Conviction upheld for aggravated major fraud, fraudulent administration, and other financial crimesConfirman condena por estafa mayor, administración fraudulenta y otros delitos financieros

**Review of the Document** *040053740647PE* Res: 2009-00870 THIRD CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at fourteen hours and twenty minutes on the ninth of July, two thousand nine.

Appeal on cassation (Recurso de casación), filed in the present case against C, […] for the crimes of Aggravated Major Fraud (Estafa Mayor Agravada) to the detriment of NIGHT GLOW S. A.; Fraudulent Administration (Administración Fraudulenta) and Use of Privileged Information (Uso de Información Privilegiada) to the detriment of BANCO ELCA S.A.; Supply of False Banking Information (Suministro De Información Bancaria Falsa), Illegal Financial Intermediation (Intermediación Financiera Ilegal) and Authorization of Improper Acts (Autorización de Actos Indebidos) to the detriment of the NATIONAL BANKING SYSTEM (SISTEMA BANCARIO NACIONAL); against J, […], for the crime of Fraudulent Administration (Administración Fraudulenta) to the detriment of BANCO ELCA S.A. and against E. for the crimes of Complicity in Fraudulent Administration and Use of Privileged Information to the detriment of BANCO ELCA S.A. Participating in the decision on the appeal are the Magistrates José Manuel Arroyo Gutiérrez, President, Jesús Alberto Ramírez Quirós, Alfonso Chaves Ramírez, Magda Pereira Villalobos and María Elena Gómez Cortés, the latter in her capacity as Substitute Magistrate. Also participating in this instance are the licensed attorneys Juan Carlos Sbravatti Montoya, Gonzalo Elizondo Freddy, Elizabeth Montero Mena, Odilia Arrieta, in their capacities as defense counsel for the accused. Night Glow S.A., represented by J. and attorneys Luis Lechtman Meltzer and Gustavo Adolfo Corella, appears as complainant and civil plaintiff. The representative of the Public Prosecutor's Office appeared.

**Resultando:**

1.- By means of judgment No. 165-2008, issued at fourteen hours on April thirtieth, two thousand eight, the Trial Court of the Second Judicial Circuit of San José, resolved: "POR TANTO: In accordance with the provisions established in Articles 24, 39 and 41 of the Political Constitution; Inter-American Convention on Private International Law (Bustamante Code); Vienna Convention on Consular Relations; Article 26 of the Law on registration, seizure, examination of private documents and intervention of communications; Article 1 of the Organic Law of the Ministry of Foreign Affairs and Worship; Articles 66 and 67 of the Organic Law of the Foreign Service; Articles 4, 12, 41, 47 and 66 of the Organic Law of the Consular Service; numerals 14, 32 final paragraph and 34 subsection k of the Organic Law of the Notariate; numerals 1, 18 to 23, 30, 31, 45, 47, 50, 51, 71 to 77, 103, 106, 109, 216, 222, 239, 240, 241, 245 of the Penal Code; Articles 115 to 117, 120, 141-142, 147, 156-157 subsection b, 159 and 175 of the Organic Law of the Central Bank of Costa Rica; rules in force of the 1941 Penal Code on civil liability according to Law No. 4981; Articles 1, 9, 30 subsection a), 31, 175 to 179, 182, 184, 209, 238 to 243, 253-254, 257-258, 265 to 270, 311 subsection d), 324 to 372 and 376 to 379 of the Code of Criminal Procedure; Articles 20 to 22, 868, 871, 1045 and 1163 of the Civil Code; numerals 2 and 35 of the Law for the Promotion and Effective Defense of the Consumer No. 7472; Articles 419, 497, 529, 670, 984 of the Commercial Code; Articles 17, 40, 41 and 44 of the decree on attorney fees No. 20307-J and transitional provision I of the fee schedule for professional legal and notarial services No. 32493-J, unanimously on all operative points: (i) The objection raised by the defense of C. regarding the lack of formal requirements of the complaint and the lack of active legal standing of the complainant is rejected; (ii) The defective procedural activity raised by the defense of C. against the legality of the evidence contained in file No. 91 is rejected; (iii) The argument of the defense of J. regarding the illegitimacy of the documents on pages 15846 to 15909 of main volume XXVI referring to account statements of Inversiones 3000 S.A. and Grupo Prisma Asem S.A. provided by the defense of C. is accepted, and, consequently, said documents and everything derived from them (e.g., witness references) are suppressed; (iv) A DEFINITIVE DISMISSAL (SOBRESEIMIENTO DEFINITIVO) DUE TO EXTINCTION OF THE CRIMINAL ACTION by death is issued, in favor of E. for the crimes of COMPLICITY IN FRAUDULENT ADMINISTRATION and USE OF PRIVILEGED INFORMATION that, to the detriment of BANCO ELCA S.A., have been attributed to him, resolving without special award of costs in both areas of the proceeding; (v) By virtue of the principle in dubio pro reo, J. is ACQUITTED of all penalty and responsibility for the crime of FRAUDULENT ADMINISTRATION (ADMINISTRACIÓN FRAUDULENTA) that, to the detriment of BANCO ELCA S.A., has been attributed to him, resolving without special award of procedural and personal costs of the prosecutorial accusation. (vi) C. is declared CRIMINALLY LIABLE (AUTOR RESPONSABLE) for the crimes of AGGRAVATED MAJOR FRAUD to the detriment of NIGHT GLOW S.A. represented by M. (cc. R.) and J; FRAUDULENT ADMINISTRATION OF GREATER AMOUNT (ADMINISTRACIÓN FRAUDULENTA DE MAYOR CUANTÍA) and USE OF PRIVILEGED INFORMATION both to the detriment of BANCO ELCA S.A. and the crime of SUPPLY OF FALSE BANKING INFORMATION (SUMINISTRO DE INFORMACIÓN BANCARIA FALSA) to the detriment of the NATIONAL BANKING SYSTEM all in material concurrence and, in said condition, the following penalties are imposed: for the first crime EIGHT YEARS OF PRISON; for the second crime EIGHT YEARS OF PRISON; for the third crime THREE YEARS OF PRISON and for the fourth crime FOUR YEARS OF PRISON, for a total of TWENTY-THREE YEARS OF PRISON that he must effectively serve in the respective penitentiary center, as determined by the regulations then in force and after credit for the pretrial detention he has completed; (vii) The defenses of lack of active and passive legal standing, lack of cause, lis pendens, incomplete necessary passive joinder of parties and the generic sine actione agit are declared without merit, and the defense of lack of right is partially granted, all interposed by the Liquidation Board of the Bankruptcy (Quiebra) of Banco Elca and by the civil defense of C. against the civil action for damages (demanda civil resarcitoria) filed against them by Night Glow S.A.; (viii) The civil action for damages filed by NIGHT GLOW S.A. against C. and the BANKRUPTCY OF BANCO ELCA (QUIEBRA DEL BANCO ELCA) is declared PARTIALLY GRANTED, and they are jointly and severally ordered to pay, in favor of the former, the following items and amounts: a)- for material damage the sum of three million dollars of the United States of America; b)- for lost profits (lucro cesante) consisting of interest at the civil legal rate (certificates of deposit in dollars at six months term of Banco Nacional) on the cited sum from September seventeenth, two thousand three to July fifth, two thousand five and from November ninth, two thousand five to April twenty-second, two thousand eight, equivalent to five hundred seventy-nine thousand two hundred fourteen dollars of the United States of America and fifty-three cents, for a total of three million five hundred seventy-nine thousand two hundred fourteen dollars of the United States of America and fifty-three cents, an amount from which the two hundred fifty thousand dollars paid through settlements with other co-defendants for these same facts must be subtracted, leaving an uncovered amount pending payment of three million three hundred twenty-nine thousand two hundred fourteen dollars of the United States of America and fifty-three cents, which is the amount on which costs will be calculated; c)- the procedural and personal costs of the civil action for damages, whose professional fees are liquidated in the sum of ninety-eight million two hundred ninety-six thousand six hundred fifty colones and seventeen cents. (ix) The defense of prescription of interest raised by the Liquidation Board of the Bankruptcy of Banco Elca S.A. and by the civil defense of C. is declared without merit. (x) The procedural and personal costs of the complaint and the criminal proceeding are the responsibility of the convicted defendant insofar as he is concerned, setting the professional fees of the complaint in the sum of thirty thousand colones. (xi) The precautionary measures decreed against J. are lifted from this moment and, consequently, it is ordered to immediately communicate to the General Directorate of Migration and Aliens the lifting of the prohibition on leaving the country; his passport shall be returned personally to Mr. J. and the mortgage encumbering the property of Partido de San José, registration number […], must be cancelled. (xii) The precautionary measures decreed against the accused C. are REVOKED and, due to the existence of flight risk given the high penalty imposed and the economic power and international contacts that the accused has, which is evidenced by the number of bank accounts and anonymous corporations that have been proven he has managed as sole shareholder without appearing directly as their representative, all of which would facilitate his having resources to leave the country illegally and remain abroad in order to not face the consequences of his acts established here and indicated with a high prison sentence, PRETRIAL DETENTION (PRISIÓN PREVENTIVA) is ordered for a term of EIGHT MONTHS to run from this date and until DECEMBER THIRTIETH, TWO THOUSAND EIGHT or, in its absence, from when the capture is executed. Consequently, once the accused is detained, the prohibition on leaving the country that weighs against him will be lifted by means of a communication that will be made to the General Directorate of Migration and Aliens, his passport will be delivered to the person authorized by him through an authenticated document, the money deposited will be returned to the guarantor, and the mortgage encumbering the property of Partido de San José, registration number […] in the name of Cerros de Carrillo S.A., will be lifted. (xiii) Once this judgment becomes final, the three investment certificates in Elca International Bank and Trust and their respective interest coupons (No. 100-1008-02 and coupons 100-1008-02-1, 100-1008-02-2, 100-1008-02-3; No. 100-1009-02 and coupons 100-1009-02-1, 100-1009-02-2, 100-1009-02-3 and 100-1009-02-4 and No. 100-1010-02 and coupons 100-1010-02-1, 100-1010-02-2, 100-1010-02-3, 100-1010-02-4 and 100-1010-02-5) will be delivered to the legal representative of Night Glow S.A., making the express warning on the back of each of the cited documents that the obligation represented therein has been declared chargeable to the joint and several assets of the Bankruptcy of Banco Elca S.A. and C. through this judgment. (xiv) Once this judgment becomes final, the corresponding communications will be issued to the Judicial Registry, the Sentence Enforcement Court (Juzgado de Ejecución de la Pena) and the National Institute of Criminology, and the sentence calculation order (auto de liquidación de pena) will be issued. NOTIFY by reading. Ileana Méndez Sandí, Edwin Salinas Durán, Rosaura Chinchilla Calderón." (sic).

2.- Against the previous ruling, licensed attorney Gonzalo Elizondo Breddy, in his capacity as co-defense counsel for the accused C., filed an appeal on cassation. Licensed attorney Juan Carlos Sabravatti Montoya, in his capacity as defense counsel for the accused C., filed an appeal on cassation. The accused C. filed an appeal on cassation. Licensed attorneys Manuel Eduardo Campos García and Leonardo Antonio Madrigal Moraga, in their capacity as special judicial representatives of the Civil defendant, the Bankruptcy of Banco Elca S.A., filed appeals on cassation.

3- A public oral hearing was held at eight hours forty minutes on January twentieth, two thousand nine.

3.- Having carried out the respective deliberation, the Chamber considered the questions formulated in the appeal.

4.- The pertinent legal requirements have been observed in the proceedings; and, **Considering:** I.- The defense counsel for C. filed an appeal on cassation against judgment # 165, issued by the Criminal Court of the Second Judicial Circuit of San José, at 14:00 hours on April 30, 2008, in which that accused was declared criminally liable (autor responsable) for a crime of aggravated major fraud, one of fraudulent administration and use of privileged information, to the detriment of Banco Elca, a corporation; and a supply of false banking information, illegal financial intermediation and authorization of improper acts, to the damage of the national banking system. As a result, a total of twenty-three years of prison was imposed on him. In the first ground of the appeal, the defense counsel alleges the lack of authenticity of an essential piece of evidence, which was a letter addressed to Mr. Arnoldo André Tinoco, signed by the Head of the Finance Department of the Supervision Sector of the Bank of Belize, Mrs. N. Said document, the complainant states, was not presented to the Ministry of Foreign Affairs of that country, but to its embassy in Guatemala. There, what was done was to certify that it was a true copy of its original, but not to verify what position the signatory holds nor that the signature appearing is hers. The claim continues by stating that there should have been a "chain of authentications" and about verifying the value of those documents. Given that this document was used to hold it as demonstrated that the unrestricted Class A offshore license was granted to Elca International Bank and Trust Limited, Article 182 of the Code of Criminal Procedure and Article 39 of the Political Constitution were violated. In conclusion, it points out, "the suitable evidence to demonstrate that the money could have been diverted is the certification that those funds were not deposited in EITB-Belize, and that evidence was not collected in the investigation. Banks have many paths, and many operating accounts to circulate monetary transfers from one place to another." The claim is not tenable. It must be established from the outset that, just because a document does not comply with all consular procedures, it does not lose all value. Even so, it does not cease to be a document that, without being a certification, provides an element for assessment. However, that is a matter that has no greater relevance in this case. From now on, it must be clear that dispensing with a piece of evidence implies that the fact or facts that were held as demonstrated taking it into account must be considered unsubstantiated, because if, hypothetically suppressing it, there are other factors of conviction that support such conclusions, the matter will lack procedural interest. This must be noted because, as will be seen throughout this judgment, the argument that, because a piece of evidence is not lawful or conclusive, or because it does not comply with certain formalities foreign to criminal law or the events investigated here, certain facts must be considered unsubstantiated, will be insistent. Returning to the ground in question, it must be said that, as the defense counsel himself acknowledges, this alleged defect was not timely objected to by the interested parties. However, it must be reiterated, the matter is of no greater interest, given that, with this evidence or without it, the fact is that there are abundant elements to hold it as certain that the offshore division of Banco Elca did not have permission to operate in the Republic of Belize when A. began to offer it as a destination for attractive investments (it paid higher interest than in Costa Rica), a reason why Mr. M. decided to invest three million United States dollars (hereinafter simply "dollars") there, which were delivered to the accused and never reached their destination nor were they returned to him. So much so that, to categorically elucidate the doubts raised by the defense counsel about the availability of pertinent evidence, it is convenient to transcribe in extenso the exposition made in this regard by the a quo. "Likewise, J. emphatically stated that Banco Elca did not have an offshore bank, although since he joined the bank, in 2000, he heard that efforts were being made to create one in Belize, which was the responsibility of J, adding '...that was a taboo subject at the bank, it was not advisable to talk about it at the bank. J. told the bank executives not to mention that they had an offshore bank, the national financial environment had options of banks that did have one and we did not, which took away our competitiveness, it was not allowed to say that we were doing it. Don J. sometimes asks me for staff and sometimes without my permission he took them to go to Belize. Elca International Bank was what the offshore was going to be called. All of a sudden the financial manager of the bank told me, I don't know if four or seven million dollars, that were in the bank, in certificates, they cancelled them, that's what R. or W. told me and they took the money to Belize and that caused problems because the deposit portfolio decreased (...) I never physically saw an investment certificate from Elca International Bank (...) B. was the acting business manager, he called me saying that J had arrived, who told him to sign an investment certificate from Elca International Bank, he told me and I told him how could he think of signing that if he did not work for that bank, I did not physically see the document but he told me and was very worried. I never knew that the bank was authorized to carry out operations, I believe it was never authorized.' a version that was supported by M. who added 'I know that an offshore branch was being set up in Belize, Elca International Bank, but I understand that it was not operating, I found out about this from a Mr. J. who had problems with a certificate from that bank and that I had signed at the request of Don H, he went as far as Belize and could not exchange it, he told me that bank did not exist (...) Don J. came looking for me at Banco Cuscatlán, when I signed the certificate Don J. told me that the offshore bank was a clone of Elca Costa Rica, that those authorized here were going to sign there as well, that he was looking for me because Don H. and Don C. were not there. (...) I was Don H.'s assistant but he had no relationship with the offshore, it was Don J. who managed everything related to the offshore, I did not know any staff from the offshore, I do not know if I signed another document, this one I am clear about because the gentleman came looking for me and I saw it, I don't know where the document was issued (...) when I signed the certificates for Mr. P. it was normal to sign various documents, one was based on trust, it was not so common to sign investment certificates...'. This statement is credible although it is denied that H. had a relationship with the offshore bank in Belize, an aspect that contrasts, in part, with what the same G. indicated and with the documents signed, in the name of Elca International Bank and Trust Limited, by F. and G, to pay C. (pages 6884 of main volume XV and 7367 to 7371 of main volume XVI which are, in turn, certified copies of evidence files 21 and 25, respectively, documentation seized at J.'s house) but this point lacks relevance for what is being adjudicated here. Regarding this, Don H, general manager of Banco Elca S.A., indicated: 'J, deputy manager and I, in private, told Don C. our concerns (...) we did not like lending the bank's platform (...) we told him that regarding the Belize investment, neither Don J. nor any of the administrative officials had any involvement in the bank in Belize (...) a warning was made that the Belize bank was not the same as Elca despite the fact that J. had repeatedly told him that it could not operate and that Don C. offered it (...) Don J. (...) was entrusted with the opening of a bank license in Belize, it was the only bank without an offshore bank. The decision was made to incorporate it, but it was not part of the Corporation even though the shareholders, natural persons, were quite common (...) The administration did not like that offshore matters were handled at Elca if they were not related and that is why F.'s office was moved to an office in La Sabana. The offshore bank was incorporated and obtained its operating license around 2002 but for raising funds it obtained it at a date after the fund-raising operations were carried out (...) Despite the fact that it could not raise funds and of the warnings from me and J, the possibility of carrying out these investments was offered not only to G. but to other people and that was done directly by Don C. because I did not allow things to get confused and J. became angry when in a meeting at the bank this was offered to a client. J. was very reserved regarding Belize matters and as far as I know he did not make offers nor did I or any bank official make any (...) Offers for investments in the bank in Belize were made at the Elca facilities but were not offered by the corporation, the administration did not agree but we could not silence Don C, the person who offered that was Don C, he attended to very important clients and was in charge of attending to clients of a certain magnitude. (...) I can attest that the facilities were used to offer the international bank, I heard Don C. make the offers and Don J. scold Don C. because the investor was confused because it was offered as if a bank that was not part of the corporation was part of it and this was not told to the investor. We were worried that Don C. would assign a bank officer to give them information and she (M. for example) had no idea what they were talking about and that's why J. came on the scene. I find two or three other clients who invested in the bank in Belize (...) The license as a bank existed but not the license to raise funds and before that offers were indeed made, not because I heard them but because I found out, one of those is that of C. (...) Don C. openly offered the bank of belize (sic) and J. was like a tomb (...) the creation of the Bank of belize (sic) was not an agreement of the Board of Directors of Elca, it was from Don C. and his partners (...) Don C. was obviously warned that the bank was not authorized to operate (...) as well as not to mix Belize operations or Elca officials in that type of transactions (...) In Elca International Bank and Trust Limited I do not remember if at the request of J. I signed something for KPMG (...) I have never been to Belize'. But the matter also came to the attention of SUGEF because Mrs. C, Director General of Private Banks of that entity, stated: 'In August 2002, Mr. B.A., former superintendent, received an anonymous email informing that Elca had an entity domiciled abroad. They indicated that the Central Bank of Belize had authorized a banking license but they were formalizing, follow-up was given and in September 2003 Don C. reported that the Board of Directors had agreed that the company was not going to be part of the financial group. We were very clear that said entity had to be part of the group and that they had to request authorization for the offshore and incorporate it into the financial group, hence the report. He said that they were going to be outside Corporación Elca and I was told that Elca Bank & Trust or something similar and he was told that they should proceed to eliminate the name Elca so as not to create confusion among the public. In October we gave a response to J. indicating that they will not carry out intermediation operations in Costa Rica and that they had reserved the new name of the bank that did not include the name Elca. I do not know if the bank entered into operation. I know H (...) I do not know if he had a relationship with the offshore bank. An offshore entity operates outside the country, the local bank of an offshore group can provide certain services to an entity domiciled abroad provided it is part of the financial group and there is a contract regulating that situation. There is no possibility of raising investments if it is not part of a Costa Rican financial group, it is only a transfer of funds at the account and risk of whoever does it (...) I do not know if the Board of Directors of Elca approved that offshore nor did they inform me. The definitive name of the bank in Belize was Interbank and Trust, I do not know if it operated', a statement that finds support in what was established by the official communication on page 4413 (main volume X) signed by S. and addressed to C, as legal representative of Corporación Elca Internacional, on February 17, 2003 and received by the general management on that same date. Therein, A. is reminded that since December 18, 2002 'this Superintendency requested information about the current status of the steps that Financial Group is taking to obtain a license to operate an offshore bank in Belize and the date on which they expect to begin procedures before SUGEF for the acceptance of said location, prior to the request to incorporate said entity into the Financial Group, without it having been answered to date', which agrees with the reference made by the principal comptroller M. when saying: 'I did not participate in the period prior to the intervention but it was commented to us that the group had requested to establish an offshore in Belize and that it had reached an agreement not to include it in the financial group and the steps were carried out by Don J. People appeared saying that they had intervened in the bank or through the bank, Carabetta with Inversiones Savinelli and Cori Consulting appeared saying that, that they had carried out steps at the bank but not necessarily at the offshore.' That the offering of the titles of Elca International Bank and Trust Limited was done to various people finds evidentiary support in the documents on pages 1064 to 1071 of volume III. There is a copy of a note (with received stamp of Banco Elca, General Management and addressed to the General Manager of Banco Elca) dated October 1, 2002 in which the representative of Cori Consulting and Financial Services S.A. delivers to Banco Elca the originals of the interest coupons of Elca International Bank and Trust Limited for custody and so that on the maturity date they be exchanged and deposited "free of national bank commissions". There is no document that determines that H. formally was part of the representatives of Elca International Bank and Trust Limited so, the fact that this correspondence was sent to him and that he was aware of those operations, denotes that the offshore operations in Belize were considered as another service of the Costa Rican Banco Elca S.A. because, otherwise, how can it be explained that this note is sent to the General Manager of this institution? Would it be sent in the same way to another General Management of any other bank? Obviously not, but only from related institutions or those that provided the service referred to there. It should be noted that according to the document on page 42 of volume I issued by the Central Bank of Belize, it is exactly on October 1, 2002 that the bank has permission to operate as an offshore (without yet having a license to raise funds, which they would achieve until early 2004) and by then not only had other certificates and their interest coupons been issued but they were close to their maturity date. Likewise, in volume XV (documentation seized at J.'s house) there is a certified copy of evidence file No. 19 containing copies of certificates issued by Elca International Bank and Trust Limited, with the same format as the one presented by the complainants, signed now by J, now by him and C. and issued starting February 2003 in the name of entities such as F. y Rosados S.A. or Olga Rozados Pazos, Arjuna Limited, Veda Inc., Nirvana Inc., Jiva Inc., Rank Inc., Deva Inc., Sage Inc., Sahara Inc., Valley International Inc. and Top-co. Inc. (see pages 6608 to 6612 to 6623) without forgetting the documents that, in the same sense, Bolívar was asked to sign in favor of Mr. Penón according to what that witness stated. Of course, the matter was known to the person in charge of creating that branch, J, who said that "he (C.) offered it (referring to Elca International Bank and Trust Limited) like offering confetti on Central Avenue, I clearly told him it could not be done, but he put the entire corporation at its service, like a package." moreover in some correspondence issued by F.

