fortalecimiento de la Lucha Contra La Explotación Sexual de las Personas Menores de Edad mediante la reforma y adición de varios artículos al Código Penal, Ley Nº 4573, y reforma de varios artículos del Código Procesal Penal, Ley Nº 7594”) del 18 de julio del 2007 y el último en 2018 ( ley para restituir la pena por abusos sexuales contra las personas mayores de edad, N° 9584 del 4 de julio), que es la que está vigente pero no lo estaba al momento del hecho (artículo 11 del Código Penal). Como el evento acreditado se ubica durante 2013, las primeras normativas no interesan sino, solo, a partir de la del año 2010, ocasión en la que el texto estipulaba:

«Abusos sexuales contra las personas mayores de edad Artículo 162.- Si los abusos descritos en el artículo anterior se cometen contra una persona mayor de edad, la pena será de dos a cuatro años de prisión.

La pena será de tres a seis años de prisión cuando:

El autor se aproveche de la vulnerabilidad de la persona ofendida, o esta se encuentre incapacitada para resistir o se utilice violencia corporal o intimidación.

El autor sea ascendiente, descendiente, hermana o hermano de la víctima.

El autor sea tío, tía, sobrina, sobrino, prima o primo de la víctima. 4) El autor sea madrastra, padrastro, hermanastra o hermanastro de la víctima.

El autor sea el tutor o el encargado de la educación, guarda o custodia de la víctima.

El autor realice la conducta contra alguno de los parientes de su cónyuge o conviviente, indicados en los incisos 3) y 4) anteriores.

El autor se prevalezca de su relación de confianza con la víctima o su familia, medie o no relación de parentesco.» (Se suplen los destacados).

Luego de ello solo hay una ley (la de 2018, no aplicable al caso por la fecha de los hechos). ¿Por qué se introdujo? Según su nombre lo indica “para restablecer la penalidad” y esto fue así porque si se observa la primera parte del numeral 162 que se acaba de citar (es decir, mediante la reforma de 2007, el artículo iniciaba diciendo “Si los abusos descritos en el artículo anterior ”. De previo a muchos de esos cambios, como es lógico pensar siguiendo la secuencia numérica, antes del artículo 162 estaba el 161, el cual describía la conducta prohibida (abusos sexuales para personas menores de edad). Sin embargo, producto del activismo legislativo, se agregaron artículos con un “bis”. Eso ocurrió entre el 162 y el 161, de modo que se ubicó un 161 bis, con lo cual cambió de contenido el tipo penal de abuso sexual contra personas mayores de edad y, al hacerlo, quedó exenta de sanción la conducta. Esto se reseña mejor en un anterior pronunciamiento de esta cámara, voto número 2020-1995 dictado con una integración parcialmente diferente a esta (R. Chinchilla, P. Vargas y A. Herrera con nota de las primeras) en el que, además, se mencionan las razones por las que, a pesar de que hubo una aparente despenalización la conducta, esta no puede ser aplicada a este caso. Las juezas Chinchilla y Vargas externaron su criterio y el de diversas integraciones de esta cámara, haciendo un recuento detallado de lo acaecido (criterio que es avalado por la totalidad de esta integración): «IV. Nota de las juezas Chinchilla Calderón y Vargas González: Las suscritas consideramos importante también indicar que los hechos acreditados datan del 22 de agosto de 2017. El actual artículo 162 del Código Penal, que contempla el abuso sexual contra personas mayores de edad, fue reformado mediante ley No. 9584 del 04 de julio de 2018, normativa que no en vano se denominó “Reforma del artículo 162 de la ley no. 4573, Código Penal (…) para restituir la pena por abusos sexuales contra las personas mayores de edad.” Esto fue necesario porque antes, mediante ley No. 8874 del 24 de setiembre de 2010, se efectuó una modificación a la ley penal que tuvo como efecto no previsto el dejar sin contenido a este tipo penal pues la redacción anterior a la vigente remitía a “Los abusos descritos en el artículo anterior” y numeral anterior que le daba contenido era el 161 del Código Penal. Pero luego, con esa ley se introdujo un numeral 161 bis, lo que hizo que la referencia al “artículo anterior” remitiera a ese 161 bis que no contemplaba ninguna conducta delictiva. Es decir, entre el 24 de setiembre de 2010 y el 04 de julio de 2018 (lapso durante el cual se ubican los hechos de la presente causa) por error legislativo esa conducta no podía ser sancionada, al menos no si se respeta, como debe hacerse en un Estado de Derecho, el principio de legalidad, que implica el uso de la interpretación gramatical como la más restrictiva . Al respecto esta misma cámara, con diferentes integraciones, a través del voto número 2018-1065 del 10 de agosto de 2018 (A. Solís, R. Chinchilla y R. Obando) indicó: «(B) En cuanto a la tipicidad del delito de abuso sexual contra persona mayor de edad, esta Cámara, con una integración parcialmente distinta (A. Solís, R. Chinchilla y J. Campos), ha dicho: "(...) A través de las resoluciones número 2014-414 (Nota de la jueza Chinchilla), 2014-1367 (Solís, Campos y Rivera), 2015-171 (Campos, Chinchilla y García) y 2015-205 (Voto salvado de la jueza Solís), quienes integramos esta Cámara de apelación nos pronunciamos respecto a la despenalización del abuso sexual contra persona mayor de edad, debido a que el numeral 162 del Código Penal sancionaba como tal las acciones descritas en el "artículo anterior"; pero este -luego de la reforma que introdujo el artículo 161 bis- al remitir a la norma que le antecedía, ya no sancionaba conducta alguna (como sí la describía el numeral 161 del Código Penal), pues el 161 bis no describía acciones, sino que tenía disposiciones comunes respecto a los delitos que estaban ubicados de previo a él. Así, en virtud del principio de legalidad, consideramos que no era factible hacer interpretaciones extensivas con el fin de mantener la vigencia de un delito que había quedado sin contenido alguno respecto a la acción que lo configuraba, concluyendo que el abuso sexual contra persona mayor de edad había sido despenalizado por un error legislativo. No obstante, la Sala Constitucional, con posterioridad a estas decisiones, a través de la resolución 2015-2675, de las 9:05 horas del 25 de febrero de 2015, a raíz de una acción de inconstitucionalidad planteada contra los artículos 161 y 162 del Código Penal, indicó lo siguiente: "(...) en el caso del artículo 162 del Código Penal, la Sala no estima vulnerado el principio de legalidad y tipicidad en materia penal, teniendo en cuenta que la conducta que se sanciona sí ha sido claramente determinada en el artículo 161 del Código Penal. En este orden, aunque la redacción del artículo 162 del Código Penal no es muy feliz, no se considera que lesione los principios aludidos, habida cuenta que el Legislador, con la aprobación de la Ley No. 8874, del 24 de septiembre de 2010, y con la introducción del artículo 161 bis, en ningún momento pretendió despenalizar la sanción prevista en el artículo 162 del Código Penal. Todo lo contrario, es evidente por su redacción que remite al artículo 161 del Código Penal, considerando que la alusión a "los abusos descritos" solo tiene sentido si se vincula con ese precepto legal, es decir el artículo 161 del Código Penal, que es el que sistemática e históricamente, le da su razón. En este orden, la Sala concluye que la ley, en sus términos actuales, es lo suficientemente clara como para que el ciudadano tenga la seguridad de conocer cuáles son las acciones que sanciona el artículo 162, con su remisión al artículo 161 del Código Penal. Sin justificar la ausencia de rigor o de técnica legislativa en el caso presente -que bien pudo haber adicionado la norma con mayor pericia o habilidad-, lo cierto es que el adverbio numeral latino bis significa dos veces y añadido a cualquier número entero indica que tal número se ha repetido por segunda vez (así, Diccionario de la Real Academia Española, 21ª edición, Madrid, 1992, pág. 207), de tal manera que, así también se puede entender que el artículo 162 se refiere al entero 161 (que se vino a complementar con el 161 bis), en el tanto que resulta evidente que la Ley No. 8874 no ha derogado expresa ni tácitamente el delito de «Abusos sexuales contra las personas mayores de edad» previsto en el artículo 162. En suma, lo que sucede es que se agregó un nuevo artículo que literariamente vino a ubicarse inmediatamente antes del 162, pero que no derogó ni modificó el 161, el cual sigue estando vigente y es al que a todas luces se refiere aquel (el artículo 162) para aludir a conducta que tipifica, con la variante de que la víctima es una persona mayor de edad". Tomando en cuenta lo anterior, aunque no compartimos el criterio emitido por el Tribunal Constitucional, debemos aplicarlo, tal y como se ordenó en la resolución transcrita, en atención a lo preceptuado en el artículo 13 de la Ley de la Jurisdicción Constitucional, el cual señala que: "La jurisprudencia y los precedentes de la jurisdicción constitucional son vinculantes erga omnes, salvo para sí misma" (Tribunal de Apelación de Sentencia Penal del Segundo Circuito Judicial de San José, resolución número 1273, de las 10:30 horas del 8 de setiembre de 2016. En el mismo sentido y de la misma Cámara, las resoluciones número 1521, de las 9:45 horas del 31 de octubre de 2016 y 1029, de las 11:00 horas del 3 de agosto de 2018). Este criterio se mantiene por parte de quienes suscriben esta decisión, y tiene mayor sentido porque, mediante la ley número 9584 publicada en el Alcance número 136 de La Gaceta número 137, del 30 de julio de 2018 se modificó el artículo 162 del Código Penal y en su contenido indica: "Quien de manera abusiva realice actos con fines sexuales contra una persona mayor de edad, o la obligue a realizarlos al agente, a sí misma o a otra persona, siempre que no constituya delito de violación, será sancionado con pena de prisión de dos a cuatro años". No obstante, esta disposición no podría aplicarse a estos acontecimientos, ya que es una norma posterior, lo que infringiría el principio de irretroactividad de la ley penal, el cual se contempla en el artículo 34 de la Constitución Política cuando indica que: "A ninguna ley se le dará efecto retroactivo en perjuicio de persona alguna, o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas"; además, el numeral 11 del Código Penal establece que "Los hechos punibles se juzgarán de conformidad con las leyes vigentes en la época de su comisión", cuya excepción es por la existencia de una ley posterior más favorable, pero este no es el caso que se presenta en este asunto. No obstante lo dicho, como se señaló supra, por existir una resolución vinculante emitida por el Tribunal Constitucional (artículo 13 de la Ley de la Jurisdicción Constitucional que sostenía la vigencia de la conducta antes de esa reforma), esta Cámara debe aplicar el artículo 162 del Código Penal (en su redacción vigente para la fecha de los hechos), estableciendo que la descripción de la conducta típica está en el numeral 161 de ese mismo cuerpo legal.» (Los destacados se suplen). Ese criterio es compartido por las firmantes que, entonces, consideramos que la conducta (…) era atípica al momento de los hechos, es decir, por el error legislativo antes referido para ese entonces no podía usarse el tipo penal precedente (que remitía a un artículo anterior para darle contenido el cual fue modificado al introducirse el bis y eliminarle ese contenido) ni por la actual (pues tal cosa implicaría una aplicación retroactiva de la ley penal, lo que no es constitucional ni convencionalmente posible). Sin embargo, al existir un voto vinculante del órgano constitucional que debe ser aplicado, debe acatarse, por lo que las personas firmantes salvamos nuestra responsabilidad por la forma en que se da dicha condena.» (Se suplen los destacados). En síntesis, para este tribunal, en el lapso del 24 de setiembre de 2010 (en que se emitió la ley No. 8874 que creó el 161 bis del Código Penal) y el 04 de julio de 2018 (en que se emitió la ley N° 9584 del 4 de julio para restablecer la penalidad del abuso sexual contra persona mayor de edad) la citada conducta estaba despenalizada y como es en ese período durante el cual se ubican los hechos de la presente causa (2013) cabría hacer la exoneración de responsabilidad penal del sindicado, según el criterio de este cuerpo judicial. Empero, como la Sala Constitucional tuvo una posición distinta a través del voto número 2015-2675, de las 9:05 horas del 25 de febrero de 2015, emitido en una acción de inconstitucionalidad expresa sobre ese punto y como su jurisprudencia es vinculante erga omnes (artículo 13 de la Ley de la Jurisdicción Constitucional) esta cámara no puede sino atenerse a este pronunciamiento, haciendo la salvedad, eso sí, que si de ello derivara alguna responsabilidad para el Estado costarricense, esta recae en el citado órgano y no en las suscritas, cuyo criterio personal es diverso al resuelto por el tribunal constitucional pero este último nos resulta de obligado acatamiento al punto que inobservarlo nos generaría responsabilidad. Adicional a lo anterior, interesa destacar que en las dos últimas leyes (la vigente para la fecha de los hechos cuya conducta no se especificaba y la posterior, válida hoy y surgida para restablecer la penalidad) el marco punitivo del tipo base (dos a cuatro años de prisión) y el del tipo agravado (tres a seis años de prisión) es el mismo y las causales de agravación permanecen inmodificables. Es decir, la última no fue una ley posterior más beneficiosa para la persona acusada. El tribunal, al fijar la sanción, impuso dos años de prisión por el abuso sexual contra persona mayor de edad. Así consta en la emisión de la parte dispositiva, aunque luego, cuando se dicta la sentencia integral, hay algunos yerros al respecto. La fundamentación del tema es parca y debe leerse en conjunto con los argumentos expresados para el otro ofendido (en donde se enfatizó que el ente fiscal no imputó adecuadamente las agravantes y que por eso no podían considerarse). Sin embargo, si se observa el hecho acusado 2 sí se dice que el encartado se aprovechó de su relación de confianza, en el hecho 1 se describe desde cuándo se conocían y cómo se había originado tal relación y en la agravante estipulada en el inciso 7 sí se prevé la relación de confianza como agravante (para una pena mínima de tres años). Probablemente el tribunal se percató de esto al emitir la sentencia integral (cuando ya estaba la parte dispositiva que no se podía cambiar) y ello explique el siguiente error: “Asimismo se ha tenido por acreditado, un delito de abuso sexual contra persona mayor de edad, en su forma simple por encontrarse problemas de imputación en cuanto a los agravantes del tipo. Lo anterior, por hechos ocurridos en perjuicio de [Nombre 003], estableciéndose que el imputado de forma abusiva y sorpresiva, tocó el pene y ano del agraviado por encima de su ropa , lesionando de esta manera el bien jurídico tutelado sea su integridad sexual (…) el Tribunal, considera proporcional y razonable imponerle al encartado [Nombre 001], la sanción de tres años de prisión por cada delito de abuso sexual contra menor de edad, que se ha tendido por acreditado, así como tres años de prisión por el delito de Abuso Sexual contra mayor de edad que se tuvo por acreditado, siendo el total de la pena a imponer de 8 años de prisión.” (El destacado es suplido). Nótese que si se impusieron tres años por cada delito y eran tres delitos en total (dos ofendidos diferentes) la simple aritmética hace que la suma de los montos dé, como resultado, nueve años de prisión en total, pero la sentencia alude a un monto global de ocho. Si se observa la parte dispositiva de folios 697 y 748 vuelto, se notará que se había fijado una sanción de dos años por este evento, que es la mínima para el tipo penal base, sin la agravante, que fue lo que el tribunal quiso hacer al excluir la agravante sin ulterior justificación. Por ello, por esta razón y no por las otras que expone la recurrente (que, de no existir ese error, habrían podido abordarse de forma similar a lo dicho para el otro afectado) solo en este tema (¿calificación legal simple o agravada? y monto de pena) debe acogerse el reclamo, anularse la sentencia únicamente respecto del delito de abuso sexual contra persona mayor de edad en perjuicio de [Nombre 003].. Véase que ese yerro no puede ser enmendado por este tribunal pues si se considerara que se trató de un simple error de sumas y que el órgano a quo quiso fijar los montos mínimos del tipo agravado (tres años, para un total de nueve y no de ocho como dijo), se choca con el argumento del tribunal de que la acusación no había descrito agravante alguna cuando eso sucedió y que se iba a usar el tipo simple, lo que impide rectificar de esa manera el tema. Si, por otro lado, se pretendiera enmendar el error mediante la escogencia del monto mínimo de pena del tipo base (dos años, para una suma correcta de ocho, que es lo que se impuso en la parte dispositiva) se estaría escogiendo el monto de pena del tipo simple y se avalaría un argumento del órgano de instancia (que no hubo una adecuada imputación de la agravante) cuando, en este caso, sí se dio y esto tornaría en contradictoria la decisión. Por lo expuesto, debe decretarse dicha nulidad y ordenarse el reenvío, momento en que, además, las partes, si lo tienen a bien, podrán reconducir la discusión sobre la eventual despenalización referida por los cambios legislativos a las vías constitucionales correspondientes.