it is clear that there was an initial interest in the Bank being part of the Elca de Costa Rica Financial Group and that if this could not be achieved it was due to the interventions of the authorities of the respective countries, such as SUGEF in Costa Rica (through the mechanism mentioned above and described by Ms. C. ) or due to opposition from the Central Bank of Belize to requests from U.S. authorities. Thus, in main volume XV there is a certified copy of the evidentiary file No. 21 (documentation seized at the house of J. according to seizure record 362112 of July 22, 2004, visible at folio 573 of main volume II) and on folios 7290 to 7292 there is a copy of a memorandum addressed by J. (representative of Cori Consulting and Financial S.A.) in which F. indicates to Tinoco that the Bank in Belize begins operations on January 16, 2004, and that it could not be put into operation earlier because the United States began to ‘...require from offshore centers their collaboration so that in cases where there exist related banking operations (parallel banking structures) (by management or affinity of their shareholders) with other financial districts (Case of the Elca-SUGEF Financial Group) criteria of uniformity should be promoted so that a single regulator controls two or more groups/banks...’ and adds that the new license is in the name of Interbank and Trust Limited and was not objected to by SUGEF as long as it was an international bank and that it was not included in the Elca Financial Group. That is, the name change not only was due to the recommendation of SUGEF given the confusion produced among investors (and this Court adds, no longer just because of the similar name "Corporación Elca Internacional"/"Elca International Bank..." and the almost identical logos but because of the common use of facilities, personnel, and even the attempt -halted by SUGEF- to include the expenses of one in the financial statements of the other entity) but also to the variation of having it no longer as an offshore of the national bank but as an international bank. Even this last aspect was referred to differently by C. in his investigative statement. While in the debate he indicated that ‘The offshore bank is developed as an alternative for competitiveness, it was to manage it as a foreign bank, it is not really an offshore but an international bank managed abroad’ thus incurring a true lapse by recognizing, initially, that it was an offshore branch (that is, part of Banco Elca S.A.) and then, aware of what he had just said, clarifying that it was not such a thing but an international bank, in his previous investigative statement (folios 4043 to 4089, especially folios 4088 ff. of volume X, admissible for assessment under the terms established in numeral 343, third paragraph, of the Criminal Procedure Code) he refers to the Belize bank as the "offshore bank" and that G.'s investments in Banco Elca were of very large sums, which implies his acceptance that this business was conceived as if it were an investment in the national group and one more service of Banco Elca S.A.. Here the defendant mentions a possible investment at the Guatemala meeting but hides that, at that time, it had already taken place. From this set of evidentiary elements -whose statements were clear, precise, and correctly withstood cross-examination, without the court having any element to doubt its credibility since their statements are correlated among themselves and with other evidentiary elements, all reasons for which they merit, in general, absolute credibility except when expressly indicated otherwise, in which case the reason was explained- it can be concluded, then, with absolute certainty, that the defendant C. sought to create an offshore bank in Belize and offered it -even without having a capturing license there nor being integrated in Costa Rica into the economic group- as part of the services that Banco Elca would provide since his bank was one of the few, in the national market, that lacked that service, which reduced its competitiveness. Although later, in response to SUGEF's requirements and complications in the process in Belize, Elca International Bank and Trust of Belice changes its name to Interbank and Trust Limited and it is established that it will be an international bank separate from the Elca Economic Group, both due to the initial conception and the practical way in which A. handled the matter (expenses of that bank were attempted to be introduced into the financial statements of Banco Elca S.A., A. offered it as a service of said bank, the same name and logo were used, there was confusion of personnel and tasks since officials from Costa Rica were seen as if they were those of Belize, Costa Rican facilities were used for functions of the supposed Bank of Belize to the point that G. states not having traveled to Belize on those dates despite which he subscribes documents on behalf of Elca International Bank and Trust of Belice changes its name to Interbank and Trust Limited, etc.), said bank was always offered as one more service of the Elca financial group and, specifically, of Banco Elca S.A. and it was so much so that its officials were authorized or sent to go to Belize to provide computer or compliance officer services, national facilities were used, it was offered publicly to clients and other members of the Financial Group, and employees of Banco Elca S.A. were even told that it was going to be a clone of the national one and that those who were authorized to sign here could do so there” (folios 17228-17235). In conclusion, as stated, there is abundant evidence that the offshore banking service offered by A. to Mr. G. (among other persons) was not operational at that time, but was part of a deception used to make them transfer money for alleged investments that never came to be such, but rather were diverted funds, as will be explained below.

II.- In the second claim, it is said that the proven facts XV and XVI, which refer to the receipt of Mr. G.'s money (to be invested in the name of the corporation Night Glow) by the defendant and its deposit in account No. 6096-1 of Transamerica Bank Trust Co., belonging to a company controlled by A., the corporation Bosques de Ayarco BA, are supported solely by the testimony of H. This witness, says the appellant, was the object of a complaint by the offended company, but they settled for the sum of one hundred thousand dollars and his word to testify in this case. This should have been considered, as well as that the check is dated May 31, 2002, and the memorandum to dispose of the funds, June 6 following, which would have led to discarding his version that he had had to call A. to ask for instructions. It was clear, says the defender, that G. could disobey A.. Subsequently, it discusses the interests that the offended parties may have had in a conviction of the defendant and the role that this witness and J. may have had in that plan. He adds that the bank was not a “kindergarten”, where A. gave orders and the others obeyed blindly. The reproach is not admissible. The fact that G. had settled for a sum much lower than that demanded by the offended company, or that he showed some level of discomfort at having been involved in these events, is not a sufficient reason to deny credibility to his statement. National jurisprudence has repeatedly stated that the credibility of a piece of evidence lies in its own coherence and verisimilitude, as well as in its contrast with the others. Not from speculation about the motives someone has for saying one thing or another. In this case, there is no indication whatsoever that G. did not tell the truth, so in the absence of valid arguments the defender speculates about his disposition towards A. and the benefit that others may have obtained from it. Thus, with these suspicions, there is no reason to call into question the statement of that declarant. This evidence, furthermore, is shown to be consistent with the rest of what was stated by the bank personnel who appeared in the debate, who unanimously said that the one who commanded in it was its owner and president, A.. He was the one who commanded, and this is testified to throughout the evidentiary synopsis, rendering a specific reference to it useless, as it is a fact present in all the testimonies adduced. In such a way that, then, it is reasonable that although G. at times had different criteria than A., it was the latter who made the provisions and decisions regarding relevant aspects, such as precisely the receipt of three million dollars, received to invest in an offshore service that he had offered but that was not operational. Besides, as witness J. said: “I think I could oppose C.'s orders but if I did so, being an employee, he would fire me.” Finally, it is not seen what the relevance is that the received check had a stated date and the memorandum on the destination of the funds was another, because for whatever reason A. was not in the place, and had to be located by telephone, receiving the pertinent instructions from him (folio 17089). In summary, it is not demonstrated that G. has failed to tell the truth and, through that path, that the proven facts XV and XVI are unsustainable. The ground is dismissed.

III.- In the third ground, it is said that J.'s situation is similar to that of H. and that, surprisingly, the Court admitted as evidence some certificates that during his statement he took from his pants pockets. The defender says that said evidence is illegal, for not having used handwriting analysis evidence to establish the authenticity of the signature on those titles, that F. has a particular interest in the resolution of the case, that they refer to a fact not judged “and that is related to the Cori Consulting case”, that Article 29 of the Law on Registration, Seizure and Examination of Private Documents was misinterpreted, by making use of emails sent by the accused to F. without the consent of their author. Finally, he returns to the point of the role that both F. and G. played as witnesses interested in the matter and useful for the civil plaintiff. The ground is not admissible. As stated above, the personal reasons that each of the witnesses may have are unimportant, unless they affect the credibility of the evidence. This has not been compromised, far from it, by the content of their depositions, nor the manner of testifying of the aforementioned F. and H. It is understandable that the defense resents that, to their surprise, in the debate the certificates appeared of the money that A. had received from Night Glow corporation, since this documented that the defendant indeed had received such sums under the pretense that they were to invest in an offshore bank in Belize. Definitely, that constituted a factor that affected the defense's strategy, which consisted, among other things, of denying that things had happened that way. But from there to it being illegal evidence, there is no identity. As correctly stated by the lower court, the principle of freedom of evidence allows relevant circumstances to be proven by any lawfully obtained means. So, there being no unlawfulness in that it was during the trial that (as a truly novel circumstance that it is) the declarant F. took out said documents and made them available to the lower court and the parties (which were able to examine them and, if applicable, contradict them), these could be fully taken into account as evidence in the judgment. That those documents or an action of F.'s are being examined in another case, does not prevent that, for the purposes of resolving the present one, they be weighed by the judges. Nor did the lack of handwriting analysis evidence to verify that the signature appearing on the titles was A.'s prevent this, since there is no indication whatsoever to suppose that the signature appearing there is not that of the defendant. On the contrary, F.'s statement is emphatic that the signatures are his and A.'s (folio 17050), which is consistent with the persistent and irresponsible involvement that A. had with the intended offshore bank project in Belize, which has been extensively cited. Even more, in the email whose incorporation the defender reproaches, A. himself acknowledges that it is his signature. Finally, reference must be made to the litigant's allegation about the violation of the defendant's privacy and the Law on Registration, Seizure and Examination of Private Documents, which is also not admissible, because F. being the recipient of the electronic communication sent to him by A., he was the holder of his own privacy, and could make it available to the lower court in that sense. That is, contrary to the reading made by the appellant, it is understood that when it is alluded to if there are several holders, the norm of Article 29 of that law refers to there being several subjects located at the same end of the communication; but not when there is a subject on each side, since in this case either of them can consent to it being used. So much so, that if the norm referred to hypotheses, like the present one, where there is a sender and a receiver, it would be unnecessary for it to contemplate the special situation of there being “several holders”, since all communication, to be such, requires at least two subjects. That is, they would always be “several”, which would render the distinction sterile. This demonstrates that, regarding a receiver (as F was), his authorization alone was sufficient for the use of such email sent by A.

IV.- In the fourth ground, the appellant says that several passages of the judgment make evident “a kind of prejudice” or “advanced conclusion”. Thus, he says that the lower court does not justify the qualification it makes of “fraudulent actions”, which must be deduced from the facts and not inferred a priori. At the same time, placing certain expressions in quotation marks “reflects a pre-judgment (sic) by the Court”. Saying that A.'s actions were fallacious, means that he is a liar, which violates the dignity of the defendant. He adds that without narrating the facts, the judgment already qualifies them, besides not stating from where it arises that the defendant told Mr. G. and his advisor that he had already concluded the authorization procedures for the offshore bank to operate. Next, he alleges that the Judges did not say what they relied on to state that F. sent accounting reports every month to M. about the supposed returns on his investment in Belize; that the judgment did not reflect that during 2002 the relationship between that gentleman's companies and Banco Elca was normal; that the certificates delivered to him were not fictitious, as he received interest payments; and, that the judgment does not describe how the Court obtained certainty that this sum was used to satisfy personal obligations of A.. The ground is not admissible. The fact that the Court refers to a series of actions or even to the defendant's way of proceeding in a way that is compromising or exposes him as a subject of caution, does not imply that it held a prejudiced attitude against him. Prejudice is when one holds a position prior to the trial, that is, before the evidence is presented. Not when it has already been presented and the judges have formed their opinion. In such circumstances, there is no obstacle, but rather it is the necessary consequence (unless there is doubt to the contrary) that the judges have an opinion about the subject, his way of acting, and his actions under discussion. In some situations, that opinion may be negative for him, as in this matter. But not because it came from prejudice, but from a judgment based on the evidence presented. Then, if the Court puts some terms or valid resource to connote that their meaning is not the usual one, but rather there is a hidden one, which in this case was part of A.'s plot and fraudulent actions, which (instead of being a position prior to the debate, as the defender says), clearly arises from the evidence presented. This evidence, as is known, is assessed in the judges' deliberation, who, once it is concluded, proceed to draft the judgment, expressing their decision in the document (or to present it orally on the occasions when that is applicable). But in no way does it represent that the judges develop their reasoning at the same time as they draft it or present it in the document. That is why there is no irregularity in that, before addressing the diverse evidence on the subsequent pages, in the written document (or the oral presentation) conclusions of the Court appear, without it being that they were prejudiced or had taken a prior position, but rather it is the product of their deliberation, which has already taken place and does not develop simultaneously with the drafting of the judgment. On the other hand, it was not necessary for the Court to explicitly indicate from where it was obtained that the accused had offered the services of offshore banking as if the authorization procedures had been completed, since by offering them as viable (and the defender himself partially transcribes a testimony in this regard) without mentioning that they were in progress, it was because, of course, its operation was already authorized, or rather that is what the defendant made it seem. On the other hand, there is evidence that F. provided that investor with the aforementioned account statements (see declaration of R, at folios 17058 and 17061), which sought to pretend that things were proceeding normally, when the truth is that the offshore bank was not operating nor had the money been invested. Similarly, the prominence and insistence of A. in this fraudulent stratagem, logic leads one to think that he at least consented to the sending of these account statements, if they were not part of the initial plan to keep the affected parties in error. Likewise, the fact that some of the interest accrued on the money delivered to A. by Night Glow corporation was paid, did not retroactively undo the already configured crime of fraud, in which (as has been stated so many times) the services of a non-existent institution were offered to G., so that he would invest funds that never reached their destination. On the contrary, as explained by the lower court from folio 17255 onwards, these maneuvers sought to conceal what was happening and keep the offended parties in deception. Hence, even though some interest was paid, the certificates did not cease to be fictitious and become genuine, because the offshore banking was not operating nor had the funds been allocated to any investment. This, moreover, makes it irrelevant that during 2002 the commercial relations between G. and Banco Elca were normal, because what matters in this case are not those facts, but the crimes that were ultimately perpetrated, which are neither made impossible nor affected by the previous good relations. Finally, regarding the destination that in the reasoning on evidence chapter the Court said A. gave to the aforementioned received funds (to pay personal obligations), it was not necessary for the lower court to go into detail on each of the payments or expenses made with those funds, which in itself already formed part of the exhaustion phase of the crime and not its consummation, which is unnecessary. It was sufficient, as the lower court said and the defender himself transcribes, that one of the bank officials hierarchically closest to A. (G), so verified it, saying that the account to which the three million dollars from Night Glow corporation had been diverted was a private one of another company controlled by the defendant. The truth is, that with one destination or another, the money was not sent to the purpose for which it was intended, but was diverted by the accused to an account he controlled, which constitutes the alleged financial harm and pointed to an unlawful financial benefit, whether for A. (as was proven) or for a third party.

V.- In the fifth ground, the complainant argues that his client was a distinguished person of impeccable life, until these events, and therefore did not need to engage in this type of actions to raise capital. “When the disbursement of the three million dollars was made, the transfer was requested by Mr. R. as directed to Transamerica Bank and Trust of Bahamas. From the beginning, the complainant party knew perfectly well that the money was not being transferred directly to Belize (sic)”. He indicates that the money not being sent to Belize did not constitute an appropriation of it, but an irregular deposit, and the bank could use it at its discretion. He says that the check for the three million dollars was made in favor of Transamerica Bank and Trust, and that neither Banco Elca nor EIBT-Belize participated in that transfer. Then, he returns to the point that the non-existence at that time of that offshore agency in Belize was not proven; that the money received was as an “irregular deposit”; that the agreement reached in the city of Guatemala and the failure to request the original certificates show the trust that G. still had in the accused; that at most, it was all a violation of banking legislation; and, that A.'s willingness to put up his assets to respond, proved that he had not acted with fraudulent intent. The claim is dismissed. It is not worth revisiting the topic of the non-existence of the offshore bank in Belize as a service of Banco Elca, which is already established from the first recital of this resolution, for which reason the parties are referred to what is provided there. Now, regarding whether the harmed company and its officials knew that the money was not being allocated to that agency, but to Transamerica Bank and Trust, where the accused had an account, it is an irrelevant matter, because the deposit can well be made in favor of a banking entity different from the one receiving the funds, so that the former channels them. “…common practice at that time,” said R. (folio 17057). But this in no way implies that A. was authorized to give them a destination different from that agreed upon by the parties; namely, to invest them and not use them for other purposes, such as the personal obligations of the accused, as confirmed by witness G. So, that this money was channeled through that account and not directly to Belize, which was impossible given that said offshore agency was not operating at that time, but rather there were facilities that simulated a proper operation (something already discarded here), does not mean that the offended party authorized a different destination for his money. This, contrary to what the defender maintains without any basis, was not an “irregular deposit,” or an act in which someone places a good or value in the care of another with more or less faculties, for which a lawful placing in possession is required. In the present matter, the placing in possession was not lawful, as it was preceded by a deception, into which Mr. G. had been made to fall and which has already been described repeatedly and is pointless to which was non-viable as it did not exist then, nor through Banco Elca, what is beyond discussion is that it did pass through the hands of A., who disposed of it distancing himself from his commitment to the investing company, whose owner had been deceived, for which he used the appearance of solidity and respectability that the bank and his personal background gave him. Thus, to maintain here, as the accused tried to do before the creditors, that this is not a matter for Banco Elca, is to ignore the circumstances in which the deception operated. In another sense, the fact that during 2002 the business dealings of that harmed party and Banco Elca were positive, does not entail that they continued to trust him when they reached an agreement in Guatemala, in which a new payment schedule was planned, but rather, as stated by Mr. G.'s legal representative, they did so to salvage what they could, but that by then they were certain they had been deceived, a thing they ratified when A. expressly told them he was not going to pay them the owed money (folios 17058, 17059 and 17061). At that same meeting, said Mr. G, “I was more convinced that A. and F. were thieves” (folio 17161). So it is not true that by accepting that proposed agreement in the city of Guatemala, the offended party condoned or ratified the defendant's actions, but rather he was trying to recover his money, which was not possible, because the cited agreement was not honored by A.. Even after that, according to witness N, “…we came out convinced that we had to file the criminal action, but G. wanted an economic settlement” (folio 17141), which discredits the defender's thesis that he used the criminal process to safeguard his funds in the face of the bankruptcy of Banco Elca. In summary, the problem was not one of disrespect for Costa Rican or Belizean banking legislation or not, but that financial harm had been caused to G.'s company by using a deception or artifice on the part of A., thus constituting a fraud crime. Faced with a situation like that, definitely having left the alleged original certificates in the custody of F. was an error, as was revealed later, but at that time the fraud was not foreseen, but only the breach of obligations. Once the deception was discovered and the efforts to recover the money were fruitless, the appropriate course was not to request the titles, but to report the facts, as was indeed done. Finally, it is not true that A.'s willingness to hand over some of his assets to answer for his debts shows that he lacked fraudulent intent. Firstly, because that would merely have compensatory value regarding the crime that had already been consummated some time before. And, most importantly, because those assets did not cover the amount defrauded and were not reliable. According to witness N, “…even through Don A. some properties were offered to us, they went to see them but they were not worth enough or were entangled” (folio 17141).

VI.- In the sixth ground, the appeal argues that “With total loss of the principle of objectivity, the Court bases its reasoning for imposing the sanction on C, on the testimonies of H, R. and G, and takes from these persons very subjective affirmations without evidentiary support in the rest of the evidence”. He adds that A. sought a settlement by making some of his properties available to the interested parties, which was disqualified using the criterion of witness N.; that it was not taken into account that with the others involved (G. and F. ) a settlement was reached for 2 and 2.5% of what was demanded of them; that Mr. G. saw interest payments and was able to recover “many millions of dollars”. Next, he questions the use that was made of the account of the corporation Bosques de Ayarco and that EIBT-Belize had a physical presence in that country, about which this judgment has already addressed, so reference must be made to what is provided there. Finally, he says that the physical health of his client was not considered for setting the sentence, nor his family obligations with young children; that R. said that “when asked if he was going to pay, he simply said, looking his interlocutor in the eyes, that no…”, a thing that is a rhetorical, not a legal, resource; and, that the medium penalty referred to by the Court is not eight years, comprised of ninety-six months, as was imposed on the defendant, but seventy-six months. The defender is incorrect. In the first place, the sentence imposed on A. is not based solely on the statements of those witnesses he criticizes. Moreover, even if it had been so, it would not have constituted an irregularity, provided they were credible and consistent testimonies, as they indeed were. In any case, it is worth keeping in mind that, as stated, they were not the only pieces of evidence weighed for this purpose, but rather, it suffices to read from folio 17279 onwards, although only express mention is made of them, the judgment of blameworthiness is based on the entirety of the evidence gathered in this regard and the conclusions about the guilt shown thereby in the defendant's actions.

On that subject, the Court stated: “The final paragraph of Article 216 of the Criminal Code, by stating that 'The preceding penalties shall be increased by one third,' requires that the minimum and maximum ends of the abstract penalty provided for the crime be increased by one third. Since in this case we are dealing with a major fraud (estafa de mayor cuantía) whose penalty is six months to ten years, the abstract penalty imposable with the proven aggravating factor is eight months to thirteen years and four months. Both the Public Prosecutor’s Office (Ministerio Público) and the private prosecutor (querellante) requested a prison sentence of eight years, which, as can be observed, is neither the minimum nor the maximum penalty. This Court unanimously considers that the aforementioned sanction should be upheld as it is appropriate to the culpability, that is, the level of reproach that must be made to the accused A., considering the elements indicated in Article 71 of the Criminal Code. Regarding the subjective aspects of the punishable act, it must be taken into account that the accused acted with direct intent (dolo directo) and not only managed to consummate the crime by obtaining the delivery of the three million dollars on May 31, 2002, but also kept the offended entity in error for a much longer time by delivering supposed investment account statements that never actually existed. When the delivery of funds was required, he alleged problems with other international banks for the transfers, client controls due to the amount, invitations to invest, and this caused that, at least until January 2004, the victim did not know the full extent of what had happened. Regarding the objective aspects and the circumstances of manner, time, and place, it must be borne in mind that R., representative of m. and Night Glow S.A., met C. because references of him had been given at Finadesa, where R. was a director (an institution that was a shareholder of Financorp Puesto de Bolsa, which in turn was part of Corporación Elca Internacional S.A., chaired by A.), knew the broad prestige that Mr. C. held in the Costa Rican banking and financial environment, the solid curriculum vitae he possessed as President of the Chamber of Commerce, director of the Banking Association, President of the Chamber of Private Banks and financial entities, founder of Corporación Elca, etc., so he approached him at the physical facilities of Banco Elca to arrange investments for his principal, meetings were held with the very President of the Corporation and of Banco Elca, who called in senior executives (managers) to participate, and as a result of that situation, investment in the offshore banking system of Belize, nonexistent at the time, was induced. So the induction into error was carried out under conditions that were highly credible for any victim, without any element emerging to distrust the legality of the business proposed by A. This induction into error and this injection of liquidity occurred at a time when the accused A. was carrying out a plurality of business activities (founder and President of Hospital Cima San José, of Cormar, former president of Chambers, etc.), when many of his accounts had negative balances or overdrafts, so he had to resort to third parties lending him their accounts and names to make payments (as H. stated), and that Banco Elca S.A. had already presented levels of irregularity decreed by SUGEF (in that regard, C. and O., among others), all of which allows one to glimpse what the determining motives for the commission of the act were, that is, the accused’s intent not only to obtain resources at all costs and thus hide other irregularities already present in his personal finances and those of the bank he directed, by which he would manage to artificially maintain the prestige he held in the national environment. The importance of the injury to the protected legal interest must also be considered, that is, the assets of the offended entity which were impaired by at least three million United States dollars, that is, approximately one thousand four hundred and seventy-six million colones at the current exchange rate (four hundred and ninety-two colones per dollar), without considering the interest that the sum could have generated according to what was agreed. Without a doubt, for the consummation of the crime, it is particularly important in this case to consider the conditions of the active subject and the victim, because if Mr. C. had not had the curriculum vitae, the prestige, and the position of President of Banco Elca exercised in the manner he did, and if the victim had not been previously aware of them, the crime would evidently not have been consummated. That relationship gave rise to the trust necessary for the passive subject not to take extreme controls that he would have used in other circumstances. Moreover, A. takes advantage of the circumstance that he knows the invested money came from the sport book activity to misappropriate it under the false belief that the origin of the funds or the potential lack of tax declaration for them made them illicit and that this would prevent the active subject from claiming them through legal channels, and even says so to the victim by stating that he separated the funds from Banco Elca 'to protect him,' to which G. states that his legal situation is in order in the United States, that no one gave him instructions to proceed in that way, and that he can freely report who the final recipient of that sum is without any legal problem, something with which—probably—A. did not count. Finally, and no less important, is the agent’s conduct subsequent to the crime, for A., in one of the last meetings with the representatives of the direct victim, when asked if he was going to pay them, merely stated, looking his interlocutor in the eyes, that he would not (just as R. stated), and although at some point there were proposals for the delivery of assets, they were—as stated by the victim’s representatives, G. and R.—laughable since they involved encumbered real estate, of a value far lower than what was lost, etc. All these reasons lead the Court to hold that the penalty deserved by the accused in this case can never be a minimum or low penalty, but that he must be sanctioned with a sufficiently high penalty to be proportional to the harm suffered and his high level of reproach, given the circumstances described, without it being possible, either, to impose the maximum end of the penalty (of thirteen years and a few months) considering that he is a first-time offender (primario) as recorded in the judgment certification on folio 16635 of volume XXVII main, in addition to the fact that—as often happens in white-collar crimes—he is a person adapted to basic social guidelines (he has had university studies, has performed successfully in employment, helps the community, has no addiction problems, has family ties, etc.), where the resocializing principle (foundation of the prison sentence in our environment pursuant to Articles 51 of the Criminal Code and 5.6 of the American Convention on Human Rights) and understood, for this case, as the process of raising awareness about the consequences of his acts and the need to adapt to all norms of human coexistence, including commercial guidelines, would be achieved with amounts lower than the upper extremes. Therefore, imposing eight years in prison as requested by the prosecutors, that is, a medium penalty (five years and a few months less than the maximum penalty and seven years and a few months more than the minimum), is considered appropriate to the foregoing, and it is proper to so decree.” (folios 17279-17282). This proves that the petitioner’s complaint is unfounded. Furthermore, nothing prevented ruling out, based on the testimony of Ms. N., that the properties offered by A. did not match the value of the damage nor were reliable, since there is no element whatsoever (nor does the challenger set one forth) to discredit that statement, which proved to be solid and informed. Regarding the fact that conciliations were reached with the other two involved parties for 2 and 2.5% of the sum demanded of them, it is not clear whether, again, the defense counsel attempts to sow doubts about the reliability of their testimonies, an issue that has already been clarified in these pages, or whether he regrets that his client was not given the same treatment, which is completely understandable, by virtue of the fact that he was the perpetrator of the deception, the one who decided the destination of the funds, the one who acted as president of Banco Elca, and, moreover, was its majority owner. Therefore, the level of intervention and culpability in the acts was much greater, and, as a result of the conciliation, the aggrieved parties provided themselves with additional evidence to establish the liability of the former, which is perfectly in accordance with the law. It is not true, moreover, that Mr. G. received payment of the interest on the sum diverted by A. Some interest was paid to him in an attempt to keep the deception afloat, but not all of it. Furthermore, since the contracts began to be breached, that gentleman received no more money for that concept and continues not to do so. The fact that he could recover 'many millions of dollars' (actually two) from the other operations does not mean he did not lose the three million that were the object of the fraud at hand. The matter of how R. narrated A.’s response is procedurally irrelevant, because even if it had a rhetorical effect (which is lawful), unless it is shown to be implausible and to have led to unreasonable conclusions, which does not occur in this matter, it is of no interest. Regarding whether the eight-year sentence imposed on the accused for these acts is half of the legal range or not, that is an argument that assumes the lower court’s (a quo) statement tends to be located at that 50%, when the truth is that it speaks of a 'medium penalty,' but clarifies immediately that no reference is made to the seventy-six months alluded to by the defense counsel, but to eight years in prison, regarding which the punitive assessment of the Judges has been developed. This is fully visible from folio 17279 (and can be read in the transcription made above), where the lower court (a quo) states that it is not proper to impose either the maximum or the minimum possible, a sense in which a 'medium penalty' is spoken of later. From there, and taking into account all the relevant circumstances of the act and the personal conditions of the accused (including his public record), it is repeatedly stated that the prudent sentence is eight years in prison. Finally, if the accused’s health is not the best, that is an aspect that can be addressed by the defense attorney in the sentence enforcement phase to ensure the best possible well-being for his client. Likewise, despite the situation of the accused’s children being lamentable, just like the children of any person deprived of liberty, the truth is that this is an element whose importance pales and is relatively slight when compared with the seriousness of the acts he incurred in. Consequently, both are topics that have no greater relevance in the setting of the penalty that the defense counsel demands.

VII.- Next, the appellant (recurrente) reproaches the Court for having considered it proven that Mr. A. came into possession of the investment certificates of the H. family, ordering their early redemption without any prior study, in order to cancel a loan that he had irregularly granted to the corporation (sociedad anónima) Kiona San Francisco. So, says the petitioner, while on one hand he is considered not the owner of the securities, but rather a bank official who authorized their redemption, immediately thereafter it is said that he acquired the securities and redeemed them, to proceed with the known payment. Everything is resolved, says the defense counsel, by noting that there is a letter from the owners of the securities requesting their early redemption to cancel the loan operations of the aforementioned corporation. Therefore, the one who orders the redemption is F., and not the accused. On the other hand, Mr. H. himself stated that the financial statements of that corporation, whose loan he was going to assume in exchange for the investment certificates, had been reviewed and seemed good to him. Shareholder E. of the corporation also testified in the same vein. Thus, there were no reasons to assert that A. had come into possession of those securities and ordered their redemption. This being so, a series of legal precepts were violated, which must lead to the judgment being overturned (casar) in this regard. The challenger goes on to state that Article 245 of the Criminal Code punishes anyone who, using privileged information (información privilegiada), acquires or sells securities for their own benefit or that of a third party, which did not happen in this matter, in which A. neither acquired nor sold. So, the same reasons that led the Court to deem some acts atypical lead it to convict for others, which is contradictory. Finally, he replies that according to Banco Elca’s internal regulations, there was no maximum amount for early liquidation, and that paying a debt does not threaten a bank’s liquidity, because it reduces liabilities. The objection is not receivable. To place things in their proper dimension, it is worth recalling that Use of privileged information is provided for in Article 245 of the Criminal Code, which reads: 'Anyone who, knowing privileged information relating to securities traded on the stock exchange, their issuers, or relating to the securities markets, acquires or sells, for themselves or through a third party, securities of said issuers with the aim of obtaining an undue benefit for themselves or for a third party, shall be sanctioned with a prison sentence of three to eight years. For the purposes of this article, privileged information is considered that which by its nature can influence the prices of the issued securities and which has not yet been made public knowledge' (as added to this article by section 185(b) of the Securities Market Regulatory Law No. 7732 of December 17, 1997). Consequently, as the defense counsel points out, it is vital to resolve the claim by determining whether A., thanks to the command of privileged information regarding the securities traded on the stock exchange, their issuers, or markets, sold or acquired securities of said issuers with the aim of obtaining an undue benefit for himself or for a third party. Again, to have at hand what was established in the ruling in this regard, it is proper to transcribe the part relevant to the act being discussed. From folio 17328 to 17337, the lower court (a quo) stated: “It was charged and proven that during the course of June 2004, Mr. F., Ms. M., Mr. F., and Ms. M., all members of the H. family, as investors in Banco Elca, requested from the accused C. the early redemption of four investment certificates, namely No. 200027349, No. 200028337, No. 200027929, and No. 200026056, whose total amount amounted to approximately six hundred fifty-two thousand seven hundred twenty-six dollars and fifty-six cents ($652,726.56) and which matured, the first two, on September 13, 2004, the third on April 7, 2005, and the last on October 7, 2004, the accused denying such possibility under the pretext that it would be detrimental to cash flow, something which, as we have already indicated, he did not argue regarding the requests of his father and wife, but which, in any case, denotes—once again—the knowledge he had of the bank's irregular situation and the consequences of those redemptions. Instead, A. offered to exchange said investment certificates for a 'loan' that Banco Elca S.A. had in its favor with the corporation Inversiones Kiona San Francisco S.A. for four hundred and fifty thousand dollars, and which had as a pledge guarantee thirty-five percent (35%) of the shares of Financorp Puesto de Bolsa and thirty-five percent (35%) of the shares of Financorp SAFI, owned by A., a loan approved unilaterally and irregularly by A. as will be addressed later (section X). On June 28, 2004, siblings F. and M. appeared at Banco Elca S.A. and delivered to C. the respective investment certificates, duly endorsed, and signed some notes that the aforementioned accused presented to them, in which they requested from Banco Elca S.A. the early redemption of the securities that until then belonged to them. Immediately thereafter, the accused ordered the early redemption of those securities and their corresponding interest and proceeded to cancel the loan that Inversiones Kiona San Francisco S.A. had with Banco Elca S.A. Since the H. family also had debts with that entity, the accused, with the rest of the money and at their request, decided to cancel loan operations No. 000300012946, No. 000300012679, and No. 000300012429. The day after that operation, Banco Elca S.A. was intervened, and, shortly thereafter, so were the companies Financorp Puesto de Bolsa S.A. and Financorp Sociedad de Fondos de Inversión S.A. As has been set forth, there is no SUGEF restriction for banking entities to make early cancellations of investment certificates when so requested by the client. Likewise, it is the responsibility of each Bank or financial entity to regulate everything related to this point, as Banco Elca S.A. indeed did when it approved the 'Manual of Policies for Issuance of Investment Certificates' on April 15, 2002. As part of the requirements for these redemptions, it was established that the investor had to request in writing the early cancellation of their respective security, and that these would be authorized and approved by the Presidency, Deputy General Management, or General Management, with no limitation as to the amount. They could also be consented to by the Financial Management and Operations, the Head of Customer Service or Treasury, and the Supervision of Service Platform, but these, indeed, with a limit on the amounts. From the foregoing, and always in accordance with the referred 'manual,' it follows that when the early redemption of the investment certificates in favor of the H. siblings was requested in June 2004, the accused C., as Executive President and owner of Banco Elca S.A., did have the possibility of redeeming the H. family’s investment certificates early, except that on this occasion he did not want to do so under the pretext that it was too large a sum of money and impossible for the bank. How was the early redemption of his father’s investment certificates (approved by the accused on May 28, 2004), which reached a total sum of ninety-nine million, six hundred twenty-five thousand, one hundred ninety-six colones and fifty-six céntimos (99,625,196.56), not a problem for the bank? An aspect we must not overlook is that, as stated when analyzing the early redemption of his relatives’ investment certificates (VII.1), the accused, at the cited time, had full knowledge of the degree of irregularity in which the Bank he directed found itself. We highlight here the official letters SUGEF-623-2004 of February 17, 2004 (folio 50, volume I), SUGEF 1082/200402588 of March 17, 2004 (folio 19, volume I), and SUGEF 1881-2004 of May 13, 2004 (folio 93, volume I), sent to J., then Acting General Manager of that entity, to the Board of Directors of Banco Elca S.A., and to A., General Manager of the bank as of May 13, 2004, it being impossible to think that, because they were addressed to other persons, they were alien to the owner and Executive President of that banking entity, whose experience in the financial area allowed him to foresee in the 'very near future' the negative consequences of the irregularities found by the respective authorities of the Superintendency. As already stated, the testimonies of M., J., J., E., M., W., M., M., R., P., W., among other witnesses, have been very clear in describing the atmosphere of tension and uncertainty experienced by the Bank’s employees prior to the intervention, how meetings were held in which the accused A. participated with the sole intention of 'calming them down,' how, even before the intervention was decreed, there were already SUGEF officials in the Bank’s premises who were dedicated to investigating and detecting anomalies. Recall, for example, what M. stated: '...the atmosphere in the bank in the first quarter of 2004 was very tense, there were many changes, at the employment level there was uncertainty, it was said that the Bank needed to increase its equity, problems were spoken of... it was said that capital was coming from Venezuela, of a potential purchase by a larger bank, we did not know if we would stay or be fired, meetings were held and we were informed, Mr. C. participated actively, he informed us, he appeared enthusiastic about that business...' and J.: 'in October 2003 SUGEF evaluates the portfolio, SUGEF went too far and they forced us to create an excessive provision of 477 million colones in addition to the one we already had, which was 570 million. The minimum required provision was 1,100 million colones. We followed the procedures and there was no way to change that. That situation obliged the Bank, if the provision was created, to report negative results, and to meet the rescue plan and come out with normal risk, the loan portfolio had to increase enormously. Mr. H. was not there. The situation was presented to Mr. C..” All this to reaffirm, once again, that it is not true—as has been insisted—that the accused C. was unaware of the poor situation Banco Elca was going through, nor that he did not know that SUGEF was conducting studies to detect the reason or reasons that precisely led, some time later, to its intervention being ordered. It is worth clarifying that the issue here is not whether the accused C. could or could not approve and sign the early redemption request that the H. siblings had requested (as already said above, he could), but rather, precisely, the 'use of information' he used to benefit himself unduly, for, while it is true he did not initially approve the request made on behalf of the investors themselves, he did agree to make an exchange, consisting of having the H. siblings deliver to him the four investment certificates they had in the bank for an approximate amount of six hundred fifty-two thousand seven hundred twenty-six dollars and fifty-six cents ($652,726.56), and he, in their place, would deliver to them a loan that Banco Elca S.A. had conferred on the corporation Inversiones Kiona S.A. on May 31, 2004, for an amount of four hundred and fifty thousand dollars ($450,000), whose guarantee consisted of 35% of the shares of Financorp Puesto de Bolsa S.A. and 35% of the shares of Financorp Sociedad Administradora de Fondos de Inversión, and, once the proposal was accepted, the accused cleverly proceeds, now indeed, to cancel those four investment certificates early, and with the money resulting from that redemption, not only cancels three loan operations that the H. family and their companies had with Banco Elca, but also hurries to cancel the loan that he himself had irregularly granted to Inversiones Kiona S.A. (this point will be addressed later). It is precisely this maneuver that is questioned, for the objective he pursued by 'acquiring' the H. family’s investment certificates through that means is more than clear. Now then, let us turn to the examination of the evidence related to the H. siblings and which, definitively, corroborates what was stated above. Mr. F. tells us that he and his family were clients of Banco Elca both personally and in the name of their companies Industria Textil, Industria Ella S.A., Dulce Cuidado S.A., and Importaciones Herrero. They held, in said entity, investment certificates No. 200027349, No. 200028337, No. 200027929, and No. 200026056, which matured on December 13, September 13, 2004, April 7, 2005, and October 7, 2004, respectively. Likewise, their companies had acquired loans No. 000300012946, No. 000300012679, and No. 000300012429 from the same Banco Elca. He points out that for the first semester of 2004, the investments they had were approximately three hundred and sixty thousand dollars ($360,000) and one hundred and ten million colones (110,000,000 colones). Noting that when rumors were heard that the bank was doing badly (which, therefore, if they were of public knowledge, was even better known to its President, C.), he decided to seek out C. so that they could redeem the certificates they had, even if they lost a percentage of the value, but the latter told them it was not possible because the sum was too high, telling him to stay calm because there were two or three purchase offers for the bank, one from a Mexican group and another from an American bank. The witness goes on to say: 'I insist, and what he told me was that we should exchange the investments for healthy loans in other companies; he offers me a loan from Inversiones Kiona for four hundred and fifty thousand dollars, guaranteed by 66% of the shares of Financorp Puesto de Bolsa and Financorp. He gave me balance sheets from the previous month. I studied them; the balance sheets reflected very pleasant information.' For these reasons, he ultimately decides to accept C.’s proposal on the understanding that the owner of the corporation Inversiones Kiona S.A., Ms. E., would make a first down payment of one hundred and twenty thousand dollars ($120,000), that the loan operations of his companies would be canceled, and that, with the remainder, the exchange of his investments for the loan of Inversiones Kiona S.A. would be made. All this occurred on June 28, 2004. However, the next day, the intervention of Banco Elca S.A. was ordered, and subsequently the intervention was extended to other entities related to Corporación Elca S.A., such as Financorp Puesto de Bolsa and Financorp Sociedad de Fondos de Inversión, consequently harming the interests of the H. family. Testimony of interest is that of Ms. E., who worked for Financorp from 1996 until August 2004, not only because she has a direct relationship with Mr. C.’s negotiations surrounding the redemptions of the H. family’s investment certificates, but also because she clarifies points regarding the corporation Inversiones Kiona S.A. that are also important in the issue of the back-to-back operations (on which we will return in section X). She indicates that at some point, C. suggested that she buy 5% of Financorp Puesto de Bolsa, for which Bancrecen granted her a loan through a company she purchased called 'Inversiones Kiona S.A.,' a loan she is still paying. By 2004, the accused told her that the Venezuelans—in point X of the judgment, this fact is highlighted as part of the 'rescue plan' for Banco Elca—were no longer interested in buying the brokerage house (Puesto de Bolsa) or the investment fund (Fondos de Inversión), and offered to sell her 50% of the shares of Financorp, telling her that the Bank could lend her about four hundred and fifty thousand dollars ($450,000) and that a company of his, called Santa Damiana, would lend her the rest. The purchase was made in the name of Inversiones Kiona, and the shares of Financorp Puesto de Bolsa and Puesto de Inversiones were given as guarantee; in total, the obligation added up to approximately nine hundred thousand dollars. The debtor was, therefore, Inversiones Kiona, which did not have a checking account and one had to be opened at Banco Elca, and there the two loans were disbursed. In relation to the H. family’s investment certificates, it is important to highlight the following literally: 'at some point, Mr. C. spoke to me that he was meeting with the superintendent of banks and that he was objecting to the loan given to Inversiones Kiona. I asked him why if it was backed by shares, and he told me that they insisted that Inversiones Kiona cancel that loan, because if not, they were going to rate it poorly and provision the money. It gave me terrible anguish, but I told him I couldn’t pay overnight, and he told me there was a bank client in various things who was willing to buy the loan from the bank, who wanted to see the financial statements of Financorp. I went to the bank, met with that person, F., brought him financial statements of both companies, he told me he would think about it, he was accompanied by his advisor, I don’t know if financial or legal, and very close to that, Mr. C.