VII.- Sobre la vigencia de la acción penal, los cambios normativos operados y su aplicabilidad al caso. Habiéndose descartado las quejas relativas a la determinación del hecho, la valoración de la prueba y el adecuado encuadro jurídico-penal de los hechos probados, es necesario analizar la vigencia de la acción penal en cada evento. Este análisis es importante porque, al tenor de lo estipulado en los artículos 42, 459 y 462 del Código Procesal Penal, este tribunal está obligado a revisar, aún de oficio (pues nadie lo plantea en este asunto), cualquier violación al debido proceso que se pueda producir para garantizar el derecho al recurso estipulado en el artículo 8.2.h de la Convención Americana sobre Derechos Humanos. El que se haga el juzgamiento solo mientras esté vigente la acción penal integra ese principio del debido proceso (ver voto número 2216-2001 de la Sala Constitucional). Si a ello se suma que los eventos acreditados son bastantes lejanos en el tiempo: 2005 (delito de abuso sexual contra persona menor de edad) y 2013 (abuso sexual contra persona mayor de edad) y por haberse dado múltiples reformas tanto la legislación de fondo (que estatuye los rangos de penas a partir de los cuales se contabilizan los plazos de prescripción) como la procesal (que ha definido a partir de qué momento iniciar, interrumpir o suspender los cómputos de prescripción de la acción penal) resulta imprescindible un escrutinio a fondo del tema para determinar si, tanto respecto a los hechos por los que se dio la condena que persiste según lo dicho, como aquel para el que se ordena el reenvío por el monto de la pena. Lo primero que se impone es fijar la ley (de fondo y procesal) aplicable en materia de prescripción de cada uno de estos eventos. (A.1) Hechos en perjuicio de [Nombre 005]. (menor de edad): Estos sucesos en perjuicio de [Nombre 005]. se ubican cuando él era menor de edad (de 16 años) y durante el año 2005, fecha en que el tipo penal aplicable (por las consideraciones expuestas en el considerando V.A, al que se remite) era el siguiente:

«Abusos sexuales contra personas menores de edad e incapaces ARTÍCULO 161.- Quien de manera abusiva realice actos con fines sexuales contra una persona menor de edad o incapaz o la obligue a realizarlos al agente, a sí misma o a otra persona, siempre que no constituya delito de violación, será sancionado con pena de prisión de tres a ocho años.

La pena será de cuatro a diez años en los siguientes casos:

Cuando la persona ofendida sea menor de doce años.

Cuando el autor se aproveche de la vulnerabilidad de la persona ofendida o esta se encuentre incapacitada para resistir o se utilice violencia corporal o intimidación.

Cuando el autor sea ascendiente, descendiente, hermano por consanguinidad o afinidad, padrastro o madrastra, cónyuge o persona que se halle ligado en relación análoga de convivencia, tutor o encargado de la educación, guarda o custodia de la víctima.

Cuando el autor se prevalece de su relación de confianza con la víctima o su familia, medie o no relación de parentesco.» Partiendo del primer párrafo (tipo simple aplicado por el a quo) el monto de prisión en ocho años era el máximo posible y generaba el tope del plazo de prescripción (artículo 31 inciso 1 del Código Procesal Penal) que, reducido a la mitad por el inicio del proceso y la existencia de actos interruptores (y sin perjuicio de lo que se dirá sobre la forma de iniciar el cómputo por tratarse la víctima de una persona menor de edad a la fecha de los hechos) haría cuatro años. Ahora bien, respecto a las reglas de prescripción de la acción penal hay que indicar que este caso presenta una importante complejidad, pues involucra diversos cambios legales: la ley No. 7594 vigente desde 1998 (emisión del Código Procesal Penal original) y las reformas por leyes No. 8590 de 2007, 9057 de 2012, 9685 de 2019 y 9826 de 2020. En la primera presentación del articulado, desde la vigencia del Código Procesal Penal en 1998 (ley No. 7594) y el 18 de julio de 2007, la legislación procesal no estipulaba ninguna distinción si los hechos sucedían en perjuicio de personas menores de edad o si se trataba de delitos sexuales, sino que la regla de prescripción estaba dada solo por el transcurso del tiempo máximo de pena, reducido o no a la mitad según se diera actos suspensivos o interruptores. La primera regulación diferenciada para delitos sexuales y en perjuicio de niños y niñas operó, justamente, a través de la segunda versión de la norma, ley No. 8590 del 18 de julio de 2007 que introdujo una reforma al inciso a) del artículo 31 del Código Procesal Penal para que se leyera de la siguiente forma:

“Si no se ha iniciado la persecución penal , la acción prescribirá:

• a)Después de transcurrido un plazo igual al máximo de la pena, en los delitos sancionables con prisión; no podrá exceder de diez años ni ser inferior a tres, excepto en los delitos sexuales cometidos contra personas menores de edad, en los cuales la prescripción empezará a correr a partir de que la víctima haya cumplido la mayoría de edad.” (Se suple el destacado).

Como los hechos se tuvieron por acreditados en 2005 desde el primer día del primer mes de ese año (pues la acusación no especifica fecha en el año 2005 por lo que, en atención a los hechos más favorables para el encartado —artículo 9 del Código Procesal Penal—, hay que pensar que se dio al inicio de ese año) hasta que entró en vigor la ley No. 8590 el 18 de julio de 2007 transcurrieron dos años, seis meses y 18 días. Ahora bien, esta ley es procesal y de orden público y, por ende, en criterio vinculante de la Sala Constitucional (ver votos número 4397-99 y 11517-2000 ), rige a partir de la fecha de su vigencia, aún para procesos pendientes. Entonces, a partir del 18 de julio de 2007 cambiaron las reglas del juzgamiento de este tipo de hechos, pero eso aplica a este caso si y solo si, para entonces: i) este ofendido aún hubiese sido menor de edad porque, por un lado, no podría dársele efecto retroactivo a la ley en perjuicio del encartado (artículo 34 constitucional) y, por el otro, de no serlo, ya no se cumpliría el supuesto de hecho contemplado en esa normativa y ii) siempre que el proceso no hubiese iniciado porque, de haberlo hecho, no se daría la condición suspensiva que encabeza el numeral ni se cumpliría el fin pretendido por la norma cual es que por ni tener la persona afectada la madurez emocional o la representación eficiente de un tercero, los hechos en su perjuicio queden impunes. Como [Nombre 005]. nació el 03 de setiembre de 1988 según se probó (ver hechos acreditados de la sentencia de mérito), cumplió los 18 años el 03 de setiembre de 2006. Es decir, para la fecha en que entró en vigor la nueva ley (No. 8590 el 18 de julio de 2007 ) ya el ofendido había cumplido la mayoría de edad, por lo cual esa ley no resultaba aplicable a su situación y aquel plazo de ocho años (del que ya habían transcurrido dos años, seis meses y 18 días) seguía su curso a la espera de ver si se computaba reducido a la mitad cuando se diera un acto suspensivo o interruptor. Ahora bien, el panorama no concluye ahí. Mediante ley No. 9057 del 23 de julio de 2012 se reformó por tercera vez el citado numeral para que se leyera así:

“Si no se ha iniciado la persecución penal , la acción prescribirá:

• a)Después de transcurrido un plazo igual al máximo de la pena, en los delitos sancionables con prisión, no podrá exceder de diez años ni ser inferior a tres, excepto en los delitos cometidos contra personas menores de edad, en los cuales la prescripción empezará a correr a partir de que la víctima haya cumplido la mayoría de edad.” (Se suple el destacado).

Como puede verse, lo que hizo fue eliminar la referencia solo a delitos sexuales en perjuicio de personas menores de edad y extenderla a todo tipo de delitos en perjuicio de dicha población. Como este asunto, por el tipo de delito (no así por la edad de la víctima), ya estaba comprendido en la primera lista, el cambio referido no tiene mayor trascendencia aquí. Una cuarta modificación a esa disposición se dio en 2019, a través de la ley N° 9685 del 21 de mayo de 2019 denominada “Ley de Derecho al Tiempo, reforma Código Penal para ampliar el plazo de prescripción de la acción penal en casos de delitos sexuales contra personas menores de edad o sin capacidad volitiva o cognoscitiva”. A raíz de esta regulación, el citado artículo 31 del Código Procesal Penal debía leerse de este modo:

«ARTICULO 31.- Plazos de prescripción de la acción penal. Si no se ha iniciado la persecución penal , la acción prescribirá:

Después de transcurrido un plazo igual al máximo de la pena, en los delitos sancionables con prisión, no podrá exceder de diez años ni ser inferior a tres, excepto en los delitos cometidos contra personas menores de edad, en los cuales la prescripción empezará a correr a partir de que la víctima haya cumplido la mayoría de edad.

(Así reformado el inciso anterior por el artículo 1° de la ley N° 9057 del 23 de julio de 2012, "Reforma de varias leyes sobre la Prescripción de Daños causados a Personas Menores de Edad") A los dos años, en los delitos sancionables sólo con penas no privativas de libertad y en las faltas o contravenciones.

Veinticinco años después de que la víctima cumplió la mayoría de edad , cuando se trate de delitos sexuales cometidos contra personas menores de edad o sin capacidad volitiva o cognoscitiva. La regla anterior aplicará indistintamente para todo autor, cómplice o partícipe responsable del respectivo hecho punible, siempre que al momento de delinquir hayan adquirido la mayoridad.» (Se suple el destacado). Véase que esta disposición distingue los delitos de diversa naturaleza contra personas menores de edad pues todos los que no sean sexuales se regirían por el inciso a) (y la prescripción corre desde que las víctimas tengan 18 años de edad) y los delitos sexuales en detrimento de esta población se regularían por el inciso c) y la prescripción de la acción penal corre 25 años después de adquirida la mayoría de edad, es decir, a partir de los 43 años de edad de la víctima. Son múltiples las críticas que puedan hacérsele a esa regulación pues, en primer lugar, si se parte de la jerarquía de los bienes jurídicos establecida constitucionalmente y en la doctrina de los derechos humanos, es razonable que los hechos que atenten contra el mayor valor sean los reprimidos más drásticamente, tanto en cuanto a los tipos y montos de pena como respecto de las previsiones estipuladas para evitar su impunidad (plazos de prescripción, etc.). En esa lógica, por ejemplo, los atentados contra la vida (homicidios tentados pues la víctima debe estar en posición de poder denunciar—, genocidio, etc.) deberían tener un plazo de prescripción mayor respecto al que tienen ilícitos que si bien atentan contra bienes jurídicos esenciales para el desarrollo de la persona (su libertad sexual) no son del mismo rango de aquellos. Por otro lado, el plazo estipulado (de 25 años posteriores a la mayoría de edad) alude a “delitos sexuales” que involucran una amplia gama de ilícitos que inciden, de muy diversa forma, en el bien jurídico tutelado y que no son necesariamente equiparables: violación, abuso sexual, relaciones sexuales remuneradas, relaciones impropias, turismo sexual, difusión de pornografía, rapto impropio, corrupción, proxenetismo, rufianería, trata de personas, acoso sexual callejero, etc. Aquí la pregunta que debe formularse es ¿por qué 25 años para todos los delitos, aunque estos son de diversa gravedad? Finalmente, la última crítica radica en ¿cuál fue el parámetro estipulado para hacer la fijación de esos 25 años? Inclusive en otros continentes, tratados específicos sobre el tema, como el Convenio del Consejo de Europa para la Protección de los Niños contra la Explotación y el Abuso Sexual (conocido como Convenio de Lanzarote), ratificado por 45 de los 47 países integrantes del Consejo (y aunque, abierto a la suscripción de países no europeos, no ha sido firmado ni ratificado por Costa Rica) establece que: “Cada Parte adoptará las medidas legislativas y de otro tipo que sean necesarias para que el plazo de prescripción para iniciar actuaciones judiciales en relación con los delitos tipificados con arreglo a los artículos 18, 19, apartado 1.a) y b), y 21, apartado 1.a) y b), tenga la duración suficiente para permitir el inicio efectivo de dichas actuaciones después de que la víctima haya alcanzado la mayoría de edad y sea proporcional a la gravedad del delito de que se trate.” [El destacado es propio]. Es decir, si bien la tendencia a generar plazos diferenciados de prescripción para delitos en perjuicio de personas menores de edad es parte del derecho internacional de los derechos humanos, no debe renunciarse al tema de la proporcionalidad que, en la ley citada, parece haberse abandonado. Esas y otras críticas a la regulación pueden consultarse en el trabajo de investigación de Quesada Jiménez, Jorge Luis (2020). Imprescriptibilidad solapada de los delitos sexuales cometidos contra personas menores de edad o mayores de edad sin capacidad volitiva o cognoscitiva. Maestría en Ciencias Penales, Universidad de Costa Rica. Sin embargo, aunque no son temas menores, no se profundizará en ellos, al carecer de consecuencias para el caso específico. La quinta y última variación del numeral referido en este tema (pues también se varió respecto a la responsabilidad de las personas jurídicas, pero ese tema no interesa acá) generó la versión actual, que desde el 10 de marzo de 2020 según ley No. 9826 se lee así:

ARTICULO 31.- Plazos de prescripción de la acción penal. Si no se ha iniciado la persecución penal, la acción prescribirá:

Después de transcurrido un plazo igual al máximo de la pena, en los delitos sancionables con prisión, no podrá exceder de diez años ni ser inferior a tres, excepto en los delitos cometidos contra personas menores de edad, en los cuales la prescripción empezará a correr a partir de que la víctima haya cumplido la mayoría de edad.

(Así reformado el inciso anterior por el artículo 1° de la ley N° 9057 del 23 de julio de 2012, "Reforma de varias leyes sobre la Prescripción de Daños causados a Personas Menores de Edad") A los dos años, en los delitos sancionables solo con penas no privativas de libertad y en las faltas o contravenciones, excepto en los delitos cometidos por personas jurídicas, en los cuales la prescripción será de diez años.

(Así reformado el inciso anterior por el artículo 41 de la ley sobre la Responsabilidad de las personas jurídicas sobre cohechos domésticos, soborno transnacional y otros delitos, N° 9699 del 10 de junio del 2019) Veinticinco años después de que la víctima cumplió la mayoría de edad, cuando se trate de delitos sexuales cometidos contra personas menores de edad y a los veinticinco años desde la consumación del hecho punible, del último acto de ejecución de la tentativa o del cese del delito continuo, según corresponda, cuando estos delitos sean cometidos contra personas mayores de edad sin capacidad volitiva o cognoscitiva. La regla anterior aplicará indistintamente para todo autor, cómplice o partícipe responsable del respectivo hecho punible, siempre que al momento de delinquir hayan adquirido la mayoridad.

(Así reformado el inciso anterior por el artículo único de la ley N° 9826 del 10 de marzo del 2020).