me told me that his client had agreed to sign the credit, I continued to be a debtor, to whom I owed was indifferent. I signed the credit with that person, the shares were released from the trust of Banco Elca and were transferred to the new creditor of Kiona." See here clearly why C, by June 28, 2004, was already urgently needing to obtain money to cancel the credit granted -irregularly- to Mrs. E. (that is, to avoid a reclassification of the loan that implied an increase in provisions), and the easiest way to obtain it was by acquiring the investment certificates of the Herrero family since, otherwise, he did not have money to do so. With relation to the credit granted on May 31, 2004 to the corporation Inversiones Kiona San Francisco S.A. -full legal name- whose legal representative and generalísima attorney-in-fact without limit of sum is E., the following observation must be made. As some witnesses have indicated, especially former employees of Banco Elca, the approval of a credit had to first pass through a credit committee that met every week and that was comprised of C, J, H., the head of credit, and the head of business management. Thus J. tells us that the cases were prepared by the business executives and were first passed through a pre-committee one day before the weekly meeting, on that day everything processed by the executives was brought and the credit cover sheet was circulated with the resolutory part and the signatures of those present were stamped so that the credit would be approved, then the formalization process would follow. He indicates that on some occasions a credit application could circulate among the different approval levels without the credit committee being assembled but that this did not mean non-compliance with procedures, in fact, in the following session of the committee the respective approval minutes had to be included. He points out that by 2004 there were credits that did not pass through the credit committee and were signed only by Mr. C. or Mr. H. and sometimes by both. With regard to the credit of Inversiones Kiona, he indicates that, among the irregular operations he encountered, was the formalization of a credit that the accused C. processed directly in the name of a company of E. that was cancelled fifteen or twenty-two days beforehand so that it would not appear in the entanglements of SUGEF and that did not go to the credit committee. In the same sense, witness M. talks to us about the existence of a credit committee that studies the different credit applications and then must make a collegial decision; he mentions -as an important piece of information- the hierarchy of signatures that could be classified as A or as B, in his personal case he was a B signature and did not have the authority to approve a credit by himself; the accused C, Mr. J. and Mr. H., according to his version, were class A signatures. In such a way that a credit could be approved with one A signature and one B signature, with two A signatures, or three A signatures according to the regulations but, in fact, one A signature was enough "even more so if it came from Mr. C. or Mr. H., it is very likely that it would be done, in a Bank if the person of highest rank orders it one cannot oppose unless they are dismissed." Witness H. also refers, in his ample declaration, to the credit committee and to the signatures that were required for the approval of a credit, he stated: "The credits were submitted to the Credit Committee after analysis by the respective area, the committee met on Tuesdays, it was composed of officials of a certain level of the bank with Z, F, the head of collections, of credit, account executives, E, A and I, the credit documents were signed approving or rejecting. Normally there were type A and type B signatures and I believe even type C because the committee sometimes did not meet in full and two A signatures and one B or three B and one A were required, right now I do not remember how the combination was, but there was a composition to approve credits. All members of the committee had participation to sign, mine was type A. It is not necessary that everyone be together to approve a credit, sometimes they were approved as a circulated committee, one would go one by one to those who were present. Normally it was the account executive who circulated it or the head of credit for corporate credits. Once the signatures were collected, the file returned to the business or personal credit department and then formalization was coordinated." Again witness M. refers to the credit committee, indicating that it met every week and a study was made, it was discussed whether to approve or not. Regarding the members, he mentions C. and J., in said committee a cover sheet was made with all the details of the operation, but there were credits that, despite not meeting the requirements, were approved by simple order of the Presidency or the Management because they said that "they were important clients and that subsequently they would collect the documents." These were credits that did not meet the minimum requirements, that sometimes lacked a guarantee. He indicates that the credit category is assigned by the financial analyst, but in those credits the category was already assigned on the cover sheet. Like the previous witnesses, he alludes to the circulated committee in relation to credits that were urgent or because of the type of client that were processed with a lack of signatures, which would later be collected. We also have the declaration of E., former director of the Bank who indicated: "I did have knowledge of credits that were not approved as I indicated, it could be due to urgency because the committee met once a week, it seems to me it was called 'circulated committee', a credit cover sheet was requested that circulated among the middle management of the bank. With a single signature I believe one could not speak of a circulated committee, I believe there was a regulation on the number of signatures a document should carry." He indicates that there had to be a combination of signatures, for example that of the credit manager, plus that of the head of credit and Mr. C. For his part, Mr. Oscar Rodríguez, in his capacity as Superintendent of financial activities, in relation to the topic of the credit granted to Inversiones Kiona San Francisco S.A., stated that this operation denoted a high risk because, according to the payment capacity analysis, this corporation remained with an indebtedness of 80% and could only pay interest and not the principal (for it must be remembered that the loan given to E. so that she could carry out the acquisition was "while" she could locate investors who would carry out the acquisition of those corporations, according to what she said). The superintendent added that the credit approval policy is specific to each entity, that SUGEF cannot impose it but that it does require that clear policies exist, that according to the internal regulations of the bank a combination of signatures was required for approval and that, in the case of Banco Elca, that requirement was sometimes not met. The declarations brought up serve to clarify for us what the policy to follow for the approval of a credit was, which, in the case of Inversiones Kiona San Francisco S.A., were not followed since said operation under N° 300012945, was approved solely by the accused. Let it be remembered that C. himself is the one who tells Mrs. E. that the Bank could lend her four hundred fifty thousand dollars ($450,000) and that a corporation of his –Santa Damiana- would lend her the rest so that she could thus buy 70% of the shares of Financorp, an operation that he cancels on June 29 when he had already acquired the investment certificates of the H. family. What has been narrated up to here allows us to outline two independent facts: on one hand, the irregular approval of the credit in favor of Inversiones Kiona S.A. that the accused carried out, a fact that -as will be indicated- is one more of those that make up the crime of fraudulent administration that is being attributed to him and, on the other, the early redemption of the investment certificates of the Herrero siblings, without any study on the impact that this had on the diminished finances of Banco Elca S.A. for that date, with the aim of, with that money thus acquired and knowing the information of scarce circulation about the seriousness of the finances of the entity he directed, being able to cancel that credit granted a few days before. The legal consequences of this, as well as of the other redemptions, will be analyzed immediately." So it is evident that the maneuver developed by A. was preceded by an anomalous action on his part, as was the granting of a credit to Mrs. E., to whom he had offered to sell 50% of the shares of Finacorp. When she told him she had no money, he offered to give her a loan of 450,000 dollars from Banco Elca and the rest from a corporation of his, called Santa Damiana. The credit, contrary to the internal regulations of the bank, was granted individually by the accused to Inversiones Kiona de San Francisco, which remained as debtor and gave as guarantee the shares of Financorp. After this, the accused needed to cancel the irregular credit he had granted to this latter corporation, for which he made use of the certificates of the H. family. With that objective, when the holders of those certificates appeared to request their redemption, A. told them it was not possible, because it would affect the cash flow (against what the appellant now argues). As an alternative, and knowing full well about the precarious situation of the banking entity from the sources enumerated in the ruling, he offered them in exchange for the titles a credit that the Bank had for four hundred fifty thousand dollars with the Corporation Inversiones Kiona San Francisco S.A. and that had as a pledge guarantee thirty-five percent (35%) of the shares of Financorp Puesto de Bolsa and thirty-five percent (35%) of the shares of Financorp SAFI, a business in which they agreed. It was when the H. siblings appeared at the bank to deliver the endorsed investment certificates, that A. presented them with the notes requesting redemption, even though he had previously told them it was not possible. Then, the accused himself ordered the redemption using said notes and cancelled with the proceeds the irregular credit already mentioned. The next day, both the bank and the Financorp corporations were intervened. In short, up to here it is established that A. used privileged information he had about the situation of the stock market securities of Elca and Financorp, as well as of their issuers. Now it must be resolved whether, in pursuit of an unjust benefit, that accused proceeded to acquire or dispose of securities of said issuers. The answer is positive. To cover up his anomalous actions, he had to cancel them before they came to light, above all when the intervention of Banco Elca was imminent. For this, as the Tribunal stated "…the easiest way to obtain it was by acquiring the investment certificates of the Herrero family since, otherwise, he did not have money to do so." In other words, he acquired the investment certificates of the H. Siblings, the same ones he had previously refused to redeem, since that act was prejudicial to the cash flow; but which now, once he had obtained them, he proceeded to exchange and cancel the loan that he himself had granted to the corporation of Mrs. A. so that she would buy shares of other corporations of his (of A.). In synthesis, there was a use of privileged information in the terms of the legislation previously referenced. The ground is dismissed.

VIII.- In the following ground, it is reproached that when the use of privileged information is attributed, it is required that this be a concrete piece of data, and not a supposition. In the case of the H. gentlemen, the information was not privileged, since they requested the redemption of the certificates when they heard a rumor about the bad situation of Banco Elca, so it was of a public nature. The defender says that in the entire ruling it is not stated what the information is that is deemed privileged. In that sense, he transcribes some paragraphs of the resolution, from which he affirms that it cannot be inferred that one was in the presence of privileged information. What happened was that the H. gentlemen, faced with comments about the failure of the conversations of Banco Elca with a group of Venezuelans for them to buy it, preferred to exchange their titles, given that the alternative offered by the defendant of acquiring a credit from a company that did not show financial problems was a fully legal business. The ground is not admissible. To begin with, it is not true that the corporation Kiona de San Francisco had the solvent situation that is now suggested. A. knew that, in order to buy the shares of Financorp, she had had to obtain a loan for the totality of its value, remaining with an indebtedness of 80%, and being able only to pay interest and not the principal. Then, the fact that rumors or public comments were heard about the situation of Banco Elca, does not imply by a long shot that its internal situation was public knowledge, as the defender posits. Outside the bank, there could exist the sensation or the comment that things were not going well. But from there to managing the internal situation, with its amounts, points of weakness or eventual strengths, possible or closed exits, liquidation alternatives and, above all (as it is pertinent to the case), irregularities to cover up and the imminence of an intervention that was looming in view of the repeated warnings of SUGEF, those were all aspects known to very few people and, mainly, to A.. Hence, having carried out the transactions already such vicissitudes, was indeed a use of privileged information.

IX.- In the ninth ground, the defender indicates that in proven fact 42, the Tribunal deemed accredited the losses for the bank as a result of the loan granted in favor of the company Inversiones Tres Mil Sociedad Anónima, property of J. Then, employing various legal entities, the a quo held, A. managed to abstract the nine hundred thousand dollars of that loan. The defender says that to assert that the bank was "sacked" for that amount is in contradiction with the proven facts that go from 47 to 56, in which it is recorded that such funds were joined in the operational account of Bosques de Ayarco sociedad anónima, and returned to the bank. "What occurred, as can be seen, if the rules of logic and administration are applied, is not sacking but an accounting operation, with the purpose of reducing the delinquency of the Bank's portfolio…", the complainant argues. Upon realizing that a credit loses its guarantees, it is preferable to give it a little more time, so that it does not become a loss. The new operations, in consequence, by having new terms, allowed the Bank's portfolio not to deteriorate so much; but they did not constitute a loss, which only came from the loan granted to Inversiones Tres Mil. To think the contrary is to welcome the version of G. regarding that F. lent his corporations to A. so that he could obtain money. On the other hand, regarding what touches on the irregular credits that were managed in the name of Mr. B., the loss arose from the first credit that was given to him with all normality (after which there was no disbursement), not in the two extensions authorized by the accused and in which at the end the credit appeared in the name of Santa Damiana sociedad anónima, entity belonging to the defendant. There was not, in synthesis, any appropriation of money by A.. The objection is not admissible. Again, given the profusion of movements and the global complexity of the situation, it is fitting to transcribe what the ruling established in this regard. From folio 17346 to 17358, the Judges indicated: "It was accused that on April twenty-second, 2003s (sic) J. presented to Banco Elca S.A. a loan application in favor of his corporation Inversiones Tres Mil S.A. for the sum of eight hundred twenty-five thousand dollars ($ 825,000.00). As a guarantee, four investment certificates were offered that the investor, Michael Andrew Carabetta held in Banco Elca S.A. in the name of Inversiones Savinelli S.A. which represented the total sum of one million dollars ($1,000,000.00) and were maturing on July 21, 2003. At the maturity of the certificates, these were renewed for certificates N° 000200025319 and Nº 000200025320 each for a value of four hundred twenty thousand colones that would mature until July twenty-first, two thousand four, however before their maturity they were redeemed early, presumably by A., leaving the obligation contracted by Inversiones Tres Mil without a guarantee. The credit was approved under operation N° 300011698, on April twenty-nine, 2003 an initial disbursement of eight hundred thousand dollars was issued in favor of F. as representative of the corporation Inversiones Tres Mil S.A.. These facts were subject to a conciliation in case TP 06-0027-515 of the Criminal Court of this circuit, so they will not be known or judged in this ruling but serve as context to determine what happened afterwards. In order to cancel the credit approved in favor of Inversiones Tres Mil S.A. it was accused and accredited that C. between the twenty-fifth and the twenty-sixth of February, two thousand four, unilaterally approved -in his capacity as highest leader of Banco ELCA S.A.- five direct credits in favor of the corporations Punta Palmira PP S.A., Bauza Casa Grande S.A., Por Larrañaga S.A., La Gloria Cubana S.A. and Mobiliaria Activa Dos Mil Ocho S.A., same in which C. figured as their founding partner, president, and attorney-in-fact generalísimo without limit of sum and to which he granted credits that totaled the sum of nine hundred five thousand dollars ($905,000.00); once the respective cashier's checks were made out in the name of each of the corporations, they were credited to an account called 'cashier's checks', later they are reversed by A. to proceed to issue another five cashier's checks for the same amount but in favor of the Corporation Bosques de Ayarco, an account he had in Transamerica Bank & Trust Ltd. (offshore of Banco Interfin S.A. in the Bahamas), these new checks are deposited to an account called 'sundry creditors'. On the twenty-seventh of February, 2004 the corporation in question issued check Nº 3260 for eight hundred eleven thousand eight hundred thirty-five dollars and sixty-seven cents ($811,835.67) in favor of the corporation Inversiones Tres Mil which is credited to the account of the corporation Grupo Prisma Asem S.A. (property of J.) in Banco Elca. That same day, Banco Elca S.A. issued Debit Note N° 77732 from the current account of Grupo Prisma Asem S.A., to be applied to the cancellation of Credit Operation N° 300011698 in the name of Inversiones Tres Mil S.A. The five credits that C. granted on the twenty-fifth and twenty-sixth of February, 2004 to the already mentioned corporations were reclassified by SUGEF as 'uncollectible or of a recovery value extremely low' to the detriment of Banco Elca S.A. VIII.1 Evidentiary analysis in relation to C: It must be indicated that the evidence we will proceed to examine in this section, especially the testimonial, also relates to the other topics that have been analyzed and will be analyzed in other considerandums, hence it may seem reiterative, when in reality it is not so. On the contrary, it is evidence that, coming from former employees of Banco Elca, covers different topics of the accusation that have been accredited. From what has been set forth above, the tribunal manages to determine five fundamental circumstances: (i) the legal representative and generalísimo attorney-in-fact without limit of sum of the Corporation Inversiones Tres Mil S. A is Mr. J. On April 28, 2003, operation Nº 300011698 was approved in favor of this legal entity for the sum of eight hundred twenty-five thousand dollars ($825,000.00), the loan guarantee being various investment certificates that Mr. Michael Carabetta held in the name of Inversiones Savinelli S.A for the total sum of one million dollars; (ii) the accused C., as Executive President and owner of Banco Elca, between February 25 and 26, 2004, unilaterally approves five credits for a total amount of nine hundred five thousand dollars ($905,000.00) in favor of five corporations controlled by him (see volume XI folios 4731 and following, 4749 and following, 4764); (iii) the monies from those credits came from the funds of Banco Elca, being finally deposited in an account in the name of Bosques de Ayarco S.A that the accused A. held in Transamerica Bank & Trust Ltd in the Bahamas; (iv) with those monies A. cancelled the credit granted to the corporation Inversiones Tres Mil S.A, property of J.; (v) all the credits of the five corporations were declared by SUGEF as 'uncollectible'. The above has been accredited thanks to the declarations of the witnesses we are preparing to examine. However, it is important to remember beforehand that in Banco Elca there operated a 'credit committee' that, prior to any approval of a credit, studied the applications and verified that the required requirements were met, all of which was compressed into what the witnesses have called 'credit cover sheets'. Thus we rescue, for example, what was declared by H. when he says: "The credits were submitted to the Credit Committee after analysis by the respective area, the committee met on Tuesdays, it was composed of officials of a certain level of the bank with Z, F, the head of collections, of credit, account executives, E, A and I, the credit documents were signed approving or rejecting. Normally there were type A and type B signatures and I believe even type C because the committee sometimes did not meet in full and two A signatures and one B or three B and one A were required, right now I do not remember how the combination was, but there was a composition to approve credits. All members of the committee had participation to sign, mine was type A. It is not necessary that everyone be together to approve a credit, sometimes they were approved as a circulated committee, one would go one by one to those who were present. Normally it was the account executive who circulated it or the head of credit for corporate credits. Once the signatures were collected, the file returned to the business or personal credit department and then formalization was coordinated." In similar sense J, when he points out that the credit committee had to make the decisions on the credit applications that were presented; that the cases were prepared by the business executives who one day before the Committee meeting brought them to a 'pre-committee'. With relation to the file or credit cover sheet he tells us: "A credit file, materially, has the client's background, the application, the investigation that must be done, the bank reference data, from SUGEF, the contribution of financial statements, cash flows, projections, feasibility studies, the analysis that a bank office makes of the file, endorsed by a financial analyst who gives the recommendation. It contains the guarantee section and on the cover sheet a summary is made. A simplified copy was in the disbursement area." This witness was shown evidence binder Nº 33 referring to the formalization credit Punta Palmira S.A and he said that he could not describe it as a credit file because it did not meet the characteristics, there was no financial information, it was not indicated who the fiduciary guarantee is, it does not indicate who gives the endorsement, there is a cover sheet approved by Mr. H. and Mr. C. but the other cover sheets do not carry anyone's signature, in the same sense with evidence binder N° 31 belonging to formalization B which is a 'draft' used as a credit cover sheet to take to the credit committee. Another testimony on that point is that of M. when he relates that the credit committee studied the cases and then made a collegial decision, there existing a hierarchy of signatures that were classified as A, B, or C. Likewise, Mr. M. points out that in the credit committee minutes were made of the approved credits, then a credit cover sheet was made that contained all the details of the operation. An important aspect is that referring to the so-called 'circulated signature committee' that a large part of the witnesses have mentioned, for example Mr. J. told us that "a credit application could be circulated to the different approval levels without the credit committee being assembled according to the needs. That means it did not go to the heart of the committee to be approved but that did not permit the lack of compliance with any of the procedures that SUGEF establishes for credit approval and in the following session they were included in the approval minutes." Mr. H. in this regard indicated that all the members of the credit committee who participated had to sign, but that it was not necessary for everyone to be together to approve a credit, that sometimes they were approved as a 'circulated committee', that is, that the account executive circulated the document and once all the signatures were collected the file returned to the business or personal credit department and then formalization was coordinated. M. and E. also refer in their testimonies to the circulated committee, the first stating that there were urgent credits that were processed with a lack of signatures, which were later collected, while Mr. E. tells us that it corresponded to the credit executive, as representative of the client before the bank, to circulate the respective credit file. All this is pertinent to highlight that a credit could not be approved just like that, but necessarily had to be known by a credit committee, that is by each of the members that comprised it and that, according to the witnesses, were C. himself, J., the heads of collections and credit, the account executives, E. and H. and that, in the same way, said documents required being signed by all of them at the same moment of their approval or later through the procedure of 'circulated committee', which did not exonerate that, in the following session of the Committee, those credits granted circularly be incorporated into the minutes, something that did not happen with any of those dealt with here according to such witnesses. Of importance is the existence of different classes of signature of the committee members, that were required for the approval of a credit and that were conditioned according to the amount to be approved, thus for example the class A signature was that of the Executive President, that is, that of Mr. C., that of Mr. H. and that of J., B signature was that of J., the business manager, the head of credit and the head of financial analysis, determining that there necessarily had to be a mix of signatures for the approval of a credit or several type A but never a single one, according to the manuals, although -as has been indicated before- A. had managed a practice against them approving credits with his sole signature. The above can be corroborated with the testimonies already cited. We now move to that concerning the approval of credits in favor of the corporations owned by or related to the accused C, all duly registered before the National Registry Mercantile Section according to indicated by the legal representative certifications pertaining to them contained in the record. Thus on February 25, 2004 C. approved a direct credit in favor of Punta Palmira PP S.A. for two hundred five thousand dollars ($205,000.00) which -after deducting the corresponding item for commissions- originated the Cashier's Check of Banco Elca S.A., N° 15045 for two hundred three thousand four hundred fifty- two dollars and fifty cents ($203,452.50); on February 25, 2004 he approved a direct credit in favor of Bauza Casa Grande S.A. for one hundred fifty thousand dollars ($150,000.00) -which after deducting the corresponding item for commissions- originated the Cashier's Check of Banco Elca S.A. N° 15046 for one hundred forty-eight thousand eight hundred sixty-five dollars ($148,865.00); on February 25 he approved a direct credit in favor of Por Larrañaga S.A. for one hundred seventy-five thousand dollars ($175,000.00) which -after deducting the corresponding item for commissions- originated the Cashier's Check of Banco Elca S.A.

No. 15047 for one hundred seventy-three thousand six hundred seventy-seven dollars and fifty cents ($173,677.50); on February 26, 2004, approved a direct loan in favor of La Gloria Cubana S.A. for one hundred ninety thousand dollars ($190,000.00), which—after deducting the corresponding commission item—resulted in Banco Elca S.A. Cashier's Check No. 15049 for one hundred eighty-eight thousand five hundred forty-nine dollars and seventeen cents ($188,549.17); on February 26, 2004, approved a direct loan in favor of Mobiliaria Activa Dos Mil Ocho for one hundred eighty-five thousand dollars ($185,000.00), which—after deducting the corresponding commission item—resulted in Banco Elca S.A. Cashier's Check No. 15048-4 for one hundred eighty-three thousand five hundred eighty-seven dollars and eight cents ($183,587.08); it must be said that all of the loans were approved unilaterally by the accused C, without observing the established procedures as has already been explained. In this regard, J. indicated that for the year 2004 there were loans that had not followed the procedure since there were operations that did not go through the credit committee and were signed by the accused C. or Mr. H. He says he did not realize when they were approved, but later found out that those operations had some degree of relationship with C., this through some minutes of A. in which several companies with loans in Banco Elca were discussed and which were corporations (sociedades) of the accused A.. He was shown evidentiary file No. 32 and makes the observation that, for example, in that operation it is not specified whose the fiduciary guarantee is; the loan in favor of Sociedad Por Larrañaga S.A., visible in evidentiary file No. 30, is in the same situation. Witness M. points out that credit operations were carried out that did not go through the credit committee and had no analysis whatsoever; they simply came approved by Mr. C, Mr. H., or Mr. J. Witness M. indicates: “not all loans complied with these steps; there were loans that were approved by order of the presidency or management; they said they were important clients and that they would collect the documents later.” In his testimony he points out how some loans sometimes did not even have a guarantee and that some were direct loans in the name of C.’s companies, operations that were not known to the credit committee nor to the Board of Directors, nor did SUGEF know of them, as should have been done with operations related to the bank’s officers or shareholders according to what H and E. said. The loans to Punta Palmira and to La Gloria Cubana S.A. were processed by management and approved by C.; they were not known to the credit committee; the first operation was not paid off. In the same sense, he mentions the corporation (sociedad) Por Larrañaga and Bauza Casa Grande where the guarantee was also not granted and it was also not paid off. As an interesting fact, he tells us that upon perceiving the disorder he brought it to the attention of the accused A., especially worried about whether SUGEF would arrive, but the latter told him not to worry because he would contribute his own guarantees. The statement by Mr. O. is noteworthy when, as a result of the respective studies carried out by the SUGEF inspectors, they found a series of irregular loans; under these terms he indicates: “There were a series of loans whose risk profile was high, approval processes did not fit the bank's own policies, several people participating in approval lacked a study of payment capacity; several loans were set up through C.’s management; the process did not fit; they were granted to companies related to him or through management, without analysis of payment capacity…” He points out that the loan approval policy is specific to each entity; SUGEF cannot impose it but can demand that clear policies exist. In the case of Banco Elca, three signatures were required to approve a loan and in some cases that was not fulfilled; there was no payment plan or payment adjustments without any support. For his part, C,. indicates that, according to the reports received, it is determined that some loans related to A. were delinquent, had been extended without technical studies, there was no financial information on the debtor, they had been approved by only one person, contrary to policies, etc. It is evident from the foregoing that practically the majority of Banco Elca’s employees, according to the functions they performed, were able to verify the irregularity in the approval of the loans in favor of C.’s aforementioned corporations (sociedades) but, precisely because of their hierarchical relationship, there was little they could do when they detected an irregularity of that nature; irregularities that were indeed determined by the SUGEF officials who participated in the respective analysis and which is also reflected in SUGEF report 2520-2004, which, as relevant here, states: "As a result of the study conducted of the loan portfolio as of May 31 of this year, it was determined that the Bank has granted loans to companies linked to Mr. C. in the amount of 871,449.8 thousand, equivalent to $2.0 million. Through the review of the credit files of these debtors, it was observed that Mr. A. participated in the approval of at least five loans granted to this group of companies and in the cases of Inversiones Kiona San Francisco S.A and Punta Palmira S.A, only the approval of Mr. C. is recorded, which goes against sound banking practices and the provisions of that Bank's credit policies, which establish that for the Credit Committee agreements to be final, three A signatures, or two A signatures and two B signatures, must be present." As relevant information, it is indicated in that same report that the amount loaned to that group of companies exceeds the limit of 20% of capital and reserves; likewise, some of those loans showed significant delays and were subject to extensions or readjustments without the respective files containing the technical justifications for this.

The defense of A. has alleged that in those cases the accused intended only to initiate a circulated committee and that if this did not occur it was due to a breach of duty by subordinate officials. However, that assertion is not acceptable. Note that it was not an attempt to initiate a circulated committee but rather that A. signed and sent or gave the documentation to the operational officials and not to an executive to collect the remaining signatures. Indeed, M. and S. state that if there was opposition to those procedures, the loan would appear, the next day, approved in the system. Moreover, A. never pointed out, at the next session of the Credit Committee, that loans that began as circulated were missing from the minutes (according to his defense statement), which he could have done if that were the real situation—which it was not, according to the foregoing—given the control he had over the bank's affairs. Having proven the manipulation of the loans by C., in favor of his corporations (sociedades), it is necessary to examine what maneuver he carried out to divert attention from them. It turns out that once C. approves the respective loans and issues the checks for the amounts of money corresponding to each corporation (sociedad), he subsequently reverses them and issues five other checks for the same amount but in favor of Transamérica Bank & Trust Ltd. into an account of the corporation (sociedad) Bosques de Ayarco that A.—in the name of a corporation (sociedad) he controlled—had in that Bank. On February 27, 2004, this corporation (sociedad) issues a check for eight hundred eleven thousand eight hundred thirty-five dollars and sixty-seven cents ($811,835.67) in favor of the corporation (sociedad) Inversiones Tres Mil S.A., money that is credited to an account of the corporation (sociedad) Grupo Prisma Asem S.A., property of J.; in this way Banco Elca issues a debit note for that corporation (sociedad) and applies it to the cancellation of the loan that the accused C. had granted in favor of Inversiones Tres Mil. In this way the accused C. manages to cancel the loan that had been granted to Inversiones Tres Mil S.A. (see in volume V folios 1945, 1949 and 1952 and reports 451-DEF-454-04 and its extension 24 DEF-509-04/05).

VIII.2 Evidentiary analysis regarding J.: Regarding the accused J., the question we must ask ourselves is whether he indeed had any participation in the approval of the loan in favor of Inversiones Tres Mil, an entity for which he was its legal representative. The testimonial evidence cited so many times places Mr. J. within the hierarchy of Banco Elca, who together with C. and H. had the authority to approve loans, of course, following prior observation of the established procedures, which does not imply that he necessarily approved the loan to Inversiones Tres Mil S.A. on this occasion. The accusatory pleading establishes that on April 22, 2003, J. requested a loan from Banco Elca S.A., for an amount of eight hundred twenty-five thousand dollars ($825,000.00) in the name of the corporation (sociedad) Inversiones Tres Mil S.A. The accused F. in his investigative statement refers especially to that topic and when reviewing evidentiary file No. 36 makes the observation that it contains a series of anomalies, again requesting that a graphoscopic examination be performed on the "loan application" document attached to the evidentiary file. In this regard, the trial included the experts J.P. and M.O. who, upon examining folio 26 of evidentiary file No. 36, reached the conclusion that the signature preceding the loan application dated April 22, 2003, was not made by J. The foregoing implies, then, that it is not true, as stated in the prosecutorial accusation, that the accused J. requested a money loan in favor of his corporation (sociedad) Inversiones Tres Mil S.A. Regarding the approval of the loan, we have Report No. 451-DEF-454-04 which states: "The loan for Inversiones Tres Mil S.A was approved solely by H. as General Manager and E. as a board member, thus the procedure for the number of signatures established at Banco Elca S.A. regarding the number and quality of signatures was not followed." On this particular point, it must be noted that both Mr. G. and Mr. E, when they gave their statements, were emphatic in pointing out that they never approved that loan and the signatures preceding the respective document are not theirs. From what has been stated, and regardless of whether Mr. H. signed the approval of the loan in favor of Inversiones Tres Mil S.A. or not, it is concluded that the accused J. not only did not sign the loan application but also did not participate in its approval. On the other hand, the question arises as to why, then, the money resulting from the loans approved by C. in favor of the corporations (sociedades) Punta Palmira, Por Larrañaga, Bauza Casa Grande, Mobiliaria Activa 2008, and La Gloria Cubana, was finally credited to Banco Elca account No. 122006481 belonging to the corporation (sociedad) Grupo Prisma Asem S.A., whose legal representative is J. The answer to that question is provided by H. when saying that "J. was so foolish as to lend the name of his companies to help C. and checks were issued to him to cover some overdraft or some problem." Another aspect the witness highlights when shown evidentiary file No. 91, folios 148 and 149, is that those documents signed by him are issued in the name of J. and it is one of the cases where J. lent his companies because Mr. C. needed money. He literally stated: "Mr. J. was not paid with checks from Bosques de Ayarco; if checks were issued to him from that account, it is because Mr. C. needed the cash for something." These statements answer the question of why, even though J. was not in the country on February 27, 2004 (see migratory movements and passport of the cited accused), the money is still transferred in favor of Inversiones Tres Mil S.A. An aspect we must not overlook and which is related to the above, is the goal pursued by C. when he orders the sum of eight hundred eleven thousand eight hundred thirty-five dollars and sixty-seven cents ($811,835.67) to be deposited in favor of Inversiones Tres Mil S.A. into the account of Grupo Prisma Asem S.A. Recall that the loan granted to the corporation (sociedad) Inversiones Tres Mil S.A. was initially guaranteed with four investment certificates from Sociedad Inversiones Savinelli (in conciliation proceedings) and that at a certain point the accused C. redeems them early, thus leaving the Inversiones Tres Mil loan unsecured. From that point on, it is that, in an "intelligent" or skillful manner, C. seeks to obtain the money to cancel that loan, and what better way than through the granting of loans, whose funds came from Banco Elca’s coffers, to five corporations (sociedades) of his property (see volume XI, folios 4731 onwards, 4749 onwards, 4764), a point already explained above. For greater understanding, it is worth recalling what was indicated by M., SUGEF supervisor who participated in the intervention process of Banco Elca: "Inversiones 3000 arises from reclassifications of several debtors (Punta Palmira, Bauza Casa Grande and others). Those operations were set up under the cover of five checks issued in favor of those corporations (sociedades), but the treasurer who worked for Elca, who was J., told J. that those checks had been replaced by other checks, and the investigation revealed that, and that they were for the same moment. They went out to an account through Banco Interfin to Transamérica Bank, which was Interfin's offshore; they return partially to the bank, return to an account of Grupo Prisma represented by J., and cancel the Inversiones 3000 operation that was J.'s. In two of the five cases the checks were signed by C.. In report 2520 the five debtors are included, and I did not participate in that study, but I do remember having seen in that report that the five were reclassified to category E." That is, there is evidence determining that F. lent his accounts, that the signature appearing above his name on the loan application was not made by him, and those who sign approving the loan deny that those are also their signatures. At the time of the disbursement of the money, F. was not in the country, so there are signs of credibility for his exculpatory statement, as will be addressed next.” In sum, if it were, as the appellant claims, a simple banking operation aimed at prolonging the life of a loan at risk of becoming uncollectible, the situation would certainly not have the gravity attributed to it. What happens is that, contrary to what the defense stated, the succession of loans did not occur to try to palliate the consequences of a bad decision, but rather a misappropriation. Indeed, as the lower court (a quo) explains at length, A.'s subsequent solitary conduct—he who authorized said covering loans—apart from the circumstances in which the original loan to Inversiones Tres Mil was processed, made it clear that from the beginning the accused intended, using this corporation (sociedad) of F. and E., to take possession of eight hundred thousand dollars that he knew would not be collected, since the guarantees would be redeemed early by A. and the account would be settled using other loans to five of his corporations (sociedades) that he himself authorized and which, as expected, had no payment capacity whatsoever. That is, that loan that the defense says was granted regularly, later turned out to be neither requested by F. and E. (who at that time was not in the country but lent his companies to the accused for his maneuvers), nor approved by the other officials whose duty it was to do so (folio 17356). At the end of the entire ruse, A. had unilaterally approved loans for nine hundred five thousand dollars, which had indeed left the Bank's accounts. It is for these reasons that said actions, together with those relating to Mr. L., were considered to constitute a crime of fraudulent administration (administración fraudulenta), by virtue of which eight years of imprisonment were imposed on the accused.

Regarding this, not only are the same irregularities present in the granting of the loans that were fictitiously granted to Mr. B., who had not requested them, but those fraudulently granted funds left the Bank. In this regard, the judgment states: “Regarding the loan to L., it was accused and proven that on November 30, 2001, the Credit Committee of Banco Elca S.A. approved the granting of credit operation No. 30009271 for one hundred one thousand eight hundred fifteen dollars and thirty-one cents ($101,815.31) in his favor to cancel three previous operations that the same debtor had with Banco Elca S.A. and which were delinquent, cancellations that were, indeed, carried out. That operation was guaranteed with a second-degree mortgage guarantee on B.'s home, which also supported a first-degree mortgage in favor of Banco Interfin. This was executed through a mortgage foreclosure proceeding, on June 19, two thousand two, with Banco Elca S.A. being awarded the property. However, credit operation No. 30009271 was not honored by Mr. B., with a credit entry recorded for five hundred seventy-two dollars and seventy cents ($572.70) on December 11, 2001, corresponding to the remaining balance of the same operation after canceling the delinquent operations that said gentleman held at the bank, and an amortization for five thousand three hundred fifty-one dollars and sixty-five cents ($5,351.65) on May 31, two thousand two (which was used only to cancel interest on operation 30009271). The amortization money originated through a fictitious loan that appears in the electronic system of Banco Elca S.A. under operation No. 300010099 granted to Broitman Feinzeilber who, as he stated in debate and his statement being credible, never requested such financing. Likewise, on July 31, two thousand two, in the credit records of Banco Elca S.A., the granting of credit operation No. 300010416 for one hundred fifty-six thousand dollars “in favor” of L. was recorded for the purpose of financing the payment of the property acquired by Banco Elca through the auction scheduled for June 19. Said loan was fictitiously set up as it was not requested by said debtor. On October 30, two thousand two, the three indicated operations, for a total amount of two hundred seventy-four thousand four hundred thirty-four dollars and seventy-four cents ($274,434.74), without any justification, were accounted for as settled against a “suspense account” No. 184-02-2-00-04 and, from then on, a series of irregular accounting movements of this balance began. On November 21, 2002, another fictitious credit operation was set up, No. 300011029 “in favor” of B. for $274,572.89, which was approved by C. and J. (facts for which he is not being tried). In turn, this operation, that is No. 300011029, is cancelled on December 23, 2002, by credit operation 300011260 granted in Banco Elca S.A. in favor of Sociedad Inversiones Santa Damiana S.A., without it being possible to determine who approved such loan. The corporation (sociedad) Santa Damiana has as president, representative, and unlimited general power of attorney, the accused C. Operation 300011260 was granted for one year, maturing on December 23, 2003, but was unjustifiably extended by C. for three more months from its maturity, and on March 31, 2004, he extends it again for three more months under the same irregular conditions. To date, said operation is overdue and there is no possibility of proceeding with its executory collection since, as “guarantee,” there is only a photocopy of a “bill of exchange” for two hundred eighty-seven thousand nine hundred seventy-eight dollars and twenty-four cents ($287,978.24), supposedly subscribed and endorsed by “the representative” (at that date) of said corporation (sociedad), V., secretary of Bufete Castro Garnier, and presumably guaranteed by Mr. A., the very persons who reject the legitimacy of such document. The only amortization recorded in the payment history of this loan corresponds to the credit entry made on July 28, two thousand three, for an amount of one hundred fifty-nine thousand nine hundred ninety-two dollars applied to principal ($141,657.37) and interest ($18,334.63) of said debt, leaving a pending balance to pay of one hundred forty-six thousand three hundred twenty dollars and eighty-seven cents ($146,320.87), which as of January 5, two thousand five, amounted to the sum of one hundred sixty-two thousand eight hundred seventeen dollars and twenty-six cents ($162,817.26) corresponding to the principal balance, plus interest and default balance, which the accused A. has not paid as of this date, to the detriment of Banco Elca S.A.

IX.1.- Evidentiary analysis: During the days that the adversarial proceeding lasted, sufficient testimonial and documentary evidence was received which ultimately corroborates the hypothesis of the Public Prosecutor's Office. Again, the observation is made that many of the witnesses we will proceed to examine have already been cited in other recitals (considerandos) when referring to specific topics. From the foregoing, it is possible to determine: (i) on November 30, 2001, the Credit Committee of Banco Elca (see evidentiary file 34) approves for L. operation No. 30009271 for $101,815.31. Said loan was used to cancel three credit operations he had with Banco Elca. Operation No. 30009271 was not paid off by Mr. Broitman; only two payments were made, one of them for interest amortization for $5,351.65; (ii) as of July 31, 2002, credit operations No. 300010099 and No. 300010416 had been fictitiously set up in the name of Mr. B.; (iii) on October 31, 2002, the real operation and the two fictitious ones were accounted for as settled. With the balance of those operations, operation No. 300011029 was fictitiously set up, which Mr. L. also had not requested; (iv) credit operation No. 300011029 is cancelled on December 23, 2002, through operation No. 300011260 granted by Banco Elca in favor of the corporation (sociedad) Santa Damiana S.A., whose representative and unlimited general power of attorney is C. That operation was extended twice by the same accused and has not been paid off to date… The cited testimonial evidence summarizes the maneuver carried out by the accused A. when he proceeds to approve credit operations No. 300010099, No. 300010416, and No. 300011029 that Mr. L. had fictitiously requested, which is corroborated by B. himself when saying that after 2002 he never again made loan applications to Banco Elca. It is also highlighted how A. grants a loan No. 300011260 to the corporation (sociedad) Santa Damiana of his property with the sole purpose of cancelling the fictitious operations. Not content with that, the accused A., without justification and bypassing all procedure, proceeded to extend the loan of the cited corporation (sociedad) twice; all this led to SUGEF reclassifying that loan to risk category E, causing great harm to Banco Elca (see volume V, folio 1705).” (folios 17365-17372).

Then, as proven in the judgment, starting from when Banco Elca was awarded B.'s house, a thing that settled his debt with the Bank or converted it into a marginal one, A. “granted” him an amortization loan for $5,351.65 and another for $156,000 to finance the property acquired by the Bank, which he never requested. Later, for an amount of $274,434.74, another loan was granted that cancelled the real operation and two fictitious ones that left the Bank. This in turn was accounted for as settled by another fictitious operation that covered up that fraud, consisting of another loan that was falsely claimed to have been requested by B., this time for $274,572.89. Then, this was cancelled by a credit operation for $287,978.24 granted by A. to the corporation (sociedad anónima) Santa Damiana, belonging to the accused, which provided a bill of exchange (whose original was not found), subscribed by two people who rejected its legitimacy. That last operation was unjustifiably extended by the defendant on two occasions for three months each time, confirming his participation in the criminal scheme. In the end, applying the payments registered in the account, $162,817.26 of the principal balance were left uncovered. In such a way that, as is evident, it is not true that the only outflow of funds occurred when the loan was granted to Mr. Broitman Feinzilber, but rather after this, disbursements occurred in a swell of misappropriations that, on the one hand, attempted to conceal the previous irregularities, and, on the other, deepened the defrauding of the banking entity's assets. The ground for appeal is without merit.

X.-In the tenth ground for appeal, it is argued that it is impossible to execute a fraudulent administration against oneself, since the owner of Banco Elca was the accused A., who exercised ownership over that entity through a series of corporations (sociedades) also his own. To ratify this, the defense counsel resorts to transcribing some parts of the judgment where this was held to be true. Due to this situation, he indicates, those harmed by a fraudulent administration are the company's shareholders, which in this case do not exist, but rather it is the defendant himself. Regarding those irregular deposits, in which a transfer of ownership in favor of a bank occurs, Costa Rican legislation is sparse. It must be taken into account, he adds, that in the case at hand, the Court considered the situation of the savers and investors who had their funds deposited in such entity. This money, however, becomes part of the bank's assets. Next, the complainant engages in a disquisition on the nature of regular and irregular deposits, which are characterized by the depositary's duty, not to preserve the same thing (as in the case of a regular deposit), but rather an equivalent amount of the same quality and kind. This creates a “double availability,” in which on one hand the depositary becomes the owner of the good, and the depositor can withdraw it in turn. A consequence of this is that the loss of the goods is suffered by the depositary, who acts as their owner. Therefore, since A. is the owner of the bank in question, the goods received on deposit were his property and he could not administer them fraudulently to his own detriment.

The reproach is not acceptable. The appellant's argumentation starts from a fallacy or poor understanding of the figure he discusses; namely, that by becoming the owner of the deposits, the depositary administrator or the person who owns the entity that receives them can dispose of them at will, without any responsibility. To begin with, it must be clear that when it is said that in irregular deposits the depositary is obliged to deliver a similar quantity and of the same quality of the goods received, this does not mean that he becomes the owner of them, but rather that he continues to be a depositary. What happens is that, due to the type of goods usually received in such transactions, these cannot be preserved in their individuality, but rather are materially mixed, NOT juridically (as they continue to belong to the depositor), with the rest of the available patrimonial assets, whether these are destined for investment, for lending, or for simple hoarding. But, as is obvious, the same happens in every “regular deposit” in which the goods are fungible, since the fact that the depositary later returns different bills that are not the same ones that the depositor previously handed over, does not mean that in that act he had become their owner. Thus, the fact that he can dispose as owner of the goods that were handed over to him, neither suppresses nor much less implies that he continues to be their depositary and the depositor their titleholder. That is, the goods still remain the property of another. In the case under discussion the matter is palpable. If the sophism displayed in the ground for appeal were correct, it would imply that the goods or values received by A. through the Bank became his property, as the challenger maintains.

That is, that they belonged to him, which is very mistaken, because it is notorious that this was not the intention of the depositors, who delivered them with the hope and the Bank's commitment to return them in a timely manner with a profit. This was not only known by the depositors, but was a matter of common sense; especially for the defendant, who systematically acted to circumvent those commitments. In a previous decision, to which both the cassation judgment and the appellant allude, this office stated: "Article 222 of the Penal Code, which penalizes fraudulent administration (administración fraudulenta), establishes a special own offense, since it delimits the possible circle of perpetrators to that person who 'for any reason, having in their charge the management, administration, or care of another's property, harms the owner by altering in their accounts the prices or conditions of contracts, feigning operations or expenses or exaggerating those that have been made, hiding or withholding valuables or employing them abusively or improperly'. It is a special own offense because not just any individual can commit it—as the perpetrator—but only one who manages, administers, or cares for another's property and performs one of the typified conducts. The basis for this particular punishment is that the active subject assumes tasks or functions over assets that are partially or totally alien and, therefore, a series of legal duties weighs upon them that they infringe with their actions. The legislator also takes into account the existence of a bond that entails the trust placed in the agent by the passive subject, who expects loyalty and correctness in the handling of their property, rights, and patrimonial expectations. In summary, the defense attorneys N and R argue that the defendants did not exercise functions of administering the assets of the savers and investors, but rather committed themselves to them as debtors of an obligation; and that the funds, once deposited in Banco Germano Centroamericano, became the exclusive property of the latter and could be destined for various uses. On this topic, it is prudent to make some reflections. Banking activity, both in Costa Rica and in other nations, is strictly regulated in order to ensure the healthy economic development of the country and, among other reasons not of interest to delve into here, because it is essentially carried out using others' capital and not that belonging to the owners or shareholders of the bank: 'The referred activity is carried out with others' capital or predominantly others' capital. The origin of this basically comes from the public (depositors or savers) with which financial intermediation is managed. Thus, funds are captured by paying an interest rate to lend it at a higher one and profiting from the differences between both. Its determining characteristic results from the otherness of the lendable funds and object of financial intermediation. That intermediation does not use or risk 'own' capital (as happens in other activities) but one of collective origin, definitively finite, quantifiable, unique in the country, and non-substitutable.' (PORCELLI, Luis A., “Private financial entities. Functionality and history of their regulation”, in Crisis. Liquidation and bankruptcy of banks. Responsibility, Ediciones Jurídicas Cuyo, Buenos Aires, 2001, p. 347-348). These distinctions must not be lost sight of, as otherwise it is easy to err when assessing the nature of the functions fulfilled by banking entities. They always work with others' capital or assets, and that character of otherness does not disappear at any moment nor can it be confused with the capital contributed by the partners or shareholders of the company (which, of course, can also be the object of fraudulent administration). In this species, both Germano International Bank and Banco Germano Centroamericano captured resources from the public, through different means: deposits in savings or checking accounts; trust commissions, FOPEX and FODEIN funds, and monies that had to be paid to the Central Bank for the purchase of foreign currency or to the client's creditors abroad. The contracts for savings and checking account deposits have been classified by doctrine within the concept of "irregular deposit" since, contrary to what occurs in a regular deposit, the depositary is allowed to make use of the goods. It is ruled out, then, that they constitute a mutual contract or money lease (see DÍAZ RAMÍREZ, Enrique, Banking Contracts, Temis, Bogotá, 1993, p. 92), which would indeed mean a displacement of assets. That the sums deposited in checking or savings accounts maintain their character of otherness in our context (i.e.: they belong to whoever deposited them), is evident from the provisions contained in articles 529, 612, 617, 630, and 631 of the Commercial Code and Chapter V, Title III of the Organic Law of the National Banking System, No. 1644 of September 26, 1953, and its reforms; because although the bank is allowed some discretionary use of the funds—however: with various restrictions—, the depositor continues to be the owner of the monies, they can be seized or frozen by judicial order, and they constitute an active part of their assets and not an "account receivable." Hence, article 3 of the cited law No. 1644 defines the function of banks in this matter as that of "safekeeping and administering the banking deposits of the community"; a definition that, in reality, even if it were not in the law, would be extracted from the other norms previously cited and ultimately only serves to describe a phenomenon." (see vote 231, of 8:45 a.m. on April 9, 2003). So, apart from the impact on public trust, on finances in the national market, and other human repercussions, there was indeed a breach of a legal duty towards the depositors, who even admitting the thesis of "double availability", could not dispose of their goods or valuables; even if their profile were reduced to a mere credit right, which would have been equally thwarted. Certainly, also in this latter case, in which that right of restitution would be diminished to a credit right, it cannot be overlooked that its realization is contingent upon the good administration of the goods or valuables delivered, so that even under such thesis the administrator cannot behave regarding them as if they were the "owner," because that would undermine the effectiveness of the credit; but, more importantly, the understanding of the parties is that the goods continue to be part of the depositor's assets. Hence, the aforementioned jurisprudence already issued by this Chamber on the matter, which the litigant tries to argue does not apply in this matter, must be reiterated and considered applicable.