Este cambio tampoco aplica a este caso, por no ser el delito contra personas sin capacidad cognoscitiva o volitiva que fue lo que se introdujo. Luego de ese recuento, interesa destacar la ley N° 9685 del 21 de mayo de 2019 que aludió a la prescripción penal transcurridos 25 años después de la mayoría de edad para víctimas de delitos sexuales sufridos en la minoridad… ¿resulta esa disposición aplicable a este caso? Nótese que, si la respuesta fuere afirmativa, en este asunto la prescripción de la acción penal habría que empezar a contarla hasta el 03 de setiembre de 2031 (fecha del cumpleaños 18 del ofendido + 25 años). Sin embargo, esta cámara estima que no lo es y, por ende, el cómputo debe seguir haciéndose con las reglas comunes en tanto que: i) cuando esa ley entró en vigencia (21 de mayo de 2019) ya el ofendido había cumplido la mayoría de edad (desde el 03 de setiembre de 2006), por lo que no estaba en el supuesto de hecho previsto por la norma que pretendía que, a las personas víctimas de delitos que, al momento de su vigencia, no hubiesen cumplido la mayoría de edad y no hubiesen denunciado no se les aplicaran las reglas prescriptivas hasta entonces vigentes; ii) no podría dársele efecto retroactivo a la ley citada en perjuicio del encartado (artículo 34 constitucional): si la ley es de 2019 y los hechos en perjuicio de [Nombre 005]. datan de 2005, es claro que hacerla aplicable implicaría darle esa condición; iii) en todas las reformas reseñadas se respetó el inicio del encabezado, que refiere “Si no ha iniciado la persecución penal ”. En sentido contrario, cuando sí ha iniciado el proceso, no rigen esas reglas, aunque la víctima aún no tenga la mayoría de edad. En este sentido puede consultarse el voto de la Sala Tercera de la Corte Suprema de Justicia número 841-2018 y del Tribunal de Apelación de Sentencia Penal del II Circuito Judicial de San José, la resolución número 2014-1961 (J. Campos, L. García y R. Chinchilla) en que se dijo: “…la reforma para que la acción penal no prescribiera, cuando se tratara de delitos sexuales en perjuicio de menores de edad que no han denunciado, sino que el plazo prescriptivo comenzara a correr hasta que hubiesen cumplido la mayoría de edad, no fue introducida sino hasta el 18 de julio de 2007 mediante ley número 8590 publicada en el periódico La Gaceta número 166 del 30 de agosto de 2007 y, al no tenerse clara la fecha de los hechos aplicaría, en ese extremo fáctico, lo más favorable al encartado (artículo 9 del Código Procesal Penal) que es estimar que sucedieron antes de agosto. Al no aplicar dicha reforma para los hechos aquí investigados, la acción penal se habría extinguido por la prescripción, eso al margen de si, aun aplicando esa normativa, la misma rija para el caso concreto, en que ya se había formulado la denuncia, que es lo que exceptúa ese numeral cuyo fin fue impedir la impunidad en aquellos asuntos en que, por la falta de apoyo de los encargados o la falta de madurez de la persona menor de edad, no se conceptualizaba que se estaba siendo víctima de un delito, lo que no sucedería tanto si se adquiere la mayoría de edad como si se ha contado con apoyo familiar o social, al punto que se ha denunciado el hecho.” También la número 675-2018 (P. Vargas, M. Porras y L. Murillo) que refirió: “La excepción prevista debe leerse en el contexto del artículo y de este se deduce que mientras no haya iniciado la persecución penal se les dispensa a víctimas menores de edad una protección especial, de manera que no es sino hasta que alcanzan la edad de dieciocho años que el cómputo del plazo de prescripción comienza, situación que no se da en los casos donde el procedimiento ha iniciado, pues aquí serán aplicables las reglas previstas en el artículo 33 del mismo cuerpo normativo.” Finalmente, en el voto número 2015-1034 (M. Gómez, R. Chinchilla y J. Campos) se indicó: “ Debe tomarse en cuenta, que la reforma para que la acción penal no prescribiera cuando se tratara de delitos sexuales en perjuicio de menores de edad que no han denunciado, sino que el plazo prescriptivo comenzara a correr hasta que hubiesen cumplido la mayoría de edad no fue introducida sino hasta el 18 de julio de 2007, mediante ley número 8590 publicada en el periódico La Gaceta número 166 del 30 de agosto de 2007. Al no poder aplicarse las disposiciones de dicha reforma retroactivamente, cuando el lapso prescriptivo ya había operado y dado que la denuncia de la agraviada, en este caso, no se presentó sino hasta el 21 de febrero del 2011 (folio 1 del expediente) es menester, advertido el vicio de notoria incidencia en el debido proceso y de conformidad con las facultades y obligaciones que los artículos 459 y 465 del Código Procesal Penal confieren a este tribunal, declarar de oficio la prescripción de la acción penal.” En el presente litigio, la denuncia de [Nombre 005]. se planteó el 28 de agosto de 2014 (ver folio 21) es decir, para 2019 en que entró a regir aquella ley No. 9685, ya estaba en trámite, de modo que dicha ley (que impide usar las reglas comunes de prescripción hasta que el ofendido tuviese 43 años de edad) no resulta aplicable y el caso debía analizarse a partir de la normativa común. En síntesis, las reformas operadas al texto original de 1998 respecto de la forma de inicio del cómputo de la prescripción no pueden invocarse en este caso por cuanto: i) la ley No. 8590 de 2007, que estableció el cómputo a partir de la mayoría de edad de la víctima, no podía aplicarse pues el ofendido [Nombre 005]. nació el 03 de setiembre de 1988 según se probó (ver hechos acreditados de la sentencia de mérito), por lo que cumplió los 18 años el 03 de setiembre de 2006. Es decir, cuando entró en vigencia ya el ofendido era mayor de edad y no podía aplicarse retroactivamente la ley citada; ii) la ley No. 9057 de 2012 incorporó previsiones para los delitos no sexuales, por lo que no es de interés; iii) la ley No. 9685 de 2019 extendió el inicio del cómputo 25 años después de la mayoría de edad de la víctima si el proceso no había iniciado, pero en este caso ya el asunto judicial había empezado con la denuncia el 28 de agosto de 2014 cuando tal ley entró en vigencia, por lo que no aplicaba; iv) la ley No. 9826 de 2020 solo aludió a nuevos temas relacionados con personas con discapacidad cognitiva, no atinentes a este supuesto. Por ende, el asunto debe tratarse con las normas originales sobre la forma de cómputo de la prescripción de la acción penal de 1996-1998 (pena máxima del delito si no hay actos interruptores o suspensivos y la mitad de ese monto si los hubiera). Ahora bien, al inicio de este apartado (A.1) se indicó que, partiendo del primer párrafo (tipo simple aplicado por el a quo), el monto de prisión en ocho años era el máximo posible y generaba el tope del plazo de prescripción, el cual, reducido a la mitad por el inicio del proceso y la existencia de actos interruptores haría cuatro años. Los hechos se dieron en 2005 (sin determinar fecha exacta, por lo que, por el principio in dubio pro reo debe partirse de inicio de año) por lo que los ocho años (es decir, el plazo completo de prescripción de la acción penal, aún no reducido a la mitad por no haberse generado un acto interruptor y sin suspenderse su cómputo porque las leyes referentes a ese tema no son aplicables según se dijo) se habrían cumplido a inicios de 2012. Inclusive, si se tuviera en cuenta la ley No. 8590 de 2007 —que estableció el cómputo de la prescripción de la acción penal a partir de la mayoría de edad de la víctima, lo cual se produjo el 03 de setiembre de 2006— los ocho años se habrían cumplido el 03 de setiembre de 2014. El encartado fue indagado por estos hechos el 25 de noviembre de 2014 (ver folio 56). Este era el acto interruptor que, además, reducía el plazo prescriptivo a la mitad. Pero, cuando se produjo, ya había corrido, completo, el plazo total de extinción de la acción penal. Es cierto que, a partir de ese momento, no corrieron los cuatro años (plazo reducido a la mitad) entre los diversos actos con efectos en el tema, pues las convocatorias a audiencia preliminar se hicieron (entre otras) en estas fechas: la primera el 14 de julio de 2015 (folio 216) y otras el 02 de mayo de 2016 (folio 291), el 23 de mayo de 2016 (folio 315) y el 26 de junio de 2016 (folio 332). El primer señalamiento a debate se hizo el 06 de setiembre de 2017 (folio 390), la primera sentencia se dictó el 07 de junio de 2019 (folios 389-555), la sentencia de apelación anulando la anterior es de fecha 28 de octubre de 2019 (folio 616) y la convocatoria para el reenvío data del 21 de enero de 2020 (folio 628). Aunque las anteriores no son las únicas audiencias o señalamientos y hay otros que tienen efecto interruptor, son los más relevantes y permiten ver que no transcurrieron los cuatro años entre un acto y otro. Empero, sí corrieron completos los ocho años desde la fecha del hecho hasta ese primer acto interruptor de la indagatoria y ello es suficiente para determinar que estos hechos, en perjuicio de [Nombre 005]. se juzgaron estando prescritos y lo que correspondía era haberlo determinado así. Por ello, debe revocarse la sentencia condenatoria impuesta al encartado por dos hechos en perjuicio de [Nombre 005]. y, en su lugar, disponerse la absolutoria por extinción de la acción penal por prescripción, eliminando la sanción de seis años de prisión (tres por cada delito en perjuicio de este afectado) al monto total de la condena y sin que esto afecte la determinación de la responsabilidad civil. Sin perjuicio de lo que se indicará sobre lo civil en otro considerando (VII), la extinción de la acción penal no afecta la extinción de la acción civil pues, por un lado, hay discusión sobre la normativa aplicable en materia de plazos y causales y, por otro (y sobre todo), a diferencia de la extinción de la acción penal, la de lo civil no es declarable de oficio. En este asunto, no ha sido interpuesta excepción alguna expresa en tal sentido. Por ello, lo decidido en materia penal en esta sede no afecta el pronunciamiento de lo civil, el cual se analizará luego a partir de otras bases conceptuales (ver apartado VII.A). (A.2) Hechos en perjuicio de [Nombre 003].: Estos sucesos se ubican en 2013 y la víctima era adulto para entonces. A esa fecha el delito de abuso sexual contra persona mayor de edad estipulaba:

«Abusos sexuales contra las personas mayores de edad Artículo 162.- Si los abusos descritos en el artículo anterior se cometen contra una persona mayor de edad, la pena será de dos a cuatro años de prisión.

La pena será de tres a seis años de prisión cuando:

El autor se aproveche de la vulnerabilidad de la persona ofendida, o esta se encuentre incapacitada para resistir o se utilice violencia corporal o intimidación.

El autor sea ascendiente, descendiente, hermana o hermano de la víctima.

El autor sea tío, tía, sobrina, sobrino, prima o primo de la víctima.

El autor sea madrastra, padrastro, hermanastra o hermanastro de la víctima.

El autor sea el tutor o el encargado de la educación, guarda o custodia de la víctima.

El autor realice la conducta contra alguno de los parientes de su cónyuge o conviviente, indicados en los incisos 3) y 4) anteriores.

El autor se prevalezca de su relación de confianza con la víctima o su familia, medie o no relación de parentesco.» (Se suplen los destacados).

Si se parte del segundo párrafo (tipo agravado acusado, aunque no contemplado en la sentencia y sin perjuicio de que, de estimarse otra cosa en el reenvío ordenado, se hagan los ajustes respectivos a estos cálculos) el monto de seis años máximo de prisión generaba el tope del plazo de prescripción (artículo 31 inciso 1 del Código Penal) que, reducido a la mitad por el inicio del proceso y la existencia de actos interruptores, haría tres años. Como los hechos suceden cuando el perjudicado es adulto, por las razones ya referidas en el apartado inmediato anterior no aplican las reglas de no cómputo hasta que tenga la mayoría de edad. Entonces, contados desde el 2013, los seis años para generar un acto interruptor, vencerían el 2019. En este asunto la denuncia de [Nombre 003]. se planteó el 08 de agosto de 2014 (ver folio 1); el encartado fue indagado el 25 de noviembre de 2014 (folio 56); las convocatorias a audiencia preliminar se hicieron (entre otras) en estas fechas: la primera el 14 de julio de 2015 (folio 216) y otras el 02 de mayo de 2016 (folio 291), el 23 de mayo de 2016 (folio 315) y el 26 de junio de 2016 (folio 332); el primer señalamiento a debate se hizo el 06 de setiembre de 2017 (folio 390), la primera sentencia se dictó el 07 de junio de 2019 (folios 389-555), la sentencia de apelación anulando la anterior es de fecha 28 de octubre de 2019 (folio 616) y la convocatoria para el reenvío data del 21 de enero de 2020 (folio 628). Aunque las anteriores no son las únicas audiencias o señalamientos y hay otros que tienen efecto interruptor, son los más relevantes y los omitidos no alteran la decisión en tanto son actos adicionales de interrupción o, dicho en otras palabras, si con estos no está prescrita la acción menos lo estará considerando otros que aumentan el conteo. Así las cosas, se concluye que en este caso no ha operado la prescripción de la acción penal y, por eso y sin perjuicio de lo ya indicado sobre las eventuales despenalizaciones (que han de discutirse, si se tiene a bien, en sede constitucional), la decisión no queda afectada por el tema prescriptivo. Eso significa que el reenvío ordenado para determinar la correcta calificación legal y la pena ha de mantenerse.