XI.- Next, as a substantive claim, it is pointed out that the judgment erroneously applied the aggravating circumstance of estafa (estafa) to the offense of fraudulent administration (administración fraudulenta). Furthermore, it says, the following were not taken into account "...comprehensively, the personal circumstances of Mr. A, for example, his age, the fact that he has three young children who require the presence of their father, his professional capacity and his importance as an active member of society, his successful trajectory prior to the 2002-2004 period...", as well as three operations attributed to him (those of Inversiones Tres Mil, the one related to B., and the one related to Kiona San Francisco) did not cause an expense to the Bank, as well as the other ends of Article 71 of the Penal Code. The objection is not receivable. When setting the scope or margins of the sanction, Article 222 of the Penal Code refers, without exceptions, to Article 216 of the same. That is, the penalty for estafa (Article 216) is applied, without modification or any discrimination, to fraudulent administration. This unquestionably also includes the aggravating circumstances contained in the final paragraph of the cited Article 216, regarding which the legislator made no distinction, so it is not appropriate to make one in the judicial arena. Consequently, there is no irregularity, but it is fully correct that, if the aggravating hypotheses consigned there were present, these were also applied in the case of the fraudulent administration incurred by the defendant A. On the other side, when setting the corresponding penalty for these illicit acts, the a quo exposed: "For purposes of the penalty to impose, we must refer to considering VIII.1, to indicate that in this case we are also in the presence of the crime of Fraudulent Administration. While it is true, on that occasion the events occurred between February 25 and 26, 2004 -approval of the loans in favor of the defendant's companies Punta Palmira, Bauza Casa Grande, Por Larrañaga, La Gloria Cubana, and Mobiliaria Dos Mil Ocho- and the events concerning considering IX are framed between the months of May to December 2002 and January to March 2003, in reality it is a single crime of Fraudulent Administration of greater amount. According to jurisprudence, we are before a single alien estate, in this case entrusted to the President and owner of the bank Elca S.A., who had the administration of the resources invested in that banking entity by the various clients and investors, who with his actions, such as approving extensions of loans granted to companies belonging to him, caused great harm. In the case of Inversiones Santa Damiana, by approving the extensions unjustifiably, as of January 5, 2005, and according to the studies carried out, it presented a balance of one hundred sixty-two thousand eight hundred seventeen dollars with twenty-six cents, money that ultimately has not been paid, thus harming the assets of the Elca bank and those of its creditors, besides the fact that it cannot be demanded because it lacks a guarantee to back it. For all of this, the overall penalty imposed is eight years of prison, which takes into account the different moments in which the cited unity of action manifested itself (five loans in favor of A's companies, this operation, and the loan in favor of Inversiones Kiona), so a lesser penalty is not justified as the harm caused was very large. The Tribunal takes into consideration to set the penalty within the established limits, the following: the circumstance of the severity of the harm caused by the defendant, who takes advantage of his hierarchical position in the Elca bank to unilaterally and unjustifiably extend, without observing the respective procedures, the credit operation of Inversiones Santa Damiana, a company of his property, an operation that, as has already been indicated, lacks a guarantee to back it since the only thing that exists is a copy of a bill of exchange whose signatures were questioned. All aspects which, considered as a whole, lead the Tribunal to impose said penalty, deeming it to be the one that conforms to the proportionality that must exist between it and the impact on the legal good at stake and other demonstrated circumstances, in relation to the possibility of achieving the rehabilitation of the accused so often referred to." (folios 17379-17380). In the face of these circumstances, the issue of the accused's age or health (which, as stated before, can be assessed at the sentence execution stage) or the need of his children (the same as those of any other father or mother deprived of liberty), are of relative importance. Finally, his role in society and his successful trajectory would rather be elements that would increase his reproachability, both because they made it even less necessary for him to incur in these acts to secure a comfortable life for him and his family, and because he rather used these personal antecedents to deceive his victims. Regarding the three operations in which, according to the argument, no expense was generated for the Bank, this is an argument that has already been discredited, showing that there was indeed such an expense. To conclude, as national jurisprudence has repeatedly stated, the various parameters contained in Article 71 of the Penal Code for setting the sanction must be weighed insofar as they are pertinent to the case; because, if they are not, they lack relevance and turn that exercise into a mere ritual. In the present matter, with the stated exception, the appellant omits indicating which are the aspects that were not assessed and in what way they would have changed the imposed penalty, making the argument show no procedural interest.

XII.- Regarding the financial statements in which A. delivered, according to the judgment, false information to SUGEF, the defender claims that such financial statements were not incorporated as evidence into the debate. It is said in that judgment that these are found on a compact disc on file, but they were not presented to the debate nor shown. Second, he adds that it is not stated which indexes the defendant altered, nor which data or reports were false. Third, he says that qualifying certain acts as "fictitious" or "fraudulent" is slanderous and was done before presenting the facts; fourth, that it was not demonstrated that the way in which the back-to-back loans were financed was illicit. Fifth, the complainant says that the apparent irregularity of the defendant's actions stems from not having fulfilled the conditions that SUGEF imposed on him to carry out those back-to-back operations: that the related legal operations be complied with (which was done, because it is something permitted in Costa Rica); that the principle of knowing the client be respected (which is based on norms preventing money laundering, a thing not accused here); and, that the funds come from a source external to the Bank (which finds no basis in any law). Consequently, no infraction was committed. The reproach is not addressable. To begin, the financial statements that the appellant misses were indeed available in the process, without the ritual act of exhibiting the compact disc containing them being necessary to satisfy the procedural duty of making them available to the parties or allowing them to be confronted. In cases like these, just as with documentary evidence, it is enough to specify in which piece the information is and where it is located, leaving it to each party's discretion to go and review the document or file. If during the debate he had such concern, he should have raised it before the a quo, so that the latter could give him the mentioned disc, in order to corroborate its content. Moreover, this is still possible. But the fact that the disc was not materially opened or exhibited does not mean that the information of the accounting statements was fabricated or illegally incorporated into the evidentiary stock. With respect to the alleged lack of explanation by the a quo of which indexes were altered and whose data were false, the defender is mistaken. This is explicitly established in the judgment. Thus, at folios 17417-17418, it is said: "...once those operations were carried out and recorded in the bank's accounting records, the month-end reports were prepared, that is, closing as of May thirty-first, two thousand four, which the following day, that is, June first, two thousand four, A. sent to SUGEF, and so Notes Report No. 50-DEF-506-04/05 from folios 3746 to 3750 of volume IX, pointing out that 'On June 1, 2004, Banco Elca sent official letter PE-017-04, which attaches the "Complementary Adjustment Plan to the Strategic Plan", which informs about the increase in the loan portfolio through the granting of these "back to back" loans' (cf. folio 3748 front); so having observed such documents (cf. folios 10109 to 10122 of volume XIX of the main file, in the evidence file section No. 83) it is denoted not only that the missive PE-017-04 is signed by A. himself in his capacity as Executive President of Banco Elca S.A. (cf. folio 10110 front) but that in said Strategic Plan it is indeed warned: 'Together with this project, we are sending the projected Financial Statements, with the effect on them of: a) the constitution of additional provisions, b) the new loans granted, and c) the payment schedule for capital contributions. These projections also show the viability of this proposal and its effects on the financial situation of the bank, particularly what it will have on the solvency and asset quality indicators.' (cf. folio 10119 front) and, coupled with the above, among others, was attached: 'On magnetic media, the projected Financial Statements including the financial indicators' (same folio). Which are found on compact disc on file. That is, the defendant A. consummated the end he had proposed, and which the violated norm establishes, that is, delivering to SUGEF all that financial information seeking to show a healthy financial position, when the truth was that all of it was based on that fictitious movement of twenty-three million eight hundred thousand dollars ($23,800,000.00) in assets and liabilities, and with a supposed profit of one million dollars ($1,000,000.00) as generated commissions." It is clear then that the judgment did state which were the falsified data in the indexes and in what sense they were false. On the other hand, the topic of whether certain expressions that the defender deems hasty for being prior to the evidentiary reasoning of the judgment has already been resolved pages ago. And, the question of whether the funds used in the back-to-back operations were of licit origin or not is irrelevant regarding the crime under discussion, which consists of having provided false data and reports to SUGEF, with the intention of concealing the true financial situation of Banco Elca. As for the final point, it must be said that the conditions demanded by the Superintendencia General de Entidades Financieras (SUGEF) as requirements to soundly execute the back-to-back transactions may respond to various reasons, some of which are not being discussed in these lines. However, there are several considerations to make in this regard. One is that precisely Elca bank was being imposed such qualities in those operations, given its precarious and suspicious situation, for which SUGEF was proceeding with more zeal in what concerned it. Then, it is undeniable that with its activity, that supervision aims to guarantee the stability of the national financial market and its reliability, which A. and his bank were undermining, with the final result already known. Three, A. is not being sanctioned in this regard, neither for disobedience, nor for a simple banking infraction (as the defender says), but for having consigned false information in the reports to that control body, seriously harming not only public trust in the national financial market, but also preventing SUGEF from taking earlier immediate precautionary measures to reduce the particular and social harm that was derived from the irresponsible management that led to the Bank's bankruptcy.

XIII.- In the thirteenth argument, the defender claims that an expansive interpretation cannot be made of the criminal definition contained in subsection b) of Article 158 of the Organic Law of the National Banking System, which penalizes the delivery of false reports or data that tend to conceal the true financial situation of a banking entity. Consequently, if what A. delivered was a "plan" and not a report, about a projected financial statement and not current data, besides the fact that the vulnerability of the Bank's loan portfolio, which SUGEF already knew, could not be hidden from it, the defendant's conduct could have constituted an administrative fault, but not a crime. The appellant is not right. Whether called "plan", "projection", "report", or simply "document", the memorial sent by A. to SUGEF, as seen above, contained information (that is why it is a report) on the transactions whose execution authorization was being requested, including: "a) the constitution of additional provisions, b) the new loans granted, and c) the payment schedule for capital contributions", and stating that: "these projections also show the viability of this proposal and its effects on the financial situation of the bank, particularly what it will have on the solvency and asset quality indicators." So, it was not simply that they were making idle or unfounded forecasts or auguries of the returns from such proposed transactions, but rather that based on the data provided (which later proved false), it was estimated in said report that a strengthening of the weak conditions in which the Bank found itself would be obtained. These, although known to SUGEF, did not include, needless to say, that the data of the operations they were asking to authorize were false, that is, that the prospects for improvement and viability that the Bank showed through that means were also false, which resulted in the truth in that essential aspect being concealed from the authorities. That is why, unlike what the petitioner argues in favor of his client, the Chamber does not believe that this person's conduct fit a mere administrative fault, but rather it is categorically demonstrated that it was a criminal action.

XIV.- As the penultimate reproach, the defender indicates that, despite the fact that the judge of the intermediate procedure agreed to the division of the debate, so that the setting of the penalty would have an exclusive phase, this was not carried out, because the Tribunal considered that the defense had not offered evidence regarding such necessity. He then claims that this affected his client's rights, who could "...be seriously mistreated if the topic of setting the penalty is not given due attention". The claim is not receivable. To begin, because as the petitioner himself acknowledges, when that decision was made, the defense agreed with it and did not challenge it. Second, because even if it had been so, the appellant does not demonstrate the procedural interest for the debate to be held in the alleged two phases. Commenting that this allows paying greater attention to the judgment of reproachability, or that the accused may be mistreated if due attention is not paid, does not prove that this actually happened in this case. That is, he does not demonstrate the grievance he believes occurred, but rather argues in the abstract and not regarding the specific case. In this one, on the contrary, as this resolution has already established in each of the segments, careful handling by the a quo is observed when setting the sanction and a broad attitude of weighing the various relevant factors. The argument is dismissed.

XV.- The last claim raised by the defender refers to the severity of the penalty imposed on him. He documents his complaint with data from the 2005 Human Development report, which points out that the average life expectancy in Costa Rica (presumably for males) is 78.2 years. If A. is fifty years old and was sentenced to twenty-three years of deprivation of liberty, this would imply that two-thirds of the years he has left to live (or more, given the harsh conditions of incarceration), he would spend in prison. Those years, says the appellant, would probably be the most productive of his life. All this to the detriment of the rehabilitative function of punishment. With this, he argues, elementary rights of his client were violated, which is evidenced in the treatment the a quo gave him when referring to him and in emphasizing his unfavorable aspects. Therefore, he affirms, the appropriate course is to unify the penalties or reduce each one of them, so that the total is not so high. The argument is not addressable. In the first place, the topic of whether, due to the way of writing or presenting its reasoning, the a quo shows an indisposition towards the accused has already been decided previously. Secondly, in the present case, we are dealing with a summation of the penalties imposed for each of the four crimes committed by A. Thus, what is appropriate is not to question the sum of them (given that the triple of the greatest penalty was not applied, but the sum, which was more favorable for the defendant), but rather each one of the penalties, as was indeed done in this appeal and was opportunely dismissed in the respective segments, upon deeming that each one of the sanctions was correctly set. In fact, in no case were penalties imposed that approached the maximum; rather, the estafa and the fraudulent administration were slightly above half; for the use of privileged information, the minimum was imposed; and, for the supply of false banking information, one year more than the minimum and two less than the maximum was set. So, it cannot be asserted that the penalties were degrading or cruel. Now, a pretended unification is not possible, because this is only viable if it involves an ideal concurrence, a thing ruled out in this case as it is not a single action, or a material concurrence, in which case the triple of the highest penalty could be imposed on him. However, in such a case it would be more unfavorable for him than the summation applied, because while the latter yielded a total of twenty-three years in prison, the unified penalty of the concurrence under the rule of triple the highest would be twenty-four. Finally, it must be emphasized that it is true that the penalty has the purpose of rehabilitation, but the necessary margin for this is established by the legislator within the sentencing minimums and maximums; therefore, it cannot be said that, for example, in a very serious crime, in the case of an elderly person, because they have little time left to live, the sanction should even be less than the minimum. Such margins must be respected and the sanction adjusted within the parameters posited by Article 71 of the Penal Code, which orders considering not only the personal circumstances of the participant such as their age, but also the motives they had, the possibilities of adapting their conduct in accordance with the Law, the harm generated to the number of victims, and their behavior after the events, items in which, as has already been extensively explained, A. is in a position of reproachability.

XVI.- The resolution of this appeal must conclude by alluding to the documentary evidence offered in it and consisting of the document visible at folio 17564, which states that the percentage of return of their valuables to the legalized creditors is 74%, which proves, says the defender, that the defendant was no "looter." In reality, that document does not provide any element that would change the conclusions of the judgment that was challenged. First, because this would refer solely to the crime of fraudulent administration (administración fraudulenta). Not to the crime of estafa to the detriment of Night Glow sociedad anónima, whose credit did not form part of the liabilities of Banco Elca, nor to the use of privileged information, nor to the supply of false banking information, which also have nothing to do with the recovery level for creditors. On the other hand, with regard strictly to the fraudulent administration, the fact that there is a 74% recovery does not eliminate the willfully irregular dealings already amply described, which resulted in detriment to the savers, even if they have recovered three quarters of their valuables. And, to finish, it cannot be glibly affirmed that this is the total margin of recovery, given that the certificate itself says it is over the legalized credits, there being others whose legalization is still being discussed in court, so the final degree of recovery for the creditor mass is unknown. The appeal is dismissed.

XVII.- The co-defender Juan Carlos Sbravatti Montoya, for his part, alleges in the first argument of his challenging brief that the Tribunal set aside the demonstration of who is the owning partner of the societies (sociedades anónimas) Night Glow and Montañas Mágicas del Sur, since commercial legislation establishes the ways in which this is accredited.

“…the trial court must be certain as to who (sic) the partner is, for which it is not enough to rely on the refrain or routine phrase of everyday use such as ‘…that in criminal matters the principle of freedom of evidence governs (article 182 of the Code of Criminal Procedure)’.” The objection is in no way admissible. A legal rule is not a “refrain,” nor is it a “routine phrase,” but rather a prescription that the legislator has instituted to be obeyed. In this matter, to be applied in the criminal process. So, if, as the lower court (a quo) asserted, the aforementioned principle allows that, as has already been stated in these pages, the relevant facts or circumstances may be proven by any lawfully obtained means, the ownership of the shares of such corporations can also be proven, for which purpose the testimonies of Messrs. G. and H., as well as attorney R., were available, who, as already stated before, attested to who the owner of those corporations is. Consequently, there was suitable evidence to hold it as certain that the plaintiff who is the owner of those corporations is Mr. M.

XVIII.- The second objection consists of the appellant’s claim that the complaint (querella) lacks a specific charge of concrete facts, since the accused has the right to know what he is accused of, and it is a contradiction to affirm that the complaint is not “emulable” in its drafting, but that it allows one to know what the attributed facts are. The objection is not admissible. To begin with, it is not true that there is a contradiction between those last two assertions by the lower court. Something can be poorly drafted or not in the best way, and yet remain clear, as happens in the present case. Thus, the contradiction that the defense attorney alleges does not exist. Second, apart from the above, it must be taken into account that the reference facts were known to the parties, as they had also been set forth in the prosecutorial accusation, which resolved any doubt that might have existed. As if that were not enough, it must be remembered here that this was not a defect alleged by the defense, but rather it comes to claim it at this phase without being able to point out a concrete aspect in which, as a result of the confusion it criticizes, things were unintelligible and made the defense impossible, or why they were ambiguous or what confusion they gave rise to, as it claims happened. Lastly, it has also not been demonstrated that A. was sanctioned for an ambiguous or vague accused act, but rather that he was sanctioned in accordance with those acts that were delimited in the accusatory documents.

XIX.- As a third argument, it is said that documents issued by the Liquidation Board (Junta Liquidatoria) of Banco Elca, concerning transactions conducted with Inversiones Tres Mil and Grupo Prisma Asem, both corporations (sociedades anónimas) and represented by J., were excluded as useful evidence. Said evidence was important to demonstrate J.’s participation in the investigated acts. However, those documents were excluded because they had not been requested by the interested party, nor had the lifting of bank secrecy (secreto bancario) been judicially ordered in that regard. “…Banco Elca S.A. is a bank declared Bankrupt (sic) by a judicial resolution, consequently subject to a bankruptcy process. The distinguished Court does not analyze that, under that legal condition, Banco Elca S.A. lacks a Banking License…” It then provides some provisions of the Organic Law of the Central Bank (Ley Orgánica del Banco Central), none of which is directly related to the point under discussion, except 133, which establishes the duty of discretion and restricted handling of information. The criticism is not admissible. That last cited provision, rather, serves to reinforce what was held by the lower court; namely, the obligation of those involved in banking transactions not to reveal information related to the interested parties. So this generic duty, called “bank secrecy” (secreto bancario), does exist, so that, except by contrary judicial order, that information does not transcend to persons outside the transaction. The fact that Banco Elca was declared bankrupt does not signify an exemption from that duty or bank secrecy, as what is protected is the information relating to the persons involved in those transactions, who still have the right that said information not be disseminated, even if the Bank has been declared bankrupt. There is no doubt that such information reached that bank precisely as a result of its commercial activities, just as there is no doubt that, whether with that entity in bankruptcy or not, such clients have the right to have restricted access to their information protected. This being so, the Court correctly proceeded to exclude the alluded documents, since these, having not been requested by the rightsholder nor judicially ordered, infringed that duty of confidentiality and even the very provision that the complainant adduces.

XX.- As a fourth and fifth grounds, the defense attorney says that the documents originating from the Bahamas regarding the checking account of the corporation Bosques de Ayarco at Transamerica Bank and Trust, lacked the proper authentications and were not transferred following the chain of custody. He points out that this limited his client’s defense, and that it is not valid to say that, by having made use of said evidence, the defense had cured any defect it contained. The challenger is not correct. Certainly, the argument that, by having made use of them, the interested parties cured the defects of the evidence, is not valid, as it would imply that, however illegitimate it might be, by being used by the counterparty, evidence acquires legitimacy. However, that is not the reasoning of the lower court. It was concerned rather with the repercussions of the defects in the processing and transfer of that evidence, concluding that neither in one case nor the other did they have any relevance. In this regard, it pointed out: “Therefore, the defense would be correct in its initial argument (but not regarding bank secrecy since it is the law of the receiving state that must determine whether it exists or not, whether it is lifted or not, etc., without it being the national judge's place to decide this, and those foreign laws must be proven), but having made use of the evidence, it validated the formal errors and granted validity to it, such that this leads to the dismissal of the petition. As for the chain of custody of the evidence, no specific grievance is argued regarding it. It is on record that the competent authority of the Bahamas sent the documentation directly to the national Prosecutor's Office and the evidence is easily reproducible upon a new request, such that the argument again leads to worshipping forms for their own sake. Notwithstanding the above, it must be noted that even if the defense were given complete reason and all those documents were hypothetically suppressed, this would in no way affect the conclusions reached by this court and related, as will be indicated below, to the criminal liability of C. for the crime of fraud (estafa) to the detriment of Night Glow S.A., since that evidence bundle No. 91 (and its respective translation at folios 14958 to 15087 of volume XXV) only allows one to infer the final destination of part of the funds received by C., without this being necessary since, it having been proven that he received them and thereby obtained an unlawful pecuniary benefit (as will be analyzed in due course), the route the money followed matters little, because that mere receipt, the deposit into personal accounts, the non-credit in favor of the offended entity in Grupo Elca accounts (as the intervenors indicated in the documents at folios 9814 to 9816 of volume XIX and the authorities of Belize in the documents at folios 35 to 40 of the complaint file of Cori Consulting and Financial Services S.A. by qualifying the certificates issued with a date prior to that authorized for that bank to operate and raise funds as of dubious legality) and the non-return of the funds when required, determines that there existed both the loss and the undue pecuniary benefit, as elements of the objective elements of the crime: ‘...the sole lawful —non-unlawful— destination that could have been given to the assets was that imposed by the laws or the contracts signed between the banks and their clients; any other destination that does not derive from any of those normative sources is intrinsically and by definition, undue. Put another way and by way of example, the final use that can be made, in accordance with the law, of saved money is to return it to the saver (obligation arising from the contract and the law), or to transfer it to a third party in exceptional cases or else to retain it (e.g.: due to a judicially decreed seizure or immobilization). Thus, the thesis that the whereabouts of the funds is unknown is completely useless to demonstrate or suggest any lawful destination (the very fact that their location is unknown already violates the law) and rather demonstrates, without any doubt, that an unjust pecuniary loss was consummated as the counterpart of an undue economic benefit.’ Third Chamber, vote No. 231-2003 (the emphasis is from the original). Furthermore, there exists the independent source, which is the very statement of H. who stated —before being shown that file— that the money was deposited into the account of Bosques de Ayarco, a company that belonged to C. and was used to pay overdrafts of the same A., a statement that is supported by the OIJ reports that pronounce on the matter, also before the aforementioned file was received. Ergo, even if the entirety of evidence bundle No. 91 and its respective translation were hypothetically suppressed (which need not occur as there was validation of the non-absolute formal defects and an independent source for that information), the conclusions regarding the criminal liability of C. for the crime of fraud to the detriment of Night Glow S.A. remain unscathed, as will be elaborated upon in the respective section (whereas clause V).” (folios 17047-17049). Therefore, as the grievance actually suffered due to the handling given to that evidence, or that it was adulterated or devalued as a result, was not specified, the issue of the non-observance of the chain of custody dissipates. In this regard, national case law has been reiterative in indicating that a mere allegation that the chain of custody was not observed is insufficient for the ground to be upheld. It is necessary to demonstrate that some irregularity occurred and that it had repercussions on the quality of the evidence or its content, whether deteriorating or adulterating it. Thus, even if there were some anomaly, this would have no procedural interest if, as in this matter, those consequences cannot be determined, making it at most an administrative infraction, but without procedural interest for resolving the cause. However, what is truly important is that, as the lower court stated, hypothetically disregarding the cited documents, the incriminating conclusions against A. remain firm, since those pieces proved matters of little interest, such as the handling of the suspect's bank accounts, while the relevant circumstances they demonstrated were also proven by multiple sources independent of them. The grounds dismissed.