VII.- [Nombre 012] , apoderado generalísimo sin límite de suma de Temporalidades de la Arquidiócesis de San José, mediante escrito autenticado por la licenciada Vanessa Zúñiga Mora cuestiona, en el primer motivo de su recurso, la fundamentación de la sentencia que tuvo a su representada como responsable civilmente solidaria. Dice que este tipo de responsabilidad nace del descuido en el deber de escoger y vigilar a quien encargamos uno o muchos actos. Sin embargo, la parte actora civil no demostró que exista vínculo jurídico entre el imputado en la presente causa y Temporalidades de la Arquidiócesis de San José por lo que no se cumple con el criterio de imputación requerido por la normativa costarricense. Señala que la naturaleza jurídica de Temporalidades de la Arquidiócesis de San José no es la de una sociedad anónima concebida según las normas de la ley mercantil ni la surgida de un pacto o estatuto constitutivo; sino que su creación deriva de la ley número 6062 de 1977 que le otorgó personería jurídica a la Conferencia Episcopal de Costa Rica, así como a cada una de las diócesis o jurisdicciones eclesiásticas en que está divido el territorio nacional para que las primeras pudieran actuar dentro del ordenamiento jurídico. Sostiene que su representada actúa en nombre de la Iglesia Católica únicamente para celebrar actos, contratos, contraer obligaciones y de manera especial adquirir bienes los cuales responderán únicamente por los daños y perjuicios ocasionados en virtud de los actos y contratos celebrados por ella, es decir responderá eventualmente por los daños y perjuicios que produzcan sus representantes legales, personeros o trabajadores en el ejercicio de sus funciones. Sostiene que los sacerdotes no representan ni actúan en nombre o por cuenta de Temporalidades de la Arquidiócesis de San José por lo que actos personales o eclesiales de ellos no comprometen el patrimonio de su representada que, de ninguna manera, debe responder por los daños o perjuicios que produzca el actuar de aquellos y así se desprende del dicho de los sacerdotes [Nombre 078] y [Nombre 079] en debate, toda vez que los sacerdotes no representan, ni actúan en su nombre, aunque sí existen algunos que ostentan la representación judicial y extrajudicial de la figura jurídica, en cuyo caso sus acciones sí podrían comprometer su patrimonio, pero este no es el caso del encartado. Estima que el tribunal no sustenta adecuadamente por qué su representada debió vigilar al Padre [Nombre 001], si es claro que no existe vínculo alguno con él y su ministerio sacerdotal ni tenía por qué vigilar sus actuaciones. En el segundo motivo del recurso del tercero civilmente demandado se alega la inadecuada valoración de la prueba pues considera que la circunstancia acreditada por el tribunal —de que el aquí imputado recibía un salario por parte de Temporalidades de la Arquidiócesis de San José— es completamente errónea. Sostiene que la prueba aportada por la actora civil —consistente en el estudio de cuotas emitido por la Caja Costarricense del Seguro Social (CCSS) a nombre de [Nombre 001]— debió interpretarse y valorarse en conjunto con otras pruebas, como el criterio legal emitido por la Dirección de Asuntos Jurídicos del Ministerio de Trabajo, Departamento de Asesoría Externa número DAJ-AE-108-09 de fecha 8 de mayo de 2009, visible a folio 45 al 48 del legajo de acción civil resarcitoria en donde se menciona el convenio que existe entre la CCSS y la Conferencia Episcopal de Costa Rica. Narra que tal convenio se firmó, inicialmente, en 1994 para dar cumplimiento a lo que establece el Código de Derecho Canónico, es decir, que era obligación de la Conferencia garantizar la asistencia social de los sacerdotes en los casos de enfermedad, invalidez y vejez y que en el año 2001 se varió el régimen de cotización con el fin de que no fueran catalogados como trabajadores independientes sino estuvieran amparados en el Reglamento para la Afiliación de Asegurados Voluntarios en su artículo 2 (que copia) en el tanto no recibieran los sacerdotes un ingreso proveniente de una relación laboral. Sostiene que aquel estudio de cuotas no puede interpretarse y dársele valor dejando de lado la realidad que existe pues, para la misma CCSS los sacerdotes son considerados asegurados voluntarios, no generan ingresos mediante una actividad económica, no han sido asegurados directos y no tienen ingresos propios. Considera que, si no son personas asalariadas por parte de su representada, no existe relación laboral que genere un vínculo jurídico entre ambos ni que sustente una responsabilidad subjetiva indirecta. Recuerda que, en el debate, quedó probado que quien nombra a los sacerdotes en las parroquias y les asigna labores es el obispo diocesano, no Temporalidades de la Arquidiócesis de San José. Además, los sacerdotes no reciben un salario, sino que lo que perciben un subsidio o suma que les permite cubrir sus necesidades básicas la cual proviene de las donaciones u ofrendas que los fieles aportan en las diferentes comunidades. Así las cosas, aunque un documento diga que su representada es el patrono de los sacerdotes, no es así, pues ella no tiene la obligación de cubrir las cuotas correspondientes al Fondo de Capitalización Laboral y al Régimen de Pensiones Obligatorias, la cual se encuentra dispuesta por ley para aquellas personas, físicas o jurídicas, que mantengan una relación laboral con sus trabajadores. Por ello, el documento debió valorarse en consonancia con el resto de las probanzas. Como tercer alegato del recurso del tercero civilmente demandado se aduce la falta de fundamentación en tanto la parte actora civil —a pesar de que pretendió sustentar la responsabilidad solidaria de su poderdante aludiendo a que los hechos denunciados ocurrieron en inmuebles propiedad de Temporalidades de la Arquidiócesis de San José— no acreditó el cumplimiento de los presupuestos que tanto la legislación como la doctrina exigen para la responsabilidad objetiva ya que su representada no facilitó un lugar o inmueble para que se ejecutaran hechos delictivos con toda comodidad e impunidad ni se demostró la existencia de norma jurídica alguna que expresamente establezca este tipo de responsabilidad para la actividad espiritual que realiza la iglesia. El criterio legal DAJ-AE-108-09 de fecha 8 de mayo de 2009 del Ministerio de Trabajo concluye acerca de la inexistencia de relación laboral por el no cumplimiento de los elementos esenciales para que la misma y el derecho canónico es fuente de derecho en este país, por lo que lo dispuesto en él debe ser de acatamiento inmediato. De allí y de un convenio celebrado a la luz de tal fuente para dar seguridad social a los sacerdotes, no puede derivarse la existencia de una relación laboral. Agrega que existen dos procesos judiciales pendientes de resolución judicial que van a determinar si existe o no relación laboral y, por lo tanto, la obligación de cotizar a la CCSS bajo otra categoría y no la que hasta hoy opera. Dichos procesos son 12-004436-1027-CA y 15-001341-1178-LA pero, en la actualidad, no se ha determinado la existencia de una relación laboral ni existe vínculo alguno entre su representada y el imputado. Considera que los argumentos para una condena civil solidaria de Temporalidades, por el daño moral sufrido por el ofendido, [Nombre 005]. no son válidos y que la actividad de la iglesia no es riesgosa, no está tipificada de esa manera y per se no provoca riesgos. Alude a la sentencia número 48-2008 de la Sala Primera de la Corte Suprema de Justicia en donde se indica que la responsabilidad ajena a la culpa no puede derivarse de interpretaciones y refiere que la teoría del riesgo creado encuentra su sustento en los párrafos cuarto y quinto del artículo 1048 del Código Civil. Sin embargo, esta norma adjudica responsabilidad objetiva a los empresarios de establecimientos peligrosos y a los que se dedican a la explotación de los medios de transporte, pues ambas actividades suponen provecho económico, lo que tampoco fue acreditado por la parte actora civil, ya que su representada es una entidad sin fines lucrativos. Pide que se revoque lo resuelto. Los argumentos se reiteraron, resumidos, en la audiencia oral. Al contestar estos alegatos, la Oficina de Defensa Civil de la Víctima consideró que no son de recibo los argumentos pues la sentencia está debidamente fundamentada ya que se tuvo por probado que, para el momento de los hechos, el demandado civil [Nombre 001] formaba parte del clero, desempeñándose como sacerdote párroco en el espacio temporal que circunscribe los hechos. Dice que tampoco hay duda del nexo causal existente entre el accionar doloso del demandado civil y el resultado pernicioso en la integridad sexual del actor civil [Nombre 005]. Además, la Iglesia Católica tiene un estatus particular en el Estado Costarricense y quien la representa es Temporalidades de la Arquidiócesis de San José como persona jurídica. Indica que su responsabilidad deriva de la ausencia de una vigilancia debida del encartado que fungía en un papel eclesiástico, lo cual era deber de su jerarca. Refiere que el tribunal se basó en los artículos 1045 y 1048 párrafo tercero (que copia) del Código Civil, es decir, aludió a una responsabilidad subjetiva indirecta o in vigilando que corresponde a la responsabilidad por hechos ajenos. Sobre la responsabilidad contra Temporalidades de la Arquidiócesis de San José, cita y transcribe parcialmente el voto número 2012-2411 del Tribunal de Apelación de Sentencia de San José que la acoge. Indica que se demostró que no se ejerció la vigilancia debida sobre las acciones cometidas por el Padre [Nombre 001], ya que [Nombre 079], quien era el Vicario General, y [Nombre 078], Vicario Episcopal, tenían conocimiento de dichas acciones y trataron de enmendar lo sucedido, sin que se tomaran acciones concretas, todo lo cual implica una falta de vigilancia que le acarrea responsabilidad civil solidaria a la Iglesia. Dice que no es cierto que se tuviera por acreditado que el imputado recibía un salario por parte de Temporalidades de la Arquidiócesis de San José, sino que lo que se menciona es que el demandado civil [Nombre 001] se declaraba parte de la planilla con un salario ligado a Temporalidades de la Arquidiócesis de San José, por lo que se aportó prueba documental que consistió en un reporte de salarios acumulados y un reporte de estudio de cuotas de la CCSS, mediante la cual se ligó a Temporalidades de la Arquidiócesis de San José como patrono del imputado. Esta prueba no era para determinar si había convenio con la CCSS del pago del seguro, como lo hace ver la tercera civil, sino para demostrar el lazo entre [Nombre 001] y Temporalidades de la Arquidiócesis de San José y aunar más prueba de responsabilidad de la Iglesia, ya que [Nombre 001] declaró que los sacerdotes no actuaban por nombre o cuenta de Temporalidades de la Arquidiócesis, cuando, en su planilla de la CCSS, quien figura como su patrono es Temporalidades de la Arquidiócesis de San José. Indica que la Iglesia, como institución y autoridad religiosa, presta un servicio ante la comunidad de los feligreses, escoge a un sacerdote el cual lleva estudios de varios años, acepta su ordenación y luego se da el nombramiento. [Nombre 079] estableció que los sacerdotes deben dar informes pastorales y a ellos les da seguimiento el Vicario Pastoral, todo lo cual evidenciaría la relación existente y los deberes de escogencia y vigilancia que fundan la responsabilidad solidaria. Concluye que, en el debate, hubo prueba de que el encartado era sacerdote párroco en el lugar en que sucedieron los hechos y fue durante ese tiempo que estos se dieron. Alude al daño moral y su apoyo jurídico (artículos 59 y 1045 del Código Civil y 125 del Código Penal) y cómo, en este asunto, se demostró y pide el rechazo de las quejas. Las otras partes no se refirieron sobre el particular. Los alegatos, por cuestionar desde diferentes ópticas el tema de la condena solidaria, son conexos y se conocerán en forma conjunta, debiéndose rechazar. (A) Sobre las reglas de prescripción penales y civiles. En el apartado VI.A.1 se enunció por qué, en criterio de esta cámara, la acción penal está para uno de los ofendidos está prescrita. Sin embargo, tal decisión no incide en lo civil. Primero porque ha existido una profusa discusión jurídica sobre la normativa aplicable en materia de plazos y causales de extinción de la acción civil cuando se ha producido, como en este caso, la extinción de la acción penal a que aquel cobro iba ligado. Por otro lado, porque, a diferencia de la extinción de la acción penal que puede declararse de oficio (artículo 42 inciso c) y párrafo final del Código Procesal Penal), la de lo civil no es declarable de oficio (artículo 2.4 del Código Procesal Civil) y, en este asunto, no ha sido interpuesta excepción alguna expresa en tal sentido, lo cual se ampliará oportunamente (ver acápite VII.A). En lo referente a la discusión normativa respecto de la legislación aplicable y los plazos a usar para el tema civil cuando ha mediado extinción de la acción penal por prescripción, téngase en cuenta que el artículo 868 del Código Civil estipula: “Todo derecho y su correspondiente acción se prescriben en diez años. Esta regla admite las excepciones que prescriben los artículos siguientes y las demás expresamente establecidas por la ley, cuando determinados casos exigen para la prescripción más o menos tiempo”. Las excepciones de los artículos siguientes son las que señalan los numerales 869, 870 y 871 del Código Civil que establecen, respectivamente, una prescripción de tres y un año y, en el último numeral, se refiere: “Las acciones civiles procedentes de delito o cuasidelito se prescriben junto con el delito o cuasidelto de que proceden”. Este artículo, en principio, era el aplicable para efectos de la prescripción de la acción de resarcimiento derivada de delito, y no el 868 de la prescripción decenal. Ello en aplicación del aforismo latino según el cual la ley especial prevalece sobre la general (leges generales non debent etendi at leges, quae habent suam particularem provisionem: las leyes generales no deben extenderse a los casos que tienen sus especiales disposiciones). Entonces, durante mucho tiempo se consideró que la prescripción de la acción penal y la de resarcimiento de allí derivadas iban juntas [véase al respecto: Abdelnour Granados, Rosa María (1984). La Responsabilidad Civil Derivada del Hecho Punible. Editorial Juricentro, San José, págs. 167-168]. Esa fue la posición de la Sala Tercera, por ejemplo, en el voto número 565- F de las 16:15 horas del 12 de diciembre de 1994. Sin embargo, para otro sector, el numeral 871 del Código Civil quedó derogado implícitamente por el numeral 96 párrafo segundo del Código Penal, el cual establece: “ La extinción de la acción penal y de la pena no producirá efectos con respecto a la obligación de reparar el daño causado, ni impedirá el decomiso de los instrumentos del delito”, (cfr. Zúñiga Morales, Ulises. Código Penal anotado. Investigaciones Jurídicas. p. 60). Por ello, la Sala Tercera en el voto número 297 A- de las 14:55 horas del 9 de julio de 1993 efectuó una consulta de constitucionalidad sobre el tema y la Sala Constitucional, al resolverla, dispuso:

“…en el caso del delito existe un interés eminentemente público, en el otro (caso de lesión meramente civil) el interés es básicamente privado. De allí que si, aun mediando ese interés público en tratándose de un delito, la acción penal prescribe, de conformidad con lo dispuesto en el artículo 82 del Código Penal, lo lógico, al contrario de lo expresado en la consulta, es que prescriba junto con aquélla la civil, puesto que esta es, en relación con la primera, meramente secundaria, y por ello, sería un contrasentido si por el hecho principal, que es el delito, ya no se pueda perseguir a un sujeto, cuando ese interés es meramente privado en tanto en otro es público. De modo que, si de conformidad con el propio ordenamiento penal, determinados delitos prescriben en un lapso menor a los diez años, mal haría el legislador si otorgara una mayor tutela jurídica al interés puramente privado del damnificado por el delito que al interés público principal y ampliara el plazo de prescripción de la acción civil, por ejemplo, a diez años, de manera que aun cuando no procediera penalmente la imposición de ninguna sanción el ofendido pudiera cobrar lo daños y perjuicios derivados de una acción delictiva.” (Sala Constitucional. Voto número 5029-93 de las 14:36 horas del 13 de octubre de 1993). Ante ello, la Sala Tercera siguió aplicando la prevalencia del numeral 871 del Código Civil durante mucho tiempo: ver, por ejemplo, los votos número 85-99 de las 9:40 horas del 21 de enero de 1999 y 891-99 de las 9:15 horas del 19 de julio de 1999. Sin embargo, se volvió a retomar el tema en los siguientes términos: “La Sala Constitucional de la Corte Suprema de Justicia dispuso que al prescribir la acción penal lo propio ocurriría con la demanda civil, lo que contraría el articulo 96 párrafo segundo del Código Penal. Afirmamos lo anterior porque la prescripción es una causa de extinción de la acción penal. Además, el Código Penal es una ley especial y posterior al Código Civil, con lo cual queda claro cuál era la legislación aplicable al caso. El problema no es si el artículo 871 es constitucional o no. Lo importante es que hay una norma posterior y especial que la dejó sin efecto. Entendemos entonces que la prescripción de la acción penal, causa de extinción de la acción penal, no produce efectos sobre la obligación de indemnizar”. [SANABRIA ROJAS, Rafael (2000): La Prescripción de la acción penal en la nueva legislación procesal costarricense. Editorial Jurídica Continental. San José, pág. 100). Tesis que finalmente ha prevalecido casi pacíficamente en la jurisprudencia de las últimas décadas, con algunas excepciones que son relevantes, como el criterio disidente en el voto número 2021-193 del Tribunal de Apelación de Sentencia Penal de Cartago que refiere: «II. Voto salvado del juez Fernández Mora:

En este asunto, debo dejar plasmado mi disenso con la mayoría al ordenar un juicio de reenvío para determinar la responsabilidad civil, pese a haberse determinado la prescripción de la acción penal, de algunas de las delincuencias, pues desde mi perspectiva, la acción civil también prescribió conjuntamente con la penal, tal como lo dispone la legislación vigente. El artículo 871 del Código Civil, señala que: "Las acciones civiles procedentes de delito o cuasidelito se prescriben junto con el delito o cuasidelito de que proceden". En otras palabras, al haber prescrito el delito que se juzgó mucho antes de que se acusaran los hechos, por decisión expresa del legislador también prescribió el derecho a reclamar indemnización civil por parte del ofendido, por lo que no es posible interpretar que en este caso la prescripción de la acción civil corriera de forma independiente a la acción penal. Cabe indicar que conozco la posición asumida por la Sala de Casación Penal a partir del voto N° 20020861 de las 10:00 horas del 20/08/2002, en donde se sostiene, entre otras conclusiones, que el artículo 871 del Código Civil fue derogado tácitamente por el artículo 96 del Código Penal y que el término (sic) para que prescriba la acción civil es de diez años. Sin embargo, de conformidad con el principio constitucional de independencia judicial que me cobija en mi función jurisdiccional, discrepo de los razonamientos que la honorable Sala de Casación ha brindado, puesto que no es cierto que pueda hablarse de una derogatoria tácita del artículo 871 del Código Civil, según se indicará más adelante. Tampoco resulta acertado establecer que en todos los casos, el cómputo de la prescripción civil es decenal, cuando expresamente existe una norma que dispone lo contrario, al señalar el artículo 868 del Código Civil: "Todo derecho y su correspondiente acción se prescriben por diez años. Esta regla admite las excepciones que prescriben los artículos siguientes y las demás establecidas expresamente por la ley, cuando determinados casos exigen para la prescripción más o menos tiempo". (…) debe señalarse que el artículo 109 del Código Penal, hace referencia a que: "Las obligaciones correspondientes a la reparación civil se extinguen por los medios y en la forma determinada en el Código Civil...", lo que implicaría para la Sala, que el legislador con un criterio de corte clásico, hizo una remisión para que lo referente a la extinción de las obligaciones civiles se determine con un criterio de corte positivista como el que se expresa en el artículo 871 del Código Civil. Las argumentaciones de la Sala de Casación para afirmar que el artículo 96 del Código Penal derogó tácitamente al artículo 871 del Código Civil soslaya circunstancias cuya consideración resulta imprescindible a la luz de las reglas para la aplicación de la derogatoria tácita de una norma, como lo es el criterio de lex posterior. En ese sentido, Josep Aguiló señala que: "No toda incoherencia normativa da lugar a una derogatoria por incompatibilidad. Sólo hay derogación cuando la ordenación de las normas conflictivas se realiza aplicando el criterio de lex posterior. De la aplicación de los criterios de lex specialis y de lex superior no se sigue derogación alguna" (Aguiló, Josep. La derogación en pocas palabras. Anuario de Filosofía del Derecho XI, 1994, pág. 412). Desde la anterior perspectiva, no podría interpretarse que el artículo 871 del Código Civil se encuentre derogado tácitamente porque en 1970 se promulgó el Código Penal, que contenía el referido artículo 96, porque mediante una ley posterior el legislador decidió restituir los efectos del artículo 871 del Código Civil. Esta disposición legal posterior no es otra que la Ley N°4981 del 8 de noviembre de 1971, en donde se restablece la vigencia del Título IV, Libro I del Código Penal de 1941, que en su artículo 138 dispone: "Las obligaciones concernientes a la reparación civil, tratadas en este capítulo, se extinguen por los medios y en la forma que determina el Código Civil, para las obligaciones civiles", lo que necesariamente hace referencia a la forma de extinción de la acción civil (prescripción) procedente de delito que estipula el artículo 871 del Código Civil. (…) aun en el supuesto de que fuese cierta la interpretación de la Sala de Casación, respecto de que existió una derogación tácita por incompatibilidad de normas del artículo 871 del Código Civil, al promulgarse el artículo 96 del Código Penal, dicha norma no habría perdido vigencia alguna, sino que fue incompatible únicamente por un espacio de poco más de un año (del 4 de mayo de 1970 al l8 de noviembre de 1971), ya que, de forma posterior, el mismo legislador decidió restituir en todos sus efectos mediante un nuevo acto de promulgación legislativa. (…) En otras palabras, al tratarse el artículo 871 del Código Civil de una norma vigente, eficaz y que tampoco tiene roces de constitucionalidad, debe ser aplicada por el juzgador de forma efectiva. Para este juzgador, resulta claro que existe una excepción al principio general de la prescripción decenal para accionar un reclamo en la vía civil. Es precisamente la ley la que establece que, en el caso de la responsabilidad derivada de un delito, la acción civil debe prescribir junto con la acción penal (…) Según mi opinión, es posible concluir que, lejos de ser cierta la brillante exposición teórica que realiza la Sala de Casación, el legislador ni siquiera se ha percatado de que promulgó una regulación híbrida y hasta incoherente en cuanto al tema de la responsabilidad civil derivada del delito y es por eso que, al mismo tiempo, le da un tratamiento propio de un sistema clásico como del sistema positivista. Se trata de una normativa que deja vigentes reglas sobre la extinción de la acción civil que la supeditan a la extinción de la acción penal, que debe ser aplicada por tratarse de normativa posterior que, más bien, deroga tácitamente lo dispuesto por el párrafo segundo del artículo 96 del Código Penal. En virtud de lo anterior, al haberse determinado en la presente sentencia que la acción penal se encuentra prescrita, de conformidad con lo dispuesto por el artículo 871 del Código Civil, corresponde declarar prescrita la acción civil para reclamar el daño derivado del delito investigado y absolver al justiciable de responsabilidad pecuniaria.» (Se suplen las negrillas). Al margen de la posición que se adopte al respecto, es lo cierto que lo civil se rige por el principio dispositivo y como ninguna de las partes alegó la prescripción de la acción civil, aquella declaratoria no afecta (por ese motivo, sin perjuicio de otros, que se analizarán oportunamente) la indemnización civil. Así se ha referido en otras ocasiones: «Respecto de la pretensión civil el fallo se mantiene, por no haber sido opuesta la excepción de prescripción en este aspecto, por lo que se considera renunciada, de conformidad con el artículo 851 del Código Civil, que indica:

“La renuncia de la prescripción puede ser tácita, y resulta de no oponer la excepción antes de la sentencia firme…”. La prescripción no es declarable de oficio, por lo que, al no haber sido alegada, la sentencia en el aspecto civil debe mantenerse» (Antiguo Tribunal de Casación Penal de San José, voto número 492-F-8 de las 10:20 horas del 13 de julio de 1998; se suplen los destacados). (B) Sobre la necesidad de emitir pronunciamiento civil pese a la extinción de la acción penal: Adicionalmente hay que indicar que el dictado de aquella decisión no implica que deba dejarse sin efecto lo resuelto en tópicos civiles y, mucho menos, que las partes deban concurrir a otra vía en resguardo de sus derechos. Esta cámara no desconoce lo referido por la Sala Tercera en el voto número 2021-347 en donde, aplicando el numeral 40 del Código Procesal Penal (principio de accesoriedad de lo civil) considera que, dictada antes de juicio un sobreseimiento por prescripción, no cabe pronunciarse sobre lo civil, sino que debe enviarse a la vía respectiva. Sin embargo, no la aplica por dos razones: i) en este asunto, no se dictó un sobreseimiento por prescripción antes del debate, sino luego de este, en fase de apelación de sentencia, lo que implica que deba continuarse con la decisión de lo civil pues no cabe de oficio; ii) se estima incompleto el antecedente ya que si bien, desde el punto de vista meramente legal es adecuado, la decisión cambia cuando se incorporan principios de superior rango, constitucional y convencional (tutela judicial efectiva, acceso a la justicia) garantizados a las víctimas por instrumentos internacionales y por el numeral 41 de la Carta Magna, los cuales no fueron visibilizados por dicho tribunal. Es decir, no aplicó la jerarquía normativa que hace ceder valor a leyes respecto a normas y principios constitucionales y convencionales. Dijo, resumidamente, dicha Sala en ese precedente: «III. Se varía el criterio anteriormente sostenido por esta Sala y se unifica la jurisprudencia (…) El tema sobre el que se reclama la diversa aplicación del derecho consiste en la posibilidad que tiene el tribunal de juicio de efectuar el debate por los extremos civiles, cuando de previo se ha dictado el sobreseimiento definitivo por extinción de la acción penal. Lo primero que se debe señalar es que esta Sala verifica que en efecto las dos resoluciones aludidas resuelven de manera diversa el tema, pese a presentarse un supuesto fáctico similar, cual fue el dictado de un sobreseimiento definitivo por prescripción de la acción penal, de previo a que se desarrollara el contradictorio. (…) Mediante pronunciamiento N°. 2010-0105, de las 11:00 horas, del 17 de febrero de 2010, se estableció que: “[…] la decisión respecto de la acción penal no implicaba a esta altura del proceso , que los juzgadores pudieran desentenderse del mismo y darlo por concluido, pues aún pendía en esa sede de juicio, la discusión de la acción civil resarcitoria, legítimamente ejercida(…)” (Suscrita por magistrados suplentes Rafael Segura, Jaime Robleto, Sandra Zúñiga, con voto salvado de los magistrados suplentes Rosibel López y Jorge Desanti). No obstante, de una mejor ponderación del tema, la integración actual de esta Sala estima que lo pertinente es variar el criterio que se había venido sosteniendo, con base en las consideraciones que de seguido se exponen. El proceso penal se encuentra diseñado para que el juzgador imparta justicia cuando se encuentre ante la existencia de hechos ilícitos, que hagan necesaria la imposición de una pena o medida de seguridad. Sin embargo, por disposición legal , en algunos casos, de forma conjunta, le corresponderá también pronunciarse sobre las pretensiones civiles que hagan valer los sujetos legitimados. Al respecto, el ordinal 37 del Código Procesal Penal, señala: “La acción civil para restituir el objeto materia del hecho punible, así como la reparación de los daños y perjuicios causados, podrá ser ejercida por el damnificado, sus herederos, sus legatarios, la sucesión o por el beneficiario en el caso de pretensiones personales, contra los autores del hecho punible y partícipes en él y, en su caso, contra el civilmente responsable.” Aunque la acción civil pueda ser ejercida dentro del proceso penal, no es autónoma, sino que se encuentra subordinada al ejercicio de la acción penal, es decir, ostenta un carácter accesorio, tal y como se establece en el numeral 40 del código de rito:

“En el procedimiento penal, la acción civil resarcitoria sólo podrá ser ejercida mientras esté pendiente la persecución penal. Sobreseído provisionalmente el imputado o suspendido el procedimiento, conforme a las previsiones de la ley, el ejercicio de la acción civil se suspenderá hasta que la persecución penal continúe y quedará a salvo el derecho de interponer la demanda ante los tribunales competentes. La sentencia absolutoria no impedirá al tribunal pronunciarse sobre la acción civil resarcitoria válidamente ejercida, cuando proceda.” Es importante señalar que el ejercicio de la acción civil dentro del proceso penal es facultativo de la parte interesada, quien bien podría hacer valer sus derechos en la vía ordinaria civil, así lo dispone el artículo 41 ibidem: “La acción civil podrá ejercerse en el proceso penal, conforme a las reglas establecidas por este Código o intentarse ante los tribunales civiles; pero no se podrá tramitar simultáneamente en ambas jurisdicciones.” Esta precisión resulta de particular importancia, por cuanto, al elegirse su ejercicio en la vía penal, la parte acepta la regulación existente en dicho proceso, así como sus consecuencias. Y es que, partiendo de la accesoriedad anteriormente aludida, se debe entender que existe una relación de dependencia de la acción civil respecto de la penal, de manera que, si esta última no se promueve o bien, ejercida existe un impedimento para que continúe, tampoco podrá continuarse con la primera, es decir, la acción civil solo puede ser impulsada cuando la penal se encuentre en curso. Ahora bien, partiendo de que la prescripción de los extremos penales y los civiles se encuentran sujetos a plazos de prescripción diversos, bien podría suceder que, ocurra el fenecimiento de los primeros, quedando subsistente los segundos. De interés para el caso se debe indicar que, si dicha situación sucede durante el curso de un proceso penal, en el que se ha ejercido de manera conjunta la acción civil, encontrándose la causa bajo conocimiento del tribunal de juicio, pero sin haberse efectuado el debate, este perderá la competencia para pronunciarse de forma exclusiva sobre los extremos civiles. Lo anterior debido a que dentro de los diferentes criterios de fijación de la competencia se encuentra la materia, según la cual los ámbitos civil y penal son diferenciables por su naturaleza e independientes en su regulación. Así el artículo 165 de la Ley Orgánica del Poder Judicial dispone que: “Todo juez tiene limitada su competencia al territorio y a la clase de asuntos que le estén señalados para ejercerla”. De la relación de los ordinales 96 y 96 bis, ibidem, se desprende, en lo que interesa, que los tribunales de juicio tienen competencia para conocer de la fase de juicio para el juzgamiento de delitos. Adquiere la competencia para pronunciarse sobre los extremos civiles únicamente en razón del ejercicio conjunto de las acciones. Ninguna norma del ordenamiento jurídico lo faculta para conocer de manera exclusiva sobre la acción civil, por lo que no podría arrogarse prerrogativas que la ley no le otorga, ya que esto sería violatorio del principio de legalidad, según el cual los funcionarios públicos únicamente pueden llevar a cabo aquellas acciones que la ley les faculta (Ver artículo 11 de la Constitución Política y 11 de la Ley General de la Administración Pública). En este sentido no debe llamar a confusión lo dispuesto en el artículo 359 del Código Procesal Penal, que se refiere a aquellos casos en que se haya ordenado la cesura del debate o un reenvío únicamente para el conocimiento de la pena o consecuencias civiles. En estos casos, la relación de dependencia entre los extremos civiles respecto de los penales se mantiene, debido a que la cesura implica que primero se efectúa un juicio sobre la responsabilidad penal, luego otro sobre la pena y consecuencias civiles, pero todo dentro de un mismo proceso; mientras que cuando se ordena el reenvío únicamente por los extremos civiles, se tiene como antecedente una sentencia que resolvió sobre los aspectos de índole penal. Continuando con el análisis, véase que el ordinal 340 del Código Procesal Penal dispone que: “Si se produce una causa extintiva de la acción penal y para comprobarla no es necesaria la celebración del debate, el tribunal podrá dictar el sobreseimiento definitivo. El Ministerio Público, la víctima, el querellante y el actor civil podrán interponer recurso de apelación de la sentencia contra lo resuelto.” Es decir, las facultades del actor civil se limitan a impugnar lo resuelto, no así a continuar con el ejercicio exclusivo de la acción civil. Al respecto, Sala en el voto 2003-00034, de las 8:42 horas, de 31 de enero de 2003, se pronunció señalando lo siguiente: “[…] El sobreseimiento dispuesto por el a quo, atendiendo a que la acción penal se extinguió por prescripción, cierra inexorablemente el proceso por querella y ya no podrán discutirse las demandas civiles en esta sede por la sencilla y lógica razón de que el procedimiento finalizó sin que el fondo fuese discutido y resuelto...” (Suscrito por los Magistrados Daniel González, Jesús Ramírez, Rodrigo Castro, José Manuel Arroyo y Joaquín Vargas Gené). Distinto es el caso en que, como producto del desarrollo del debate, luego de que las partes hayan tenido posibilidad de discutir sobre los hechos, evacuar prueba y formular pretensiones, se advierta la extinción de la acción penal, en cuyo caso el tribunal deberá resolver lo que corresponda en cuanto a la situación jurídica de la persona acusada y en relación con la responsabilidad de los demandados civiles. Este razonamiento guarda absoluta correspondencia con lo dispuesto en el artículo 40 in fine del código instrumental: “La sentencia absolutoria no impedirá al tribunal pronunciarse sobre la acción civil resarcitoria válidamente ejercida, cuando proceda”. Lo anterior por cuanto, el ejercicio conjunto de ambas acciones se llevó a cabo hasta esa etapa procesal y una vez efectuado el debate, el tribunal tiene la obligación de pronunciarse sobre todos los extremos sometidos a su conocimiento, entre ellos las pretensiones civiles. Nótese que el artículo 361 del Código Procesal Penal dispone que los jueces deberán deliberar y votar respecto de las cuestiones, entre ellas “la procedencia de la acción penal y toda otra cuestión incidental que se haya diferido para este momento” (inciso a), así como “Cuando corresponda, lo relativo a la reparación de los daños y perjuicios.” (inciso e). A partir del análisis efectuado es que esta Sala no observa deficiencias en los razonamientos esbozados por el ad quem, sino que, por el contrario, estima que esta es la forma correcta en que debe ser resuelto el extremo jurídico cuestionado. En el presente caso tenemos que el a quo, haciendo uso de la facultad concedida en el ordinal 340 del código instrumental, emitió un sobreseimiento definitivo de forma escrita, sin la celebración del contradictorio. No obstante, omitió pronunciarse sobre la acción civil (…) lo que motivó la interposición del recurso de apelación de sentencia por parte de esta última oficina, al considerar que se le ocasiona un perjuicio a su representado, por no efectuarse el juicio por los extremos civiles, lo que genera, a su vez, que se obligue al agraviado a iniciar un nuevo proceso en la vía civil, con todas las dificultades que esto implica. En respuesta, el Tribunal de Apelación de Sentencia del Segundo Circuito Judicial de Guanacaste, mediante resolución 087-20, de las 10:30 horas del 28 de febrero de 2020, declaró sin lugar la impugnación, al determinar que la emisión del sobreseimiento definitivo por parte del tribunal de juicio impide que se pueda seguir conociendo dentro de la vía penal las pretensiones civiles, por haberse perdido la competencia. Al respecto indicó: “En primer término, el tema debe enfocarse desde el principio de legalidad, así, el artículo 11 de la Constitución Política, refiere, en lo que interesa, que: “los funcionarios públicos son simples depositarios de la autoridad. Están obligados a cumplir los deberes que la ley les impone y no pueden arrogarse facultades no concedidas en ella…”. Lo anterior hace referencia al principio de legalidad, como un límite de la “potestad imperio” que goza la Administración, frente a los ciudadanos, de acuerdo a la legitimación que la misma ley da a sus actuaciones. En ese orden de ideas, conforme lo dispone el artículo 40 del Código Procesal Penal la demanda civil es accesoria a la penal, al destacar que: "la acción civil resarcitoria sólo podrá ser ejercida mientras esté pendiente la persecusión penal", de modo que al extinguirse la segunda acción y siendo que procesalmente depende la acción civil del principal, la obligación de resolver el fondo del extremo civil dependerá si la prescripción de la acción penal es conocida antes o durante la celebración del juicio. Si el tema de prescripción se conoce durante la etapa de debate se puede diferir para sentencia la discusión de la vigencia de la acción. No obstante, en el supuesto de no haber señalado debate y detectarse la prescripción como sucede en el caso concreto, la competencia del tribunal de mérito para conocer el extremo civil se agota al resolver la extinción de la acción penal pues resulta imposible arrogarse una competencia que conforme al principio de legalidad se encuentra circunscrita a la distribución que hace la ley de las diferentes esferas de conocimiento con base en criterios de materia, gravedad o cuantía, territorio y grado, que en el caso concreto se reduce al conocimiento de la causa penal (acción penal).” Más adelante agrega: “Bajo esta línea de pensamiento, esta Cámara concluye que el tema de la competencia que se encuentra estrechamente vinculado con el del juez natural y que constituye una garantía fundamental en cualquier Estado de Derecho, se ve seriamente comprometida cuando se dicta un sobreseimiento definitivo por extinción de la acción penal y posterior señalamiento a juicio para ventilar el extremo civil como propone la recurrente, pues una vez extinguida la acción penal no se cuenta con la competencia legal para llevar acabo un debate sobre el extremo resarcitorio, al no estar pendiente la persecución penal como consecuencia del sobreseimiento definitivo dictado antes del debate.” Estima esta Sala que el análisis efectuado por el ad quem resulta apegado a derecho y se ajusta a la nueva postura que sobre el particular se ha efectuado en el presente pronunciamiento. A partir de lo expuesto, al no observarse deficiencias en la resolución impugnada en la interpretación y aplicación del derecho, lo que corresponde es declarar sin lugar la impugnación interpuesta por la representante de la Oficina de la Defensa Civil de la Víctima. Se varía el criterio jurisprudencial que esta Cámara había sostenido en la resolución 2018-00561, de las 11:10 horas del 17 de agosto del 2018 y se unifica la jurisprudencia en el sentido de que, al declararse prescrita la acción penal en la etapa de juicio sin que se efectúe el contradictorio, la acción civil, por encontrarse subordinada a aquella, no podrá prosperar, ante la imposibilidad de que se impulse de manera autónoma, por la carencia de autorización legal para ello.» (Se suple el destacado). Nótese que la Sala Tercera, en ninguna parte de esa, su decisión sobre el tópico, ni siquiera menciona y mucho menos desciende al análisis del principio constitucional y convencional (ergo, de mayor rango que la ley) de acceso a la justicia y de tutela judicial efectiva para las víctimas que han elegido una vía (penal) y no tienen por qué ser sometidas a la burocratización de andar de un proceso a otro, de un tribunal a otro, rogando (como si se tratara de una potestad y no de un derecho) el reconocimiento de un resarcimiento, con la pérdida de tiempo que ello implica y con la modificación de reglas, incluyendo de prescripción y su forma de cómputo (que, en lo civil, no contarían los actos del proceso penal). Ese principio se encuentra consagrado en el artículo 25.1 de la Convención Americana sobre Derechos Humanos, en el numeral 41 de la Constitución Política y en las Reglas de Brasilia sobre acceso a la justicia de las personas en condición de vulnerabilidad y al respecto ha sido profusa la jurisprudencia de la Corte Interamericana de Derechos Humanos al indicar, por ejemplo: “… la Corte ha establecido que para que un recurso sea efectivo, no basta con que esté previsto por la Constitución o la ley, o que sea formalmente admisible, sino que se requiere que sea realmente idóneo para establecer si se ha incurrido en una violación a los derechos humanos y proveer lo necesario para remediarla. No pueden considerarse efectivos aquellos recursos que, por las condiciones generales del país o incluso por las circunstancias particulares de un caso dado, resulten ilusorios. En virtud de lo anterior, el Estado tiene la responsabilidad no sólo de diseñar y consagrar normativamente un recurso eficaz, sino también de asegurar la debida aplicación de dicho recurso por parte de sus autoridades judiciales” (Corte IDH. Caso Liakat Ali Alibux Vs. Surinam. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 30 de enero de 2014. Párrafo 116). En todo caso, se reitera que aquí sí hubo debate y no se ha alegado la prescripción que, en lo civil, no procede de oficio, por lo que, por estas razones, debe analizarse el tema. (C) Sobre el contenido de la decisión de mérito y la clasificación de los tipos de responsabilidad civil: A partir del considerando VII de la sentencia se alude al tema civil en los siguientes términos que es preciso transcribir a fin de determinar la base jurídica sobre la que se acogió el reclamo civil (nexo, tipo de resarcimiento, montos, obligados, etc.): «El ofendido y damnificado directo en esta causa [Nombre 005]. interpuso Acción Civil (…), demandando civilmente a [Nombre 001] por responsabilidad subjetiva directa y a Temporalidades de la Arquidiócesis de San José por responsabilidad subjetiva indirecta (…) Este Tribunal encuentra el nexo entre el hecho dañoso, la conducta civilmente dolosa de [Nombre 001] y el resultado pernicioso en la integridad sexual del ofendido (…). Se logró acreditar con la declaración del ofendido, el daño moral que sufrido, desprendiéndose de su declaración que para el año dos mil cinco cuando tenía 16 años de edad, vivió una serie de problemas familiares que incidieron en su estabilidad emocional y lo obligaron a buscar ayuda para garantizarse su subsistencia y poder continuar realizando sus estudios de educación básica y de forma particular prepararse para las olimpiadas a nivel nacional en el área de matemáticas, siendo estos elementos los que lo determinaron a dejar su casa e irse a vivir con el Padre [Nombre 001], quien ese momento le ofreció sustento y las facilidades de estudio que requería, por lo que llegó a quererlo como un padre, llamándolo “PA”. El actor civil refirió en su declaración que el imputado representaba una figura de respeto y admiración, no solo por la ayuda que le brindo, también por lo que observaba en él para aquel momento. No obstante, a esos sentimientos el aquí imputado procedió a tocarlo de forma abusiva en sus partes íntimas durante al menos dos ocasiones mientras dormían juntos, lesionando de esta forma su integridad sexual. Acciones que le provocaron gran dolor y decepción pues la figura de soporte espiritual, emocional y económica que tenía recaía de forma exclusiva sobre el aquí Demandado Civilmente que claramente se aprovechó de su vulnerabilidad y ausencia de figuras paternas, que además significó un deterioro espiritual de gran importancia pues la figura del sacerdocio dejo de ser bien percibida por el ofendido, siendo que por su causa fue aislado y agredido con insultos por las redes sociales. Aunado a que no contaba con posibilidades económicas o de otra índole para alejarse de su agresor, lo que represento en su estado psíquico afectaciones sujetas de resarcimiento de acuerdo a la responsabilidad establecida en el artículo 1045 del código civil por acciones dolosas que causen daño a otro. Tal y como está estipulado en la jurisprudencia, los Tribunales Penales están obligados a desglosar y determinar los montos a los que son condenados, con el fin de evitar que las víctimas tengan que acudir a la vía civil a hacer la estimación de los daños. Es por lo que el Tribunal debe acoger el rubro de daño moral en la suma de cinco millones de colones, monto que se considera es conforme a la pretensión de la víctima al momento de la interposición de la demanda y los hechos que se tuvieron por acreditados con el presente fallo, los que corresponden a dos delitos de abuso sexual contra persona menor de edad, si bien, el monto concedido no podrá compensar el daño causado por [Nombre 001] en perjuicio de [Nombre 005]. se considera legítima y atendible la Acción Civil Resarcitoria a efectos de que compense de algún modo el dolor y sufrimiento causado al Actor Civil (…) Dicha suma que se establece de manera simbólica, toda vez que este Tribunal no pretende que con dicha cantidad se solvente el dolor sufrido por el actor. De acuerdo con el Decreto de Honorarios de Abogados y Notarios número 32493, en asuntos penales con acción civil debe estarse a lo indicado en el cálculo que brinda el artículo 18, que señala que cuando el monto sea igual o menor a veinticinco millones de colones, el pago de honorarios será de un veinte por ciento. Así las cosas, el veinte por ciento de la suma indicada es UN MILLÓN DE COLONES, suma que deberá el demandado cancelarle al actor por concepto de costas personales por la acción civil interpuesta, además del monto por el que fue condenado.» (Cfr. sentencia, páginas 92 y siguientes del pdf). Este extremo de la decisión no está siendo cuestionado, de modo que la condena civil contra el encartado, a título personal, se encuentra firme pues, adicionalmente a eso, esta cámara no encuentra ningún vicio en la argumentación pues la responsabilidad emerge del hecho acreditado y el derecho aplicable es correcto. Conviene destacar, eso sí, que al inicio de la transcripción se indica que la demanda contra Temporalidades de la Arquidiócesis de San José se hizo a título de responsable subjetivo por culpa in eligiendo e in vigilando, y no aduciendo la teoría del riesgo o de la responsabilidad civil objetiva. Aunque nada obsta a que, en virtud del principio iura novit curia (que también integra el debido proceso: ver voto número 2010-4587 de la Sala Constitucional) un órgano jurisdiccional aplique adecuadamente el derecho que corresponde a un caso, aunque no sea el invocado, se destaca lo anterior para hacer la diferencia entre los tipos de responsabilidad, que quien impugna no hace. En materia de responsabilidad civil, la doctrina distingue dos tipos: la contractual y la extracontractual. La primera surge de convenios o relaciones jurídicas expresas. La segunda, de actos u omisiones de la vida social. Estos pueden ser dolosos (es decir queridos), culposos (o sea, carentes del deber de cuidado) o estipulados en la ley, con independencia de si hay dolo o culpa o de si se trata de hechos lícitos o ilícitos pues esta se basa en la generación de riesgos (por ejemplo, artículo 1048 del Código Civil) o en la obtención de lucros que deben soportar quienes los propicien (responsabilidad objetiva). Entonces, la responsabilidad civil extracontractual puede ser subjetiva (por dolo o culpa) y esta tanto por hecho propio o directa como por hecho ajeno o indirecta (culpa in eligiendo o culpa in vigilando). La última se encuentra prevista en el numeral 1048 del Código Civil, tercer párrafo, que dice: “El que encarga a una persona del cumplimiento de uno o muchos actos, está obligado a escoger una persona apta para ejecutarlos y a vigilar la ejecución en los límites de la diligencia de un buen padre de familia; y si descuidare esos deberes, será responsable solidariamente de los perjuicios que su encargado causare a un tercero con una acción violatoria del derecho ajeno, cometida con mala intención o por negligencia en el desempeño de sus funciones, a no ser que esa acción no se hubiere podido evitar con todo y la debida diligencia en vigilar.” Esa es diferente del otro tipo de responsabilidad, es decir, la objetiva que, además de la necesidad de previsión legal específica (por ejemplo, en el artículo 1048 párrafo 5 del Código Civil; en el artículo 32 de la Ley de protección y defensa efectiva del consumidor, contenida en el artículo 32; el numeral 197 de la Ley de Tránsito o en los artículos 190 y siguientes de la Ley General de la Administración Pública) el criterio de imputación implica analizar tres requisitos: a) el empleo de cosas que conllevan peligro o riesgo; b) causar un daño de carácter patrimonial; c) establecer la relación o nexo de causa efectos entre el hecho y el daño. Esta, a su vez, puede ser principal o única o solidaria. Esquemáticamente se plantea así:

La sentencia de mérito ya referida señala, inicialmente, que el actor civil 60 invocó una responsabilidad subjetiva indirecta por culpa in vigilando o in eligiendo 40 pero luego. No obstante, más adelante, al aludir al nexo del tercero demandado 20 civil, por la responsabilidad solidaria invocada, lo hace en los siguientes términos: 0 1er trim. 2do 3er trim. 4to «…se interpuso la demanda de forma solidaria en contra de Temporalidades de la trim. trim. Arquidiócesis de San José, por considerar la existencia de una responsabilidad objetiva derivada de que [Nombre 001] para el momento que realiza los hechos ostentaba el puesto de sacerdote párroco de los [Nombre 080] y realiza los actos aprovechándose de su investidura, elemento que genera responsabilidad objetiva en razón de la pertenencia del imputado a la iglesia y las labores que de ella se realizan, así como, de los riesgos que se generen por sus actividades. En el caso particular, este Tribunal ha estimado pertinente aceptar la demanda por responsabilidad solidaria en contra de Temporalidades de la Arquidiócesis de San José que se entablara por el Actor Civil, pues se trata de la responsabilidad subjetiva indirecta o in vigilando que corresponde a la responsabilidad por hechos ajeno, es decir, la conducta generadora de responsabilidad civil se realiza por un sujeto distinto al que se responsabiliza de la acción, la que se asume por la responsabilidad que tenemos todos de vigilar las personas, animales o cosas que dependen de nosotros y de ser cautos en la elección de quien queremos servirnos. De allí que pueda concluirse que cuando exista falta, o insuficiente vigilancia de las personas a nuestro cargo se incurra en responsabilidad, tal y como sucedió en el caso que nos ocupa. Pues, en el contradictorio se evidenció a través de las declaraciones de [Nombre 038] y los propios miembros de la iglesia el padre [Nombre 079] y [Nombre 078], la insuficiente vigilancia que se ejercía sobre las actuaciones del demandado civil [Nombre 001], mismas que incluso fueron de conocimiento de la Iglesia desde antes al 10 de julio de 2014, sin que se tomaran acciones para controlar lo que estaba sucediendo e incluso enmendar las situaciones acontecidas y en forma contraria se tomó una posición de callar lo que era de su conocimiento amparados en la doctrina del perdón que rige a la Iglesia Católica, refiriéndose, incluso por parte del Padre [Nombre 079] que “nadie divulga sus pecados” manifestaciones que evidencian el conocimiento de la iglesia de lo que acontecía, respecto a actuaciones del demandado civil, desprendiéndose del contradictorio que a él se le realizaban visitas e incluso, se le expuso en una reunión donde participaban varios feligreses, conociéndose todas estas situaciones por el mismo líder máximo de la Iglesia, sin que se tomaran acciones concretas en cuanto a su responsabilidad como párroco frente a los miembros de la comunidad católica que participaba en sus actividades, omisión que no se justifica de ninguna manera, pues, en el momento que se divulgó lo sucedido por medios de comunicación sí se tomaron acciones claras e inmediatas dirigidas a no incurrir en mayores riesgos que pudieron solventar oportunamente por quienes les correspondía vigilar los actos del sacerdote imputado, máxime si se toma en consideración que los hechos acreditados ocurren en las propias instalaciones de la Iglesia de los Guidos. Ante tales omisiones en su deber de vigilancia, es que este Tribunal considera legítimo condenar a Temporalidades de la Arquidiócesis de San José al pago de los montos concedidos al actor de forma solidaria. Lo anterior en virtud, de que el Tribunal tuvo por establecido de acuerdo a las declaraciones del Padre [Nombre 079], que el demandado se crea con el ánimo de poder manejar bienes a nombre de la Iglesia, figurando la demandado como parte de la actividad de la Iglesia en un plano económico, siendo claro que funcionan como un grupo de Interés económico en el que las diferentes actividades se registran de manera organizada y funcional, sin que pueda eliminarse el nexo existente entre ambas, que incluso se acredita con el hechos que para la fecha de los hechos el demandado civil [Nombre 001] recibía de la planilla de la caja un salario, ligado a Temporalidades de la Arquidiócesis de San José, por lo que debe rechazarse la excepción de falta de legitimación pasiva y tenerse a Temporalidades de la Arquidiócesis de San José como demandado civil, debiendo asumir la responsabilidad civil en forma solidaria.» (Cfr. sentencia, considerando de lo civil; el destacado es suplido). De lo transcrito puede verse que en la sentencia se usan indistintamente los términos responsabilidad objetiva y responsabilidad subjetiva por culpa in eligiendo o in vigilando, sin que sea sinónimos. Eso mismo hace quien impugna. No obstante, el contenido de lo resuelto es enfático en atribuir la responsabilidad solidaria de la Iglesia Católica por la falta de vigilancia del sacerdote, aspecto que es importante dejar sentado desde ya, en la medida en que coincide con el planteamiento de la parte actora civil y porque no hay ninguna disposición normativa expresa que estipule la responsabilidad objetiva (por riesgo creado o por lucro obtenido) tanto de la Iglesia Católica en general como de Temporalidades de la Arquidiócesis de San José en particular. (D) Sobre la legitimación pasiva del tercero civilmente responsable . Ahora bien, el grueso de la argumentación del recurrente se centra, en primer lugar, en establecer que Temporalidades de la Arquidiócesis de San José no es equivalente a la Iglesia Católica y que aquella persona jurídica no tiene ninguna relación con el encartado en tanto este actúa como sacerdote. Es decir, se cuestiona la legitimación pasiva de su patrocinada para hacer frente a la indemnización solidaria que se fijó. Para abordar el tema conviene enunciar las particularidades jurídicas y los antecedentes que rodean el tema. (D.1) Marco jurídico aplicable. Costa Rica es uno de los pocos países del mundo que, en su texto constitucional, establece una vinculación del Estado con una religión, en este caso la católica, eso en el numeral 75. En virtud de ese vínculo (que no data de la Constitución vigente en 1949 sino que se extiende hacia atrás en el tiempo), han existido relaciones diplomáticas con El Vaticano y se suscribió un Concordato, el 07 de octubre de 1852 ratificado mediante Ley n.° 24 del 2 de diciembre de 1852 y derogado menos de dos años más tarde, mediante la Ley n.° 45 del 28 de julio de 1884, producto de las ideas liberales y anticlericales de la época. Ese contexto permite comprender más fácilmente el que se emitiera la ley n°. 6062 del 18 de julio de 1977 la cual dispone: “Artículo 1º.- Se le otorga personería jurídica a la Conferencia Episcopal Nacional de Costa Rica, así como también a cada una de la Diócesis o Jurisdicciones Eclesiásticas en que está dividido el territorio nacional, por ahora la de San José, Alajuela, Tilarán, San Isidro de El General y Limón y a las que puedan erigirse en el futuro. Artículo 2º.- Tanto la Conferencia, como cada una de las Diócesis, tendrán plena capacidad jurídica para hacer toda clase de actos y contratos dentro del marco de las leyes vigentes. Artículo 3º.- El representante de la Conferencia lo será su Presidente, elegido por los miembros de la misma Conferencia, de acuerdo con sus propios estatutos y el de cada Diócesis su correspondiente obispo diocesano. Todos ellos tendrán las facultades que determina el artículo mil doscientos cincuenta y tres del Código Civil, sin limitaciones de ninguna clase. Aquellos representantes se elegirán sin un plazo determinado y su nombramiento podrá revocarlo, en cualquier momento, quien lo hizo. Tales representantes deberán inscribirse en la Sección de Personas del Registro Público, con protocolización formal del acuerdo de su nombramiento. Artículo 4º.- De igual manera, tanto la Conferencia como cada una de las Diócesis del país, podrán constituir toda clase de apoderados con las facultades que estimen necesario conferirles en el acto de su nombramiento. Artículo 5º.- Para los efectos legales, la Conferencia deberán llevar un libro de actas, que legalizará el Departamento de Libros de la Dirección General de la Tributación Directa del Ministerio de Hacienda. Artículo 6º.- Rige a partir de su publicación. Transitorio: Los poderes que actualmente están inscritos para representar la Conferencia Episcopal Nacional de Costa Rica, o las diferentes Diócesis constituidas al amparo del Decreto Ejecutivo número dieciséis del siete de mayo de mil novecientos setenta, seguirán surtiendo efectos legales mientras no sean modificados o revocados.” (las negritas son suplidas). Nótese que, sin ser una persona estatal ni una entidad comercial o de otra naturaleza (asociación, fundación, etc.) la citada normativa le dotó de personería jurídica, bajo la denominación de Conferencia Episcopal Nacional de Costa Rica y lo mismo hizo con cada una de las diócesis o territorios en que se divide la jurisdicción eclesiástica en un país. Adicional a ello, la ley fue reglamentada por el Poder Ejecutivo y en el Reglamento que Desarrolla los Alcances de la ley que otorga personería jurídica a la Conferencia Episcopal y Diócesis Eclesiásticas señalando la situación de los órganos que componen la Iglesia Católica decreto ejecutivo número 32370 vigente desde el 19 de mayo de 2005 se establece:

«Considerando:

1º- Que mediante la Ley Nº 6062 se le otorgó personería jurídica a la Conferencia Episcopal Nacional de Costa Rica, así como también a cada una de las Diócesis o Jurisdicciones Eclesiásticas, confiriéndoles al efecto plena capacidad jurídica.

2º- Que si bien la Ley 6062 otorgó personería jurídica a la Conferencia Episcopal Nacional de Costa Rica, así como a cada una de las Diócesis o Jurisdicciones Eclesiásticas en que está dividido el territorio Nacional , no dispuso, ni reguló lo propio sobre el resto de la organización interna de la Iglesia Católica en el país, ni de su proyección en el ordenamiento jurídico nacional.

3º- Que es función del Ministerio de Relaciones Exteriores y Culto, conforme al Decreto Ejecutivo Nº 19561-RE, del 9 de marzo de 1990, "promover la armonía entre las autoridades civiles y eclesiásticas" y "proteger el libre ejercicio del culto católico y de cualquier otro que no se oponga la moral universal y las buenas costumbres"; 4º- Que el canon 369 del Código de Derecho Canónico indica: "La diócesis es una porción del pueblo de Dios cuyo cuidado pastoral se encomienda al Obispo con la cooperación del presbiterio, de manera que, unida a su pastor y congregada por él en el Espíritu Santo mediante el Evangelio y la Eucaristía, constituya una Iglesia particular, en la cual verdaderamente está presente y actúa la Iglesia de Cristo, una, santa, católica y apostólica", 5º- Que también el Canon 447 del Código de Derecho Canónico señala que: "La Conferencia Episcopal, institución de carácter permanente, es la asamblea de los Obispos de una nación o territorio determinado, que ejercen unidos algunas funciones pastorales respecto de los fieles de su territorio para promover, conforme a la norma del derecho, el mayor bien que la iglesia proporciona a los hombres, sobre todo mediante formas y modos de apostolado convenientemente acomodados a las peculiares circunstancias de tiempo y lugar".

6º- Que el Estado Costarricense reconoce que la estructura y organización de la Iglesia Católica es muy compleja y tiene la pretensión de lograr una armonía entre lo meramente material con lo espiritual.