XXI.- In the following ground, the defense attorney proceeds to question almost all of the relevant testimonial evidence gathered at trial, disqualifying some witnesses for some reasons and others for other reasons. In his judgment, in summary, all of the witnesses are suspected of failing to tell the truth and of hiding something. To begin, he criticizes that credence was given to the statements of J., J., M., H., and M., since their participation in the events that occurred and their knowledge of the banking field were demonstrated. Then, he disqualifies G., R., F., and J., due to their relationship with Mr. M. Finally, he does the same with Mr. Á. and Ms. V., because they are persons accustomed to dealing with lawyers, such that it is not credible that they acted innocently in these events. The arguments are not admissible. It must be stated initially that it is not true that the Court does not set forth, in its evidentiary reasoning, why it gives credence to each of those declarants and, in general, to the body of evidence. To enumerate here the various aspects that the lower court held as demonstrated based on such evidence is superfluous. But the appellant and the interested parties can verify that, for each important fact, it is stated on what evidence each demonstrated fact is based and the explanation of why. To suggest, indiscriminately, that all the witnesses are suspicious, or that the only one who told the truth is the accused and the rest of the witnesses (for various reasons) are conspired against him, is excessive and completely lacking in support. Thus, although it is true that two of them participated with some level of responsibility in the events (F. and E. and G., who reached a settlement for those acts), regarding the others there is not the slightest doubt that casts a shadow over their testimonies. Just as the comment that, because of having a professional relationship with someone or many years of experience in an area, the declarant will alter their testimony or hide something is inadmissible. Rather, as was extensively explained pages earlier, that evidence is internally consistent and in accord with the context, corroborating one another and with the documentary pieces filed in the process. If the appellant believes that any of them committed an unlawful act, he can proceed to report it, providing the elements of the case. But, as long as such elements do not exist, but rather presumptions of convenience, in which the urgency to discredit the overwhelming incriminating factors against his client may drive such strategies, that argumentation is not admissible. Unless this can be demonstrated, and in this matter, it has not even been attempted, such claims are precipitous. The objection dismissed.

XXII.- In the seventh procedural ground, the complainant objects to the illegal incorporation of documentary evidence, consisting of the complaint (querella) by Cori Consulting and Financial, a corporation (sociedad anónima). This, the co-defense counsel says, refers to facts that are being tried in another venue and was not brought to the attention of the parties. Moreover, the Court did not assess the evidence at folios 17164 to 17185, but merely cited it. The ground must again be rejected for lack of procedural interest. As already noted above, the mere statement of a fault or irregularity (if it exists) is not enough to consider that it is a defect in the judgment or that it may even lead to its annulment. It is a requirement for this that it be demonstrated that the fault in question (if it exists) had repercussions on the judgment and that the relevant content thereof cannot survive with that defect. However, if, as in this matter, the claim is that evidence from a complaint from another process was taken into account (for which, by the way, there is no impediment, due to the principle of freedom of evidence already explained), or that it was not brought to the parties' knowledge, or that said evidence is merely cited in the decision without being sufficiently weighed, it is necessary to demonstrate the procedural grievance. That is, what was the specific harm alleged to have been caused. Therefore, to point out why that evidence was important, how things would have changed without it or if the parties had had access to it, or in what way the need for all the enumerated evidence to be explicitly assessed was appreciable. But the appellant limits himself to criticizing that certain evidence was incorporated, without even mentioning its content and even less its importance. Just as he also fails to explain why he considers that any of the documents listed by the lower court within the set of that type of evidence was left unweighed and its significance. In fact, he claims that not all the documents were assessed, without explaining why it was important to do so with any one specifically or which of them was of interest to him and why. Moreover, this Chamber must certify that the evidence weighed by the lower court is the important evidence, without it being possible to notice that any relevant piece was left unexamined, something which, as stated, the appellant does not even attempt to demonstrate.

XXIII.- In the first substantive ground, the defense attorney claims that the existence of a scheme (ardid) in the events related to Mr. G. could not be demonstrated, since it was not proven that the bank in Belize did not exist, but rather there is a lease agreement to locate it, that there were officials of Banco Elca who went there for various tasks, that the investment certificates delivered by J. accredited its effective existence, and that there was no defect in the consent of the contracting parties, besides the fact that the agreement signed in Guatemala contained an arbitration clause that required them to resolve their disputes through that avenue. The ground is not acceptable. It must be stated initially that the substantive appeal (recurso de fondo) is intended to verify the correct application of the substantive law to a determined factual species. This is not feasible if, to favor the challenge, the set of facts contained in the decision is disregarded, as the factual premise of the analysis becomes inaccurate. This can occur by including aspects that were not held as proven or, as in this matter, by denying others that were, as happens with the existence of a scheme and a pecuniary loss. Due to this situation, the examination requested by the defense attorney is not admissible. In any case, it is worth commenting that all those aspects were examined and resolved in whereas clause V of this resolution, in which it was stated that it is not true that the Bank was authorized to operate in Belize at the time the deception occurred to the detriment of Mr. G. It was authorized afterwards, but that was long after the crime was consummated, in which A. caused him to fall into error, offering him investments in a bank that was not operating then, and diverting the three million dollars that he gave him for other personal purposes. Therefore, one must abide by what was ordered there. That was where the defect of will lay. If later that party was willing to sign an agreement in Guatemala City to try to sort things out, it was, as stated, to try to salvage something. Or, as Mr. R. said, “from a drowning man, his hat” (“del ahogado, el sombrero”). Not because they had not been deceived, since the defendant's proposals, the existence of an office in Belize City, and even the investment certificates were all part of the same fraudulent staging. To conclude, the fact that there was an arbitration clause does not imply, much less, that all the parties' disputes must be resolved through that avenue, as it is intended for patrimonial matters, not criminal ones, as is the case before us, which must be resolved by the competent criminal courts.

XXIV.- Subsequently, as a second substantive ground, this time regarding the fraudulent administration (administración fraudulenta), the defense attorney again attempts to discredit the witnesses whose statements compromised A.’s criminal liability. Likewise, he insists that it was not proven that his client was the perpetrator of those acts, nor the amount of the loss caused to the Bank. The objection dismissed. As can be seen, the defense attorney again incurs in the formulation error already indicated in the preceding whereas clause, by denying in his substantive argument the facts that were held as true, as recorded in proven facts 28 to 69 (folios 17192 to 17204). As to the disqualification of witnesses he attempts, one must abide by what was already ordered in whereas clause XXI, in which it was explained that mere suspicion is not a reason to dismiss a declarant's testimony, especially if (as in this matter) such witnesses were convincing and concordant among themselves and in relation to the rest of the prosecution evidence, which is comparatively overwhelming in relation to the exculpatory evidence, which proved to be light and insubstantial. To conclude, the issue of the amounts reached by the acts carried out by A. and constituting the fraudulent administration were set forth in whereas clauses VII, VIII, and IX of this resolution, referring in pertinent part to the judgment of the lower court. Therefore, at least the minimum loss suffered is, indeed, demonstrated (in the liquidation process, the entirety of the Bank's accounts have not yet been precisely determined), which unquestionably makes the actions constitute a major fraudulent administration. The objection dismissed.

XXV.- Continuing, the misapplication of a substantive provision is alleged, resorting to altering the proven facts, the co-defense counsel indicates that “…A. could not and had no means of knowing that Banco Elca would be intervened the day after the redemption of the H. family… All the intellectual effort made by the Trial Court judges is useless because they fail to demonstrate the actual knowledge they attribute to A., substituting it for a presumption…” He finishes by saying that the accused did not sell any securities, but rather that this transaction represented an income for the Bank, of which it was not proven that it had liquidity problems. The grievance is inadmissible. Apart from the formulation defects already noted, the petitioner omits to take into account that this outflow of funds had indeed occurred when A. irregularly authorized a loan for the corporation Kiona de San Francisco, which he sought to conceal with the money from the early redemption of the certificates coming from the H. brothers. Then, that there were liquidity problems at that moment, he himself told those clients, so it is a situation for which there was indeed evidence. Finally, privileged information was not only having knowledge of the date on which it was likely that the Bank would be intervened by SUGEF. It was also the knowledge of the weak situation of Kiona de San Francisco, the critical condition of Banco Elca, the debacle in the credit portfolio, and the abusive and criminal maneuvers that had been executed to drag the problems out, aggravating them. A. was aware of all these situations, and he used that same information to continue his irregular conduct. This was also extensively set forth in whereas clause VII, with support in the evidentiary body articulated by the lower court. So it was that, far from being an “income” for the Bank, as the defense attorney says, what A. was attempting was to cover up the outflow he had irregularly authorized, and “…the easiest way to obtain it was by acquiring the investment certificates of the Herrero family because, otherwise, he had no money to do so.” XXVI.- In the fourth substantive ground, it is said that regarding the back-to-back loans, the judgment omits assessing the defense's arguments and does not indicate the legally protected interest (bien jurídico tutelado), without SUGEF being able to be one, since it forms part of the Central Bank of Costa Rica. He says that this body cannot be considered a victim and that the lower court did not say what the creation of the danger that constitutes the crime consisted of. The complainant is not correct. In his claim, this defense attorney does not say which defense arguments the judgment failed to assess, nor their importance, but rather limits himself to noting this alleged omission in general, without demonstrating the procedural interest of his dissatisfaction. Secondly, it must be clarified that, when speaking of a legally protected interest, it does not allude to its holder or to the entity that embodies it (the specific individual or legal entity), but rather to the interest protected by law. Thus, the legally protected interest of homicide is not one person or another, but rather is embodied in them: life. In such a way that discussing whether SUGEF is an autonomous entity or forms part of the Central Bank of Costa Rica, not only lacks all importance, but also overlooks considering that what is being protected is not the entity in itself, but what this entity safeguards (the reliability of the national financial market) and in general the documents emanating from banking institutions; but, above all, as is obvious, that what is protected is the assets of those who had trusted in that banking entity. Consequently, the victim, as the decision states, is the national banking system, which saw its credibility partially undermined by the actions of the defendant, and particularly the savers or investors who trusted in the failed Bank. To finish, it must be said that the judgment does explicitly record what the harm caused by A. through those acts was. In this regard, it establishes: “…the legally protected interest protected by the provision, which is none other than the protection of savers, has been effectively violated, coupled with the fact that his conduct contradicts the legal system as a whole, and endangered the stability of the Costa Rican financial system, by violating public trust in the national financial system, a legally protected interest also recognized and protected by our legislation; which necessarily implies respect for the assets that the saving public entrusts to the financial institutions that raise public savings and, consequently, the deference of these institutions to the supervision they must be subject to. In such a way that it is not a matter, as A.’s defense argued, of protecting abstract or undue legally protected interests, but rather ones grounded in the special protection of the saving public and the financial system. Just as the General Superintendent of Financial Entities, O., said: ‘The true financial situation was being concealed. The entity's financial situation was being improved (...) If it had continued operating, the public would have lost their businesses’; which certainly, had the defendant A. achieved his purpose, would have occurred with greater losses for investors and savers. Furthermore, that public trust is deposited in the persons who have been entrusted with the administration of the assets, in this case bankers like C., who must have loyalty and care for the protection of those legally protected interests, which is violated when false information is provided to the supervisory entity, concealing the true financial situation of the institution, an entity charged by law, not only with supervision but with endorsing the provision of the service. There, the danger to the legally protected interest was no longer abstract—which, in any case, is not unconstitutional as the Constitutional Chamber has indicated—but concrete, since that action by the accused sought to conceal other irregularities that were already being carried along.” (folios 17425-17426). Having set it forth thus, it becomes clear what the legally protected interests were, what the attack they suffered was, and the way in which this happened. The appeal dismissed.

XXVII.- For his part, the defendant A. filed an appeal for cassation (casación), alleging first that the funds of Banco Elca were not others' but his own, since, being irregular deposits, he assumed the character of owner regarding them, and therefore a fraudulent administration could not have been configured. To support his argument, he resorts to citing various authors and stating that the precedent issued by the Third Chamber on the matter was different, since in that case there were no “irregular deposits” but rather “trust commissions” (comisiones de confianza). The criticism is inadmissible. The issue was already discussed and resolved in the tenth whereas clause of this resolution, so what was ordered there must be abided by. In any case, it is appropriate to explain to the complainant that the fact that article 116 of the Organic Law of the Central Bank prescribes that financial intermediation is carried out “at the intermediary's account and risk,” in no way means that the latter becomes the owner of the funds entrusted to him. Furthermore, this is evident in who is affected by the failure, which is not concentrated solely on the intermediary; a fact that proves that the depositors maintain a preponderant role, which as stated, is not simply a credit right, but rather that they lose their assets. So much so that, when things are not managed well, the risk is not borne only by the depositary, but by the depositors, and even in many cases (like the present one) the intermediary is not the one who assumes that risk, but rather extends it to the savers and it is these (and not the former) who suffer the consequences of the acts, without the intermediary assuming the financial responsibility that falls to him. Then, the erroneous reading that the petitioner makes of article 528 (related to 524 and 529) of the Code of Commerce must be corrected.

When that provision states: "In deposits of fungible things, the depositor may agree that things of the same kind and quality shall be returned to him. In this case, without the depositor's obligations ceasing, the depositary shall assume the character of owner for the purposes of the losses, damages, and deteriorations that the deposited things may suffer" (the underlining is supplied), it is obvious that it is referring to the vicissitudes or vagaries that may befall such goods or assets, which, being in custody or management for their use, must be guaranteed in their safety and soundness, so that in the event of loss or deterioration, the loss is not borne by the depositor, but by the depositary. But, on the contrary, for all other purposes, the depositary does not acquire the character of owner, as the appellant mistakenly claims, for he is merely authorized for their use, but does not acquire ownership of the same. This objection is without merit.

XXVIII.- In the second ground, it is affirmed that the Trial Court erroneously applied the criminal offense of fraudulent administration (administración fraudulenta), given that there are provisions that are more specific than this one to banking matters. "...the legislator's intention was to create a specific regulatory normative forum for this type of activities carried out by public and private banks, because these institutions simply differ in their very nature and in the purposes pursued from any other conventional commercial activity..." Referring to the case law of this Chamber on drug trafficking, it assures that the actions attributed to the accused are constitutive of the criminal conduct described in Article 159 of the Organic Law of the Central Bank (Ley Orgánica del Banco Central), in relation to Article 241 of the Penal Code, and not fraudulent administration (administración fraudulenta). The former imposes a prison sentence on directors, administrators, managers, or legal representatives of an entity subject to SUGEF supervision who incur in the actions provided for in Article 241 of the Penal Code, that is, who lend their consent or concurrence for acts contrary to the bylaws or the law to be carried out, from which damage to their principal or the public may derive. In support of his claim, the accused refers to some passages of the contested judgment, in which it is stated that he improperly authorized loans or manipulated them in favor of his companies. He insists that, since the Organic Law of the Central Bank (Ley Orgánica del Banco Central) contains specific provisions for that type of entity and its officials, the liability of these shall be covered by those provisions and not others. From another angle, the defendant reproaches that Article 239 of the Penal Code was not applied to him, instead of the crime of fraud (estafa), because that article punishes anyone who offers the public bonds, shares, or obligations "...disguising or concealing true facts or circumstances or affirming or insinuating false facts or circumstances...", thus describing the actions attributed to him as carried out to the detriment of the corporation Night Glow. The objection is not admissible. There is a fundamental difference that the defendant is not making: the criminal offenses contained in Articles 239 and 241 of the Penal Code protect good faith in business. In this matter, we are not only dealing with an infraction of that legal right, but also with pecuniary damage, which those offenses do not cover. Therefore, from the very outset, it must be ruled out that we are dealing with provisions that regulate the same acts. That is, it must be ruled out that we are dealing with a case of apparent concurrence of provisions by consumption of the disvalue. But, to explain the matter more gradually, it is appropriate to recapitulate here the basic notions of an apparent concurrence of provisions. This, as is known, occurs when two or more precepts concur to regulate an action, but they exclude each other. In such cases, as set out in Article 23 of the Penal Code, the special rule prevails over the general one, the rule that fully contains the other prevails over the contained one, and the rule that the law has established as dominant prevails over the subordinate ones. Consequently, before beginning to discuss how this matter is resolved, in order to determine whether there is a special criminal offense or one that contains the disvalue of the other, or whose application has been made conditional on not applying another, it must be defined for the first argument (that is, the authorization of improper acts versus fraudulent administration (administración fraudulenta)) whether both articles, besides constituting crimes in themselves, refer to the commission of other criminal acts in turn. The answer is negative and that spares us, once again, from having to delve into the topic of apparent concurrence. This is unnecessary simply because the two cited provisions refer to different situations. There are other characteristics that must be noted apart from the defining characteristics of the protected interests referred to above; that is to say, neither Article 239 nor Article 241 of the Penal Code punish pecuniary damage, something that Articles 216 and 222 of that same law do, and therefore they turn out to be the ones that best describe the proven factual situation. Thus, while fraudulent administration (administración fraudulenta) refers to an activity composed of criminal acts in themselves, the authorization of improper acts refers to acts that are not criminal; that is, the authorization of improper acts consists of lending one's consent or concurrence for acts contrary to the law or bylaws to be carried out, but which are not criminal, because in such a case the criminal offense of Article 241 of the Penal Code would not be applied, but rather the corresponding criminal figure. Or, to put it another way, the criminal offense of Article 241 is subsidiary; it is applied if those acts are not sanctioned by another specialized provision, with the result that this provision is the one that qualifies as criminal the acts that make up the sanctioned activity, unlike mere "improper acts," which is a generic qualification of unlawfulness causing harm to good faith in business. That is, it also does not contemplate the possibility of pecuniary damage, but rather the mere realization of the improper acts, this being one more circumstance that differentiates it from fraudulent administration (administración fraudulenta). That same circumstance excludes the possibility of speaking or thinking about the possibility of a sort of transit crime (delito de pasaje) between one conduct and the other, since as is known, a transit crime (delito de pasaje) is the progressive affectation of the same legal right, which is excluded in this case, in which the legal rights compromised are different: property in fraud (defraudación) crimes and good faith in business against public trust, that is, they sanction in that order different things such as damage to property and damage to public trust, respectively. Therefore, it is not true that said provisions are in apparent concurrence with each other.

Additionally, there is another difference, which consists of the fact that in Article 241 of the Penal Code the administrator or manager "lends his concurrence or consent," that is, he condones the acts of others, he does not carry them out himself. In such cases (as well as in those in which commission by omission is applicable due to being in the position of guarantor), the applicable crime shall be the corresponding one, but not the generic authorization of improper acts, which is provided for acts carried out by other subjects. In the present matter, it is therefore obvious that the applicable criminal offense was indeed that of fraudulent administration (administración fraudulenta), both because the authorship of the actions was not by other subjects, but by A., who did not lend his concurrence or consent, but rather carried out the irregular acts himself, and because those irregular acts were not simply "improper," but criminal and that, apart from damage to good faith in business, they resulted in pecuniary damage to the victims. As for the actions committed to the detriment of Mr. G. and his company Night Glow, it must be said that the appellant once again confuses the taxonomy of both provisions. The fraudulent offering of credit instruments does not cover the causation of pecuniary damage, but is a crime (like that provided for in Article 241) against public trust. So the mere offering of those bonds, shares, or obligations is sufficient for the crime to be considered as configured, even if no one had acquired them or been affected by being induced into deception. When that happens, the events transcend into the realm of crimes against property and are susceptible, not only to being prosecuted as fraudulent offering of credit instruments (a thing which, by the way, was overlooked to debate in this case), but also as fraud (estafa), since besides an injury to good faith in business, it is also an injury to the property of the aggrieved parties, a disvalue that is neither described nor contained in the aforementioned Article 239. Hence, as with the topic of the authorization of improper acts, we are not, as the appellant claims, dealing with an apparent concurrence of crimes, but with two provisions that do not exclude each other nor protect the same interests, since a fraudulent offering can be made and thus affect good faith in business, without generating pecuniary damage, or vice versa, which corroborates that they are not provisions that refer to the same factual situation nor does one contain the disvalue of the other.