7º- Que la Procuraduría General de la República en el pronunciamiento OJ-076-1999, del 23 de junio de 1999, manifestó sobre su naturaleza que se trata de una persona moral sui géneris y que "Dentro del ordenamiento civil, la Iglesia Católica y las temporalidades, por su especial naturaleza, no constituyen sociedades ni asociaciones civiles, sin embargo, se les reconoce como persona jurídica a través del reconocimiento universal e internacional de que goza la Iglesia. Ese reconocimiento se concreta en Costa Rica, a través de una serie de leyes y decretos que originaron la existencia de una entidad jurídica denominada "Temporalidades de la Iglesia"; por medio de la cual actuara la Iglesia Católica", 8º- Que también debe el Ministerio de Relaciones Exteriores y Culto "reglamentar el status jurídico de las entidades religiosas, sin afectar la autonomía, su organización interna y los derechos que les competen para el libre ejercicio de sus actividades", por lo que en aras de completar las disposiciones legales para armonizarlas con las normas y reglas que rigen la Iglesia Católica. Por tanto ,

DECRETAN:

Artículo 1º- Este Reglamento tiene por objeto desarrollar los alcances de la Ley Nº 6062, del 8 de julio de 1977, señalando la situación jurídica de todos los órganos que componen la Iglesia Católica, respetando la normativa eclesiástica y el libre ejercicio de sus actividades, tanto en el orden espiritual, como en el temporal.

Artículo 2º- Para los efectos de este Reglamento se considera parte de la Iglesia Católica en Costa Rica los siguientes:

1. Personas Jurídicas Canónicas:

Conferencia Episcopal Nacional, Diócesis o Iglesias particulares, Iglesia Catedral, Parroquias y Cuasi-Parroquias, Rectorías, Capellanías y Cualquier otra persona jurídica pública de la Iglesia conformada según el Código de Derecho Canónico de la Iglesia Católica.

2. Jerarquía de la Iglesia:

Obispos (tanto diocesanos, auxiliares o coadjutores y eméritos), Presbíteros y Diáconos.

3. Otros grupos o de Vida Consagrada:

Institutos religiosos, Institutos seculares, Sociedades de Vida Apostólica.

Artículo 3º- Se entiende por derecho interno de la Iglesia Católica el conjunto de disposiciones y normas que rigen la organización interna y las actividades de dicha Iglesia, que incluyen: el Código de Derecho Canónico, el Derecho Eclesiástico Universal y el Derecho Eclesiástico Particular. Todo ellos tendrán el valor y alcance que la propia Iglesia Católica les confiere y surtirán los efectos jurídicos para los sujetos y las relaciones por ellas reguladas.

Artículo 4º- Se reconoce a la Conferencia Episcopal Nacional de Costa Rica, así como a cada una de las diócesis, la facultad de dictar las directrices, políticas y reglamentos que regirán los órganos e instituciones que las integran respectivamente, así como la definición de sus competencias y estructura funcional.

Artículo 5º- Para el cumplimiento de sus fines, la Iglesia Católica podrá adoptar la organización institucional prevista en su ordenamiento interno, así como utilizar las formas jurídicas autorizadas en la legislación común.

Artículo 6º- Rige a partir de su publicación. » (Se suple el destacado).

Este Reglamento es relevante ya que, en primer lugar, establece un ligamen entre la Iglesia Católica, la Conferencia Episcopal, las diócesis, las parroquias, los obispos y los presbíteros, interconectándolos a todos a un mismo ente y reconociendo el carácter complejo de la organización. En segundo término, reconoce jurídicamente, con efectos civiles y nacionales, el valor y alcance que las disposiciones religiosas internas establezcan en concreto del Derecho Eclesiástico (universal y particular) y el Código de Derecho Canónico . En este último cuerpo normativo se ubican estos cánones: “391 §1. Corresponde al Obispo diocesano gobernar la Iglesia particular que le está encomendada con potestad legislativa, ejecutiva y judicial, a tenor del derecho. §2. El Obispo ejerce personalmente la potestad legislativa; la ejecutiva la ejerce por sí o por medio de los Vicarios generales o episcopales, conforme a la norma del derecho; la judicial tanto personalmente como por medio del Vicario judicial y de los jueces, conforme a la norma del derecho. 392 § 1. Dado que tiene obligación de defender la unidad de la Iglesia universal, el Obispo debe promover la disciplina que es común a toda la Iglesia, y por tanto exigir el cumplimiento de todas las leyes eclesiásticas. § 2. Ha de vigilar para que no se introduzcan abusos en la disciplina eclesiástica, especialmente acerca del ministerio de la palabra, la celebración de los sacramentos y sacramentales, el culto de Dios y de los Santos y la administración de los bienes. 393 El Obispo diocesano representa la diócesis en todos los negocios jurídicos de la misma (…) 448 § 1. Como regla general, la Conferencia Episcopal comprende a los prelados de todas las Iglesias particulares de una misma nación, (…) 449 §1. Compete exclusivamente a la autoridad suprema de la Iglesia, oídos los Obispos interesados, erigir, suprimir o cambiar las Conferencias Episcopales. § 2. La Conferencia Episcopal legítimamente erigida tiene en virtud del derecho mismo personalidad jurídica. 450 § 1. Por el derecho mismo, pertenecen a la Conferencia Episcopal todos los Obispos diocesanos del territorio y quienes se les equiparan en el derecho, así como los Obispos coadjutores, los Obispos auxiliares y los demás Obispos titulares que, por encargo de la Santa Sede o de la Conferencia Episcopal, cumplen una función peculiar en el mismo territorio; pueden ser invitados también los Ordinarios de otro rito, pero sólo con voto consultivo, a no ser que los estatutos de la Conferencia Episcopal determinen otra cosa (…) 451 Cada Conferencia Episcopal debe elaborar sus propios estatutos, que han de ser revisados por la Sede Apostólica, en los que, entre otras cosas, se establezcan normas sobre las asambleas plenarias de la Conferencia, la comisión permanente de Obispos y la secretaría general de la Conferencia, y se constituyan también otros oficios y comisiones que, a juicio de la Conferencia, puedan contribuir más eficazmente a alcanzar su fin. 515 §1 La parroquia es una determinada comunidad de fieles constituida de modo estable en la Iglesia particular, cuya cura pastoral, bajo la autoridad del Obispo diocesano, se encomienda a un párroco, como su pastor propio. §2. Corresponde exclusivamente al Obispo diocesano erigir, suprimir o cambiar las parroquias, pero no las erija, suprima o cambie notablemente sin haber oído al consejo presbiteral. § 3. La parroquia legítimamente erigida tiene personalidad jurídica en virtud del derecho mismo (…) 523 (…) la provisión del oficio de párroco compete al Obispo diocesano, mediante libre colación, a no ser que alguien goce del derecho de presentación o de elección. 524 El Obispo diocesano debe encomendar la parroquia que haya quedado vacante a aquel que, ponderadas todas las circunstancias, considere idóneo para desempeñar en ella la cura parroquial, dejando de lado cualquier acepción de personas; para juzgar sobre la idoneidad, oiga al arcipreste y realice las investigaciones oportunas, pidiendo parecer, si el caso lo aconseja, a algunos presbíteros y fieles laicos.” De lo transcrito conviene destacar, entonces, la equiparación (parcial, aunque para nuestros efectos mínima necesaria) que allí se hace entre las instituciones denominadas de Iglesia Católica local, Conferencia Episcopal, Obispos y Presbíteros y el nivel de obediencia y dependencia que estos últimos tienen respecto de los precedentes, así como el que los cánones citados otorgan deberes de elección y vigilancia a los obispos respecto a los párrocos que requieren tener la condición de presbíteros para ejercer su función y reconocen la personería jurídica de unos y otros en representación de la Iglesia Católica en el marco de sus competencias. Entonces, esto es relevante tanto para hacer referencia a los argumentos del apelante en cuanto a los diferentes nombres jurídicos como para derivar, jurídicamente, la obligación de elección y vigilancia que estatuye la ley civil originalmente citada. En similar sentido, la Procuraduría General de la República, al emitir el dictamen No. 81 del 13 de abril de 2011 en donde analizó el régimen jurídico de la Iglesia Católica y de sus distintos órganos en Costa Rica, hizo referencia a los alcances de las obligaciones en los siguientes términos; «5-. La Conferencia Episcopal es un órgano colegiado, integrado por los Obispos de una Nación, organizados para ejercer funciones pastorales respecto de los fieles de esa Nación, actuando esencialmente mediante formas de apostolado. Esa organización se rige por el Derecho Canónico y los estatutos de que se dote, que son aprobados en último término por la Sede Apostólica. 6-. La personalidad jurídica de la Conferencia Episcopal es otorgada por el canon 449.2 del Código Canónico y en el caso costarricense ha sido, además, reconocida por la Ley N. 6062 de 18 de julio de 1977, desarrollada por el Decreto Ejecutivo N. 32370 de 2 de mayo de 2005. Norma que expresamente reconoce que las personas eclesiásticas son “personas jurídicas canónicas”, artículo 2. Personalidad jurídica que es diferente a la propia de una organización privada.» Para llegar a esas conclusiones se basó en el siguiente razonamiento: «…la Conferencia Episcopal, tenemos que encuentra su origen en el Derecho Canónico. De acuerdo con el canon 447, “es la asamblea de los Obispos de una nación o territorio determinado, que ejercen unidos algunas funciones pastorales respecto de los fieles de su territorio, para promover conforme a la norma del derecho el mayor bien que la Iglesia proporciona a los hombres, sobre todo mediante formas y modos de apostolado convenientemente acomodados a las peculiares circunstancias de tiempo y de lugar”. De acuerdo con lo cual ese órgano colegiado tiene funciones pastorales y su finalidad es la promoción de la Iglesia mediante el apostolado. Erigir, suprimir o cambiar una Conferencia Episcopal es competencia de la autoridad suprema de la Iglesia, canon 449, parágrafo 1. La Conferencia se rige por sus propios estatutos, que son revisados por la Sede Apostólica o Santa Sede, canon 451. Son esos estatutos los que regulan el órgano colegiado y la posibilidad de constituir comisiones y otros órganos, incluido lo referente a su dirección (presidente, vicepresidente, secretario general). Los decretos generales que emita la Conferencia están sujetos a la revisión de la Sede Apostólica para su eficacia. Estas disposiciones reafirman que no se está ante una regulación de derecho interno. La personalidad jurídica de la Conferencia surge del propio Derecho Canónico, según lo dispuesto en el canon 449.2. Lo que no excluye que el derecho nacional le otorgue un reconocimiento. Es el caso de lo dispuesto en la Ley N. 6062 de 18 de julio de 1977, que le otorga personería jurídica a la Conferencia y a las Diócesis Eclesiásticas. De acuerdo con dicha Ley, se otorga personería jurídica tanto a la Conferencia como a cada una de la Diócesis o Jurisdicciones Eclesiásticas en que está dividido el territorio nacional. En realidad, si tomamos en cuenta que lo atribuido permite tanto a la Conferencia como a cada Diócesis el tener capacidad jurídica para realizar cualquier clase de actos y contratos dentro del ordenamiento costarricense, artículo 2 de la Ley, cabe considerar que la ley lo que atribuye es la personalidad jurídica a la Conferencia. La ley establece que el representante de la Conferencia será elegido de acuerdo con los estatutos y tendrá las facultades que determina el artículo 1253 del Código Civil, sin limitaciones de ninguna clase. El Decreto Ejecutivo N. 32370 de 2 de mayo de 2005, Reglamento que Desarrolla los Alcances de la ley que otorga personería jurídica a la Conferencia Episcopal y Diócesis Eclesiásticas señalando la situación de los órganos que componen la Iglesia Católica, parte de que la Ley ha otorgado personalidad jurídica a la Conferencia y desarrolla esa personalidad a partir del reconocimiento de lo establecido en el Derecho Canónico . Por lo cual la regulación que comprende respeta “la normativa eclesiástica y el libre ejercicio de sus actividades, tanto en el orden espiritual, como en el temporal”, artículo 1. En ese sentido, la Conferencia Episcopal, las diócesis o iglesias particulares, las parroquias y cuasi parroquias, la Iglesia Catedral, las rectorías y capellanías son consideradas “personas jurídicas canónicas”, artículo 2. Por lo que no se trata de una personalidad de Derecho Privado. Además, se reconoce como derecho interno de la Iglesia Católica, artículo 3º, el conjunto de disposiciones y normas que rigen la organización interna y las actividades de dicha Iglesia, que incluyen: el Código de Derecho Canónico, el Derecho Eclesiástico Universal y el Derecho Eclesiástico Particular. Disposiciones que rigen los sujetos y relaciones propias de la Iglesia Católica. No obstante, se le faculta en el artículo 5 para: “Artículo 5º—Para el cumplimiento de sus fines, la Iglesia Católica podrá adoptar la organización institucional prevista en su ordenamiento interno, así como utilizar las formas jurídicas autorizadas en la legislación común”. Se sigue de lo expuesto que el ordenamiento nacional ha reconocido que la personalidad jurídica de la Conferencia Episcopal se rige por disposiciones especiales, que no son la de Derecho Civil. Esta condición fue señalada por la Procuraduría General de la República en la Opinión Jurídica OJ-076-1999 de 23 de junio de 1999, en que se indicó refiriéndose en general a la Iglesia Católica: “Dentro del ordenamiento civil, la Iglesia Católica y las temporalidades, por su especial naturaleza, no constituyen sociedades ni asociaciones civiles, sin embargo, se les reconoce como persona jurídica a través del reconocimiento universal e internacional de que goza la Iglesia. Ese reconocimiento se concreta en Costa Rica, a través de una serie de leyes y decretos que originaron la existencia de una entidad jurídica denominada "Temporalidades de la Iglesia" por medio de la cual actuará la Iglesia Católica”.» (Se suple el destacado). Nótese cómo este criterio del ente jurídico estatal equipara, para los fines de representación general y en el marco de sus competencias, a las diferentes denominaciones (Temporalidades de la Arquidiócesis de San José, Conferencia Episcopal, Iglesia Católica, etc.) y, conforme a lo expuesto, les dota de personalidad jurídica “civil” (pues esta reconoce la canónica). En sentido similar se pronuncia BRENES ÁLVAREZ (Pedro). La condición jurídica de la Iglesia Católica en Costa Rica . Universidad de Costa Rica. Tesis de grado para optar al título de Licenciado en Derecho, 1976. Si bien allí se estableció que la remuneración de los sacerdotes provenía de los fieles, no era salarial y, en consecuencia, ellos no eran trabajadores y no había una relación laboral entre ellos y la Conferencia Episcopal, hizo tal cosa para los efectos del artículo 75 de la Ley de Protección al Trabajador, tema que carece de importancia acá y que, dicho sea de paso, tampoco vincula a esta autoridad, dado el principio de independencia constitucional, con rango constitucional y convencional. En consecuencia, que existan procesos jurisdiccionales en que se discuta si un sacerdote es o no empleado de dicha Conferencia para otros extremos (pago de cargas sociales) ni genera litis pendencia, prejudicialidad o cosa juzgada ni obliga a esta cámara a atenerse a dicho criterio. Por todo lo anterior, no es cierto el criterio de quien recurre de que su representada carezca de legitimación para intervenir en el proceso, pues, al ser la jerarca del sacerdote, que desempeñaba funciones parroquiales, y ser este elegido por el obispo, este y la Conferencia Episcopal, las Diócesis o las Temporalidades (figuras todas con personalidad jurídica canónica reconocida en la ley civil) responden por la inobservancia de los deberes de vigilancia o elección que les competían. (D.2) Doctrina del levantamiento del velo. En todo caso, lo que los apoderados de la demandada civil pretenden es interponer el velo de una persona jurídica (Temporalidades de la Arquidiócesis de San José, Iglesia Católica, Conferencia Episcopal, Obispos, etc.) para no ser responsabilizados (pero sí obtener los beneficios, vistos civilmente y no desde el plano espiritual, como la representación, la obediencia, etc.) de las personas físicas (sacerdotes, presbíteros, párrocos, etc.) a través de los cuales actúan. Por ello, nuestra legislación autoriza a que se haga el levantamiento del velo social, a fin de que, quien pretende beneficiarse indebidamente de ello, no logre su propósito. Si esto es así frente a personas jurídicas civiles formalmente constituidas, aplica, con paridad de razón, frente a la organización de la Iglesia Católica pues lo autorizan los artículos 20, 21 y 22 del Código Civil, que establecen: “Artículo 20: Los actos realizados al amparo del texto de una norma, que persigan un resultado prohibido por el ordenamiento, o contrario a él, se consideran ejecutados en fraude de ley y no impedirán la debida aplicación de la norma que hubieren tratado de eludir. Artículo 21: Los derechos deberán ejercitarse conforme con las exigencias de la buena fe. Artículo 22: La ley no ampara el abuso del derecho o el ejercicio antisocial de éste. Todo acto u omisión en un contrato, que por la intención de su autor, por su objeto o por las circunstancias en que se realice, sobrepasa manifiestamente los límites normales del ejercicio de un derecho, con daño para terceros o para la contraparte, dará lugar a la correspondiente indemnización y a la adopción de las medidas judiciales o administrativas que impidan la persistencia en el abuso”. Se trata de la teoría del levantamiento del velo social y “Consiste en la posibilidad del juzgador de determinar quienes se encuentran tras la persona jurídica. Procura resolver situaciones de trascendencia jurídica no a través de la persona jurídica sino por medio de los sujetos reales quienes de forma efectiva actúan bajo esa apariencia. Básicamente se ha utilizado en incumplimientos contractuales, actos de competencia desleal, fraude de ley -particularmente en materia tributaria-, daño fraudulento en perjuicio de tercero, y en las quiebras de las sociedades anónimas (...) Se observa básicamente en el tratamiento en el nivel jurisprudencial en materia laboral al resolver sobre el contrato realidad y determinar la verdadera relación obrero patronal. A nivel legislativo en el derecho tributario se utiliza particularmente para determinar el obligado y evitar el fraccionamiento de capital. En la reciente Ley de Protección y Defensa del Consumidor permite al consumidor conocer el productor”. Sala Primera de la Corte Suprema de Justicia, voto número 128-F de las 14:40 horas del 16 de diciembre de 1998 (el destacado es suplido). Nótese que si, para todos los propósitos, la Iglesia Católica, las Temporalidades de la Arquidiócesis de San José, la Conferencia Episcopal o los obispos se valen de sus párrocos para ser representados, mal podrían alegar que carecen de responsabilidad aquellas denominaciones en los daños que estos efectúen a terceros. (D.3) Antecedentes. Adicional a lo anterior, aunque sin referencias a esas disposiciones, ya otros tribunales han establecido la responsabilidad que compete a Temporalidades de la Arquidiócesis de San José (nombre bajo el cual opera, para efectos civiles, dicha organización en temas “materiales”). Véase que la Sala Tercera, mediante voto número 2013-371 (J.M. Arroyo, C. Chinchilla, M. Pereira, R. Sanabria y J. Ramírez) declaró inadmisible, por extemporánea, la casación planteada respecto del voto del Tribunal de Apelación de Sentencia Penal del Segundo Circuito Judicial de San José número 2012-2411 (L. Murillo, I. Estrada y H. Ulloa). En este último se conoció un caso de características similares (sexual, en donde se condenó solidariamente, producto de una responsabilidad civil extracontractual, a Temporalidades de la Arquidiócesis de San José). Por la similitud de circunstancias y porque los argumentos expuestos son compartidos por esta cámara, a fin de evitar reiteraciones, se procede a citar dicho precedente advirtiendo que la transcripción es amplia pero necesaria, dado lo polémico del tema: «ii) Naturaleza de la función eclesial y su trascendencia en el plano social: Desde sus orígenes, la Iglesia Católica ha tenido una función evangelizadora y orientadora en la ética social que se ha mantenido a través de los siglos. Resulta claro que la Iglesia ha sido una institución con gran presencia (…) cuya actividad en los planos político y social ha ido de la mano del quehacer estatal, al punto que en algún momento se ha hablado de un binomio entre Iglesia y Estado. Si bien es cierto el Estado Costarricense se ha decantado por un modelo tolerante en cuanto a la libertad de culto permitiendo a los ciudadanos elegir y profesar otras creencias, lo cierto es que también declara a la “Religión Católica, Apostólica, Romana” como la religión de Estado, disposición que tiene raigambre constitucional (Artículo 75 de la Constitución Política). De manera que, la actividad de la Iglesia trasciende al plano de la moral social hasta el punto de que, en la concepción popular de los fieles, la Iglesia ejerce una misión no solamente orientadora, sino que se involucra en un deber ejemplarizante para la sociedad. Los sacerdotes y las personas que ejercen alguna función eclesial que implique una relación interpersonal, como lo son los Ministros de la Eucaristía o la Catequesis y, cualquier otra labor educativa de contenido religioso y docente, deben cumplir con un sagrado deber de conducción ética y una función que trasciende la conducta en el sentido de que no solamente es en el plano puramente individual, sino que deben constituirse en ejemplos vivos de la moral que la misma Iglesia a través de los siglos y desde su fundación, ha mantenido y ha predicado. iii) Sobre la responsabilidad civil solidaria de la iglesia: La Iglesia, tal y como se indicó, realiza un servicio a la comunidad de sus fieles, servicio en el cual asume una determinada posición frente a las personas que congrega, por el compromiso mismo de desarrollar su misión evangelizadora, de acción social y en la cual incorpora a fieles para delegarle algunas funciones eclesiales, selección que pasa por el criterio del sacerdote, máximo representante en la comunidad, de la estructura de organización de la Iglesia Católica y de la Arquidiócesis a la que pertenece. Si bien es cierto la práctica religiosa es, en esencia, libre y nadie está obligado a participar ni acudir a las ceremonias y servicios religiosos, cuando se hace porque se profesa y practica la fe, se acepta la estructura y organización de la Iglesia y se confía en las decisiones del sacerdote como tal, algunas de las cuales incluso, toma en asocio con miembros de la comunidad. Así, si para el desarrollo propio del servicio que presta y la organización de sus actividades, el sacerdote, pero en general la Iglesia, realiza selecciones de seglares o feligreses para que coadyuven con algunas tareas propias del giro mismo de actividades de la Iglesia, quien lo escoge y quien preside jerárquicamente esa estructura de delegaciones, como responde con su patrimonio por los daños que se ocasione por las personas designadas y delegadas, en el cumplimiento de tales tareas, aprovechando las facilidades que esa escogencia de la que han sido objeto, les presenta, que no las tiene el común de feligreses precisamente porque tal selección parte de criterios del sacerdote y establecidos por la Diócesis o Arquidiócesis a la que pertenece, siendo todas estas actividades parte del desarrollo del servicio que presta la Iglesia Católica. Al igual que en el caso de los educadores en general, las autoridades eclesiásticas tienen responsabilidad precisamente por esa delegación que existe por parte de una autoridad superior a un tercero con el cual existe una relación de confianza, para el cumplimiento de obligaciones que implican en sí mismas una relación interpersonal, de servicio a la Iglesia como Institución y que son funciones estrechamente relacionadas con el Magisterio de la Iglesia (entiéndanse incluidos figuras que ejercen una función eclesial en general) y, por ende, encuentran sentido solamente en ella, como parte del desarrollo de su función en la sociedad y comunidad de fieles. En determinados ámbitos, como lo es el cuidado pastoral por ejemplo, debe hacerse especial énfasis en el hecho de que más que la relación de subordinación entre el agente que delega y el sujeto activo directo del acto dañoso, está de por medio que -independientemente de la subordinación- sí existe la obligación a una especial prudencia en elegir y vigilar, puesto que un descuido en tales previsiones, acarrea la producción o el riesgo del daño, y con él, vulneración de la confianza que la propia posición social histórica de lo eclesial comporta para los fieles. En otras palabras, es un elemento de especial relevancia, la credibilidad que impera o debe haber imperado de parte del sujeto pasivo de daño o del abuso y el estamento religioso, máxime cuando es la misma Iglesia la que acoge en su seno a personas menores de edad, con el fin de que realicen funciones dentro de la misma liturgia o bien, asistan a cursos de catequesis en general. En conclusión, puede establecerse la existencia de una responsabilidad civil solidaria inherente de las conductas de quienes, por su posición frente a la comunidad, ostentan cargos de orientación, ya en el ámbito educativo, ya en el orden eclesial y catequístico. Resulta medular que tales funcionarios y guías, deben observar mayor tino y tomar todas las previsiones que brinden seguridad de que, al delegar sus delicadas funciones docentes y de formación moral y religiosa, no creen una situación en la cual no están debidamente garantizados los derechos de los educandos y de los fieles. Esto es cierto, y lo es con mayor énfasis, cuando se trate de personas que, por su condición de personas menores de edad, sean especialmente vulnerables, de allí que ya la actividad de por sí resulta riesgosa para una persona menor de edad a la luz de la interrelación que existe entre adultos que son considerados figuras de autoridad, ejemplificantes y de confianza, ante personas menores de edad que desean profesar su fe mediante actividades religiosas dirigidas y encomendadas por tales figuras. iv.- Del caso en concreto: Resulta necesario transcribir las razones que el Tribunal plasmó en el fallo, y sobre las cuales fundamenta la responsabilidad civil de las Temporalidades de la Arquidiócesis: “En lo que respecta a la responsabilidad civil de Temporalidades Arquidiócesis de San José que es la persona jurídica que representa la Iglesia Católica, su responsabilidad deriva de la ausencia de una vigilancia debida del encartado que fungía un papel en el desempeño eclesiástico, deber que le asistía al jerarca de la iglesia (…) Es claro que el demando civil A no es un empleado remunerado de la iglesia, jurídicamente representada por Temporalidades Arquidiócesis de San José, pues a lo largo del debate los testigos vinculados con el ejercicio del Ministerio de la Eucaristía o la pastoral informaron al Tribunal que el puesto es meritorio y voluntario, la elección la realiza el sacerdote de la parroquia con base en consultas que realiza a los feligreses y a la propia observación de la conducta social del interesado en asumir la función y que luego de hecha la elección el futuro Ministro recibe una capacitación y asume un compromiso de carácter espiritual para con la Iglesia Católica y que este compromiso se renueva cada tres años, por parte del sacerdote que tiene la potestad de destituir a quien no considere digno del cargo. No obstante, la ausencia de una remuneración no desliga a la Iglesia como persona jurídica de su responsabilidad en ejercer una vigilancia debida de estas personas que desempeñan un papel en la función de evangelización, pues estos Ministros tienen contacto con los feligreses que asisten a la iglesia o que abren las puertas de sus casas para recibir la comunión, en el entendido de que los Ministros de la Eucaristía tienen un respaldo de la Iglesia (…) se evidencia la ausencia del celo esperado a su jerarquía, incurriéndose así en una culpa in vigilando que en este caso tuvo una consecuencia dañosa para la actora civil (…) debe ser asumida de manera solidaria entre la Iglesia Católica representada por Temporalidades Arquidiócesis de San José (…) Como ya se indicó, la Iglesia como Institución y como autoridad religiosa, presta un servicio ante la comunidad de feligreses, lo que en este caso resultó escenario propicio, para que confluyeran dos hechos determinantes: primero, una escogencia inadecuada de una persona que no era apta para desempeñarse dentro de los cánones de servicio de la Iglesia y segundo: una falta de vigilancia de lo que esas personas -por su posición distinta del resto de feligreses, en cuanto al acceso y conocimiento del manejo de los lugares, ornamentos y demás objetos y disposiciones necesarias para las distintas celebraciones-, estaban obligadas a realizar dentro de ese marco, lo que provocó que se cometieran hechos sexuales abusivos en perjuicio de la menor, dentro del templo, en un recinto al que no todas las personas tienen común o fácil acceso, hecho cometido por un feligrés que desempeñaba un cargo especial, por delegación y en perjuicio de una niña que también iniciaba labores como pequeña laica comprometida, es decir, dos personas seleccionadas por el máximo representante local de la Iglesia y en desempeño de sus funciones propias en la Iglesia. El dolo con el que actuó el imputado se encuentra demostrado y, como la norma contiene una inversión de la carga de la prueba, la única forma de que se excluya la responsabilidad es demostrando que esa acción no se hubiere podido evitar con todo y la debida diligencia de vigilar o elegir, lo cual a lo largo del contradictorio y ni siquiera con la prueba recibida en esta sede, pudo establecerse. Se tuvo por cierto, eso sí, que al delegar funciones el sacerdote, representante de la Iglesia, no se seleccionó (eligendo) ni controló (vigilando) adecuadamente y por parte de los encargados, las tareas encomendadas al imputado. Esas tareas desde luego no autorizaban ni incluían el abuso sexual a los menores, pero se dieron precisamente por las condiciones dadas y la oportunidad de relación gracias al desempeño de tales funciones, incluso echando mano de la autoridad moral que las mismas les daban y la posición de autoridad frente a una persona vulnerable, como un menor de edad que daba sus primeros pasos al servicio, precisamente, de la Iglesia. La paradoja es precisamente que víctima y victimario estaban en tal condición, por la escogencia que de ellos había hecho un miembro de la estructura de la Iglesia, Arquidiócesis de San José, lo que hace aún más clara la atribución del daño ocasionado, al patrimonio de quien se erige como cabeza jurídica y patrimonialmente hablando, de tal organización, en este caso, las Temporalidades de la Iglesia. (…) No solamente al artículo 1048.3 del Código Civil sustenta esta responsabilidad civil solidaria pues une estrechamente la culpa in vigilando de la in eligendo, sino también el artículo 106 inciso 3 del Código Penal cuando dispone: “Es solidaria la acción de los partícipes de un hecho punible, en cuanto a la responsabilidad civil. Están igualmente obligados solidariamente con los autores del hecho punible, al pago de los daños y perjuicios: …Las personas naturales y jurídicas dueñas de establecimientos de cualquier naturaleza, en que se cometiere un hecho punible por parte de sus administradores, dependientes y demás trabajadores a sus servicio”, disposición en la que indudablemente y con mucha más razón se encuentra incluida la Iglesia, no sólo por esa relación que existe entre la Iglesia como persona jurídica y un dependiente que actúa en su servicio, como resulta ser la figura del Ministro de la Comunión, sino porque en el orden catequístico, priva y tiene un peso específico la confianza que se deposita en todos sus personeros, la sociedad, de allí que la fundamentación que dio el Tribunal para declarar con lugar la acción civil resarcitoria, no sólo se encuentra acorde con la legislación que regula la responsabilidad civil extracontractual, sino que además, de acuerdo a las consideraciones expuestas, la Iglesia es una entidad que debe responder civilmente, por lo que la excepción de falta de legitimación ad causam pasiva no podía prosperar.» (Algunos de los destacados son suplidos; otros inherentes al texto original). De todo el panorama supra descrito se extrae, entonces, que cuando la sentencia de mérito analiza indicios como: (i) la función que tenía el encartado producto de la que se dio el contacto con el ofendido (presbítero, párroco, en cuyo ejercicio funcional proveía el cuidado de su feligresía, incluido el afectado); (ii) el sitio en que se dieron los hechos (casa cural); (iii) el marco de labores desplegadas por el quejoso (asignadas por el encartado como parte de la retribución por la ayuda suministrada por su representada); (iv) el vínculo entre el sacerdote y el obispo y la demandada civil y la obligación de estas de nombrar a aquel con base en la idoneidad propia del cargo y velar porque lo desempeñara del mismo modo y (v) el ligamen jurídico que, inclusive, en planillas de la C.C.S.S. se describe entre la demandada civil solidaria y el encartado, no hace sino escrutar esa relación subyacente que daba origen a la obligación de indemnizar. Nótese que este último aspecto es un indicio más, no el único ni pretende, como parece entenderlo quien recurre, fijar una relación laboral, sino solo un vínculo jurídico de dependencia. En ese ejercicio esta cámara no nota ninguna irregularidad, ni fáctica o de derivación probatoria ni de encuadre jurídico o indebida aplicación normativa. Por ello, sí se demostró el vínculo entre la demandada civil solidaria y el encartado y entre este y el afectado; se acreditó el hecho dañoso y la obligación de indemnizar nace de las normas inicialmente citadas que estipulan, en el jerarca, la obligación de escoger y velar por la fiel ejecución de lo mandado. Es decir, se alude a una culpa in eligiendo o in vigilando (que sí es culpa, aunque por hecho de tercero, por lo que no aplica el voto 48-2008 de la Sala Primera citado por quien recurre), aunque el a quo refiriera, parcialmente, otra cosa, de modo que es innecesario aludir a temas de responsabilidad objetiva, a temas de riesgo o lucro. Por todo lo expuesto, al no notarse vicio alguno en lo decidido, deben rechazarse los alegatos.

POR TANTO:

(1) Se declaran sin lugar los recursos de apelación interpuestos por el presbítero [Nombre 012] apoderado de Temporalidades de la Arquidiócesis de San José y por el licenciado Fernando Arias Zúñiga, en calidad de defensor público del sindicado. (2) De oficio, se revoca la sentencia condenatoria dictada contra [Nombre 001] por dos delitos de abuso sexual simple contra persona menor de edad en perjuicio de [Nombre 005]. por los que se le impuso la pena total de seis años de prisión (tres por cada ilícito) y, en su lugar, se decreta la absolutoria por extinción de la acción penal por prescripción, dejándose sin efecto la citada sanción. (3) Se declara parcialmente con lugar la apelación incoada por la licenciada Claudia Villafuerte Orellana, en representación del Ministerio Público. En consecuencia, se anula parcialmente la sentencia impugnada sobre el hecho acreditado durante 2013 en perjuicio de [Nombre 003]. únicamente en cuanto a la calificación legal y la pena y, sobre ambos extremos, se ordena el reenvío para que el tribunal determine si se está ante abuso sexual contra persona mayor de edad simple o agravado y el monto sancionatorio correspondiente. En lo demás (la determinación del hecho en perjuicio de [Nombre 003]., la declaratoria de responsabilidad civil, las medidas cautelares y costas), se rechaza el recurso fiscal y permanece incólume la sentencia.

NOTIFÍQUESE.

Rosaura Chinchilla Calderón Patricia Vargas González Kathya Jiménez Fernández Juezas de apelación de sentencia penal Imputado: [Nombre 001] Ofendido: Personas mayores de edad Delito: Violación y otro LQUIROSG