XXIX.- In the third substantive ground, it is asserted that in the case the objective elements of the criminal offense of misuse of privileged information (uso de información privilegiada) were not met, since information that does not have the capacity to influence the price of issued securities is not considered privileged. In the present matter, the early redemptions were made at their nominal price, without any additional benefit being obtained. What is intended to be prohibited, the petitioner claims, is the alteration of the normal speculation of the stock exchange, through the handling that makes it possible to know what may or may not happen. Given that the transaction with the H. brothers took place off the exchange, it would not be covered by that article or those of the Securities Market Regulatory Law (Ley Reguladora del Mercado de Valores), which in its numerals 101 and 102 speak of the "securities market (mercado de valores)." The challenger is not correct. The securities market (mercado de valores) is not only the stock exchange, just as the "market" in general is not a specific place. It is an activity. In that sense, there is no doubt that Banco Elca, like many other operators, acted in the securities market (mercado de valores), even when many of those transactions did not take place on the stock exchange. Therefore, the aforementioned hypotheses that prohibit the use of privileged information (uso de información privilegiada) do apply to these facts. On the other hand, that the information available to the accused was privileged clearly emerges not only from the reasoning of the lower court (a quo), but from the very transcription the accused makes in his appeal, when it is stated that "Privileged information must be such that, if made public, it would influence prices (price sensitive information). Hence, not all non-public information can be considered privileged information" (López Barja, Curso…, p. 347). So, from the very textual citation made by the appellant, it is confirmed that this information was indeed privileged. Could it be that the value of the certificates he negotiated with the H. brothers would have come into his hands had he not concealed information about the conditions of the credit and the shares of the corporation Kiona de San Francisco? Or that the debt that corporation held with Banco Elca came from an irregularly granted loan with a questionable guarantee? Irrefutably, if the investors had known the credit and shareholding situation of that corporation, they would not have handed over the referred certificates to A., since both the debt of that corporation and its shareholding lot would have had a value far lower than what they appeared to have, just as it simultaneously concealed the low reliability that Banco Elca had at that time, whose certificates continued to be traded on the securities market (mercado de valores), ignoring the magnitude of the problem (which included an imminent intervention of the Bank) and, incidentally, fictitiously sustaining a price that no longer corresponded to them by virtue of such vicissitudes. In this regard, it is pertinent to keep in mind what the lower court (a quo) established, a text that was already referred to in the previous pages, but which is worth bringing up again. "It should be noted that, according to the SUGEF reports, that operation denoted high risk because, according to the payment capacity analysis, this corporation was left with an 80% level of indebtedness and could only pay interest, not the principal. Understand, then, C.'s concern to cancel that credit by any means necessary, and the opportunity arose when the H. brothers accepted the exchange of their investment certificates for that credit, believing there would be no problems because it was a 'healthy' loan. M. says, 'I insist to him, and what he told me was that we should exchange the investments for healthy loans in other companies, he offers me a loan from Inversiones Kiona for four hundred and fifty thousand dollars and it had as collateral 66% of the shares of FINANCORP brokerage house and Financorp, he gave me balance sheets from the previous month, I studied them, the balance sheets reflected very pleasant information.' We see then, how the accused, even knowing that the loan to Inversiones Kiona presented problems and having knowledge of the abnormal situation the bank was going through, still offered it to the H. brothers, making them believe that everything was fine, the reality of things being reflected when, the day after that negotiation, Banco Elca was intervened, likewise affecting the FINANCORP brokerage house, with this family having only received from the debtor company a principal payment of fifty-five thousand dollars ($55,000.00) plus the interest corresponding to the first month. It is very clear to the court that the accused C., with the full intention of obtaining a benefit for himself, abusing his position as owner and president of Banco Elca and knowing in advance that 'his' bank was in trouble, because he had information that SUGEF itself had sent him, deceives M. by telling him that the Inversiones Kiona loan was 'healthy', and once he comes into possession of the respective investment certificates, he redeems them to thereby cancel the not-at-all-healthy loan he had granted to that corporation." To conclude, the questions of whether the early redemption of the certificates belonging to the H. brothers represented an expenditure or an income for the Bank and whether it constituted an acquisition in the terms of that Article 245 of the Penal Code, or whether an improper benefit for himself or for a third party was involved, were already addressed in Considerando VII, for which reason we must abide by what was resolved there, it being something that the judgment also holds as proven, so it is not permissible to call it into question again in the substantive review requested.

XXX.- In the first procedural ground, the appellant claims that the lower court (a quo) violated the rules of sound criticism, by holding the back-to-back transactions as non-existent, resulting in the fact that "...from an accounting point of view and from a material point of view..." these were real, concrete, and generated resources for the Bank. He says that this type of operation was authorized by SUGEF, which verified that there had been income of one million dollars as a result of them, and that if they were reversed it was due to simple doubts of its officials. To support his thesis, an "Independent Auditors' Report. Audited Financial Statements. As of December 31, 2007" from the firm CGS-CPA y Consultores S.A. is provided as evidence, which confirms the existence of that money. Subsequently, some excerpts from the ruling are transcribed to contradict the Court's conclusion that those operations did not generate profits, making these depend on the fulfillment of formalities for the granting of the loans. It is also not relevant, he says, that the original money came from Corporación Elca, because it was a company with its own capital, distinct from that of the Bank. But, the truth is that such operations were carried out and the auditors credited those funds to the cited corporation. The accused is not correct. The question of whether those back-to-back operations had effective existence was already partially settled in the twelfth considerando of this resolution, for which reason the parties are referred to what is stated there. As for what was not discussed in that section and what the appellant formulates in his allegations, the following is worth stating. First, whether the funds had a certain origin or not, as he claims, is irrelevant. The important thing is that it was a merely accounting incorporation of some funds that came from Corporación Elca, which not only did not constitute in any way "fresh money" that strengthened the weak loan portfolio of Banco Elca, but rather they only entered nominally. However, it strikes this Chamber that an attempt is made to deceive, just as was done with SUGEF, the Courts of Justice, by saying that those initial funds of the back-to-back chain, which amounted to $1,240,000, came from Corporación Elca, when the truth is that from that corporation only a sum slightly exceeding $850 was taken (folio 17405). Hence, whether those funds from Corporación Elca were real is unimportant, if they were an imperceptible part of the total that was supposedly going to be invested in the back-to-backs. The rest came from the early and fraudulent redemption of the Bank's own certificates that the appellant had ordered, such as those canceled with two checks of $118,503.18 and $206,930,896.97, corresponding to certificates belonging to Messrs. J. and W., and a line of credit approved by A. himself in favor of Kiona de San Francisco for the amount of $450,000 (folios 17403-17404), which he transferred to Corporación Elca and from there to the Bank; but, in no way did that imply that they came from the latter, but rather they had only passed through its coffers in accounting terms. "That is, it can be established how the base money necessary to operate the back-to-back credit mechanism never came from external sources and, consequently, did not constitute fresh money, as was affirmed by A.'s defense. With that money, and no other, the twenty back-to-back credit operations were carried out, thus fictitiously increasing the loan portfolio and the commission income indices that Banco Elca S.A. had to report to SUGEF. As witness A. stated: 'they were a series of operations with twenty companies that generated a series of operations that generated one million dollars in commissions and were recorded as commission income, later that million dollars ends up in the account of Corporación Elca (...) the "back to back" operations start because Banco Elca receives checks from some checking accounts drawn on Banca Promérica, about four hundred and fifty thousand dollars are generated there, the instruction is given to deposit it in different accounts of Banco Elca, after those funds are deposited, a loan is generated, with the five hundred thousand dollars from Banca Promérica and four hundred and fifty thousand dollars from Banco Elca accounts, and a loan is generated to Inversiones Kiona, later it is deposited in Financorp Brokerage House, and one million is gathered which generates the loans on which the "back to back" operations are created, and they go on generating the million in commissions'; E. reports that: 'they explained to us on the whiteboard a scheme of operations, there were 20 accounts, transfer came from abroad, an account was opened, a certificate was issued and from there a back to back and so on with all the accounts' and M: 'we were told that the board of directors had approved the opening of 20 loans of one million, Mr. C. was there and they told us that Sugef had approved it, that Mr. G. and Mr. C. had discussed it, on a whiteboard the description was made to us, with the disbursement of one loan the guarantee for the other loan was made and so on successively' and as was indicated in the expert report, the established approach was to deposit funds -the one million two hundred and forty thousand dollars ($1,240,000.00) that were in the account of Corporación Elca Internacional, S.A.- into the savings account of one of those corporations, -starting with Inversora Agropecuaria 370 C.A.- (see folio 28 of Legajo de Prueba Nº 87-A) which, upon receiving the resources, requested that with such funds a "Certificado de Inversión a Plazo" be constituted in its name at Banco Elca S.A. itself and, immediately, requested that a Loan be granted to it, which it guaranteed with the Certificado de Inversión a Plazo just constituted in its favor. The loan was approved by the Bank and the respective disbursement was deposited -by order of the benefited company- into the savings account of the next corporation, and so on successively until completing the twenty companies, the five Costa Rican ones: Inversiones Silver Reef SA, Vuelo Helicoidal SA, Industrias Artoeyar Ltda., The Blue Water Fall S.A., and Besiberri S.A., and the fifteen Venezuelan corporations: Comercializadora Sommersby C.A., Inversiones Alter 2005 C.A., Inversiones Ridixi C.A., Construcciones Dijon C.A., Agropecuaria Las Consonantes C.A., Inversiones Otawal C.A., Inversiones Sairanac C.A., Inversiones Valle La Pascua C.A., Deportes 4000 C.A., Inversiones Tendensipre C.A., Inversiones Bastron C.A., Inversora Agropecuaria 370 C.A., Herrerías Las Tres Esquinas 888 C.A., Fondo Río Chico CA, and Inversiones Rustol C.A.; it being the case that the last company in the chain -Inversiones Bastron C.A.- ordered that the disbursement of the loan granted to it be deposited into the account belonging to Corporación Elca Internacional S.A. No. 122011623, that is, the same account from which the funds -the initial one million two hundred and forty thousand dollars ($1,240,000.00)- originally came. That is, the money returned to the account from which it came, thus, one million one hundred and thirty-five thousand dollars ($1,135,000.00) from that last disbursement plus one hundred and five thousand dollars ($105,000.00) from the remainder of some of the credit operations, as will be set out below. It turned out that, from the chain of fund transfers, constitution of certificates of investment (certificados de inversión), and formalization of back-to-back loans, there remained in some of the accounts of the involved companies, with the exception of Inversiones Silver Reef S.A., Industria Artoeyar Ltda, The Blue Waterfall S.A., Construcciones Dijón C.A, Besiberri S.A., Inversiones Valle La Pascua C.A. and Deportes 4000 C.A., a remainder of money constituted by the difference between the amount deposited into each savings account and the amount of the loan disbursed, all of which remainders were transferred that same day, May thirty-first, 2004, in favor of the account of Corporación Elca Internacional S.A. No. 1220011623, pursuant to an official letter from each of those companies authorizing the debiting of that remainder from their account (cf. folios 35 to 47 of Legajo de Prueba Nº 87-A), so that, then, as noted supra, the one million two hundred and forty thousand dollars ($1,240,000.00) that was used to carry out the various back-to-back operations returned in its entirety to the account from which it came, that is, the account of Corporación Elca Internacional S.A. Those remainders summed one hundred and five thousand dollars ($105,000.00) which were distributed as follows: Inversora Agropecuaria 370 C.A. four thousand dollars ($4.000,00); Fondo Río Chico C.A. one thousand dollars ($1.000,00); Herrería Las Tres Esquinas 888 C.A. five thousand dollars ($5.000,00); Comercializadora Sommersby C.A. twenty thousand dollars ($20.000,00); Vuelo Helicoidal S.A. ten thousand dollars ($10.000,00); Inversiones Rustol C.A. two thousand dollars ($2.000,00); Inversiones Alter 2005 C.A. three thousand dollars ($3.000,00); Inversiones Ridixi C.A. five thousand dollars ($5.000,00); Agropecuaria Las Consonantes C.A. seven thousand dollars ($7.000,00); Inversiones Otawal C.A. five thousand dollars ($5.000,00); Inversiones Sairanac C.A. twenty-eight thousand dollars ($28.000,00); Inversiones Tedensipre C.A. five thousand dollars ($5.000,00) and Inversiones Bastron C.A. ten thousand dollars ($10.000,00); for a total of one hundred and five thousand dollars ($105,000.00) which, as stated, returned to the account of Corporación Elca Internacional S.A. No. 1220011623, to be added to the deposit of the last disbursement of one million one hundred and thirty-five thousand dollars ($1,135,000.00), thus totaling, once again, the initial one million two hundred and forty thousand dollars ($1,240,000.00). In light of Reports Nos. 421-DEF-300-04 on folios 844 to 853 of Volume III and their amplifications, 50-DEF-506-04/05 on folios 3746 to 3750 of Volume IX and 283-DEF-274-05 on folios 5237 to 5239 of Volume XII, and the clarifications provided about them by the O.I.J. expert José Antonio Bravo Bonilla, it can be specified that the mechanism used, following the order of those twenty back-to-back loans was:

(1) From the account of Corporación Elca Internacional, S.A. No. 122011623, A. transferred the one million two hundred and forty thousand dollars ($1,240,000.00) gathered to the savings account of the company called Inversora Agropecuaria 370 C.A. at Banco Elca S.A. No. 112003321, which in turn requested that with those amounts a Certificado de Inversión be issued at Banco Elca S.A. No. 200028446 for an amount of one million two hundred and thirty-six thousand dollars ($1,236,000.00) for a one-month term (extendable for equal terms) to proceed to request that a credit operation be formalized in its favor, No. 300012955 for the same sum as the Certificate and guaranteeing it with the latter; (2) The resources from said credit were deposited into the savings account of Fondo Río Chico C.A., No. 112003226, with these funds and in favor of this company the Certificado de Inversión at Banco Elca S.A. No. 200028434 was constituted for one million two hundred and thirty-five thousand dollars and at the same Banco Elca S.A. a credit operation No. 300012947 was formalized in favor of this company for the same amount and with said certificate as collateral; (3) Those resources were deposited into the savings account of Inversiones Silver Reef S.A., No. 112003290 and with them, in favor of this company, the Certificado de Inversión at Banco Elca S.A. No. 200028443 was constituted for one million two hundred and thirty-five thousand dollars ($1,235,000.00) and at Banco Elca S.A. a credit operation No. 300012952 was formalized in favor of this company for the same amount, and with said certificate as collateral; (4) Those resources are deposited into the account of Herrería Las Tres Esquinas 888 C.A. No. 112003249, with them the Certificado de Inversión at Banco Elca S.A. No. 200028437 was constituted for one million two hundred and thirty thousand dollars ($1,236,000.00) and Banco Elca S.A. formalized in favor of this company credit operation No. 300012950 for the same amount, and with said certificate as collateral; (5) The resources from said credit were deposited into the account of Comercializadora Sommersby C.A., No. 112003261, with them the Certificado de Inversión at Banco Elca S.A. No. 200028441 was constituted for one million two hundred and ten thousand dollars ($1,210,000.00) and a credit operation No. 300012959 was formalized in favor of this company for the same amount, and with said certificate as collateral; (6) Those resources were deposited into the account of Vuelo Helicoidal S.A., No. 112003350, the certificate of investment (certificado de inversión) at Banco Elca S.A. No. 200028450 was issued for one million two hundred thousand dollars ($1,200,000.00) and a credit operation No. 300012960 was formalized in favor of this company for the same amount, and with said certificate as collateral; (7) That money was deposited into the savings account of Industrias Artoeyar Ltda, No. 112003344, the Certificado de Inversión at Banco Elca S.A. No. 200028449 was issued for one million two hundred thousand dollars ($1,200,000.00) and a credit operation No. 300012963 was formalized in favor of this company for the same amount, and with said certificate as collateral; (8) With those resources a deposit is made into the account of The Blue Waterfall S.A., No. 112003381, with them and in favor of this company the Certificado de Inversión at Banco Elca S.A. No. 200028456 was constituted for one million two hundred thousand dollars ($1,200,000.00) and Banco Elca S.A.

formalized a credit operation No. 300012965 in favor of this company for the same amount, and with said certificate as guarantee; (9) With those resources, the following deposit is made into the account of Inversiones Rustol C.A., No. 112003309, an Investment Certificate was constituted in favor of this company at Banco Elca S.A. No. 200028451 for one million one hundred ninety-eight thousand dollars ($1,198,000.00) and credit operation No. 300012961 was formalized for the same amount and with said certificate as guarantee; (10) Those resources were deposited into the account of Inversiones Alter 2005 C.A., No. 112003189, an Investment Certificate was constituted in its favor at Banco Elca S.A. No. 200028442 for one million one hundred ninety-five thousand dollars ($1,195,000.00) and credit operation No. 300012951 was formalized for the same amount and with said certificate as guarantee; (11) That money was deposited into the account of Inversiones Ridixi C.A., No. 112003255, an Investment Certificate was constituted at Banco Elca S.A. No. 200028436 for one million one hundred ninety thousand dollars ($1,190,000.00) and credit operation No. 300012948 was formalized for the same amount and with said certificate as guarantee; (12) The sum obtained was deposited into the account of Construcciones Dijón C.A., No. 112003315, with it the Investment Certificate was constituted at Banco Elca S.A. No. 200028448 for one million one hundred ninety thousand dollars and with it as guarantee, credit operation No. 300012958 was formalized for the same amount; (13) The money is deposited into the account of Besiberri S.A., No. 112003410, an Investment Certificate was constituted in its favor at Banco Elca S.A. No. 200028455 for one million one hundred ninety thousand dollars ($1,190,000.00) and the same Banco Elca S.A. formalizes a credit operation No. 300012964 in favor of this company for the same amount and with said certificate as guarantee; (14) Those resources were deposited into the account of Agropecuaria Las Consonantes C.A., No. 112003373, with them an Investment Certificate was constituted in favor of this company at Banco Elca S.A. No. 200028447 for one million one hundred eighty-three thousand dollars ($1,183,000.00) and with it as guarantee, a credit operation No. 300012956 was formalized in favor of this company for the same amount; (15) The money from that credit was deposited into the account of Inversiones Otawal C.A., No. 112003284, the Investment Certificate was constituted with it at Banco Elca S.A. No. 200028452 for an amount of one million one hundred seventy-eight thousand dollars ($1,178,000.00) and immediately at the same Bank, a credit operation No. 300012962 was formalized in favor of this company for the same amount and with said certificate as guarantee; (16) The resources from that credit were deposited into the account of Inversiones Sairanac C.A., No. 112003232, with them an Investment Certificate was constituted in favor of this company at Banco Elca S.A. No. 200028435 for one million one hundred fifty thousand dollars ($1,150,000.00) and with it as guarantee, a credit operation No. 300012949 was formalized in favor of this company and at the cited bank for the same amount; (17) The resources from that credit were deposited into the account of Inversiones Valle La Pascua C.A., No. 112003278, with these funds the Investment Certificate was constituted at Banco Elca S.A. No. 200028438 for one million one hundred fifty thousand dollars ($1,150,000.00) and credit operation No. 300012954 was formalized in favor of this company for the same amount; (18) The resources from said credit were deposited into the account of Deportes 4000 C.A., No. 112003404, the Investment Certificate was constituted with these funds at Banco Elca S.A. No. 200028439 for one million one hundred fifty thousand dollars ($1,150,000.00) and a credit operation No. 300012957 was formalized in favor of this company for the same amount and with said certificate as guarantee; (19) The resources from said credit were deposited into the account of Inversiones Tendensipre C.A., No. 112003338, an Investment Certificate was constituted in favor of this company at Banco Elca S.A. No. 200028444 for one million one hundred forty-five thousand dollars ($1,145,000.00) and a credit operation No. 300012953 was formalized in favor of this company for the same amount, and with said certificate as guarantee; (20) That money was deposited into the account of Inversiones Bastron C.A., No. 112003427, with it the Investment Certificate was constituted at Banco Elca S.A. No. 200028453 for one million one hundred thirty-five thousand dollars ($1,135,000.00) and with it as guarantee, credit operation No. 300012966 was formalized for the same amount. Consequently, with all these fictitious financial movements, the accused A. managed to increase, in accounting terms, though not financial, the Loan Portfolio of Banco Elca S.A., directed by him, by a total of twenty-three million eight hundred thousand dollars ($23,800,000.00), as well as to record commissions, which are also fictitious since, as will be seen, it involves the same original money, for credit disbursements in favor of the Bank for exactly one million dollars ($1,000,000.00), all of which occurred on a single day, the thirty-first of May, two thousand four, and with the sole purpose, then, of having it recorded in the Bank's Financial Statements as of that date. From what has been set forth thus far, it is duly accredited that not only did no external resources enter Banco Elca S.A., but neither did it obtain any real benefit from these movements, except, then, only the accounting one, and whose sole purpose was to feign a healthy financial situation, just as Superintendent R. pointed out: "The nature of those operations was something fictitious, also the purpose because the bank was showing normality when it was in irregularity two. The true financial situation was being hidden. The entity's equity situation was being improved. Files were reviewed and it is determined that they did not meet requirements. Since March it was evident that the bank was at risk, just reviewing 15%, it was not the first time it was in that situation in irregularity one and two. If it had continued functioning, the public would have lost their businesses." Although the accused A. testified in the hearing, he did not mention the topic addressed in this section of the ruling, coupled with the fact that he abstained from answering questions from the procedural parties. The foregoing notwithstanding that, in writing (cf. folios 4059 to 4065 of volume X of the principal file) there is an extensive statement of his regarding the related back-to-back credits which, although it does not largely detract from the elaboration presented by the Court, does seek to evade his responsibility. Conversely, to what was set forth there by the accused A., (cf. Article 343, paragraph 3 of the Code of Criminal Procedure) his private defense counsel now asserts that the cited back-to-back credits produced fresh income for the bank, among other things because they generated commissions on the order of one million dollars ($1,000,000.00) that entered its coffers. However, this is nothing more than a defense argument and does not merit credibility, as it is once again proven that it involves, not distinct fresh money, but the same money that served as the basis to generate the back-to-back credits and that returned to the checking account of Corporación Elca Internacional, S.A. from which it originally came, just as was already established." (folios 17405-17413). On the other hand, if SUGEF authorized, certainly in a conditional manner (which was disrespected), those operations, it was under the belief that the information provided by the accused and his bank was reliable, which ultimately proved to be mistaken, as he intended to conceal that those operations were a simple accounting maneuver to feign that the financial entity's situation was not so critical. So that, regardless of possible anomalies in the granting of the credits in question, the relevant point is that the entire succession of operations was nothing more than a setup. In light of this entire situation, it is not seen what the importance is of the conclusion of the financial report provided by the defendant, which on folio 26 accounts for a "rejected legalized obligation" (sic) for 1,006,047 dollars produced by the reversal of the commissions from the cited back-to-back operation, because that does not certify, far from it, that this money was generated as profit, but rather that what exists is an accounting obligation, whose final destination depends on the corresponding judicial resolution.

XXXI.- As a second procedural ground, the accused reproaches that the existence of fraudulent intent (dolo) in the fraud (estafa) of which he was accused was not proven. He comments that the allusions made to that point in the ruling are scant and lack evidentiary substantiation, which is not mentioned by the Judges. Rather, he assures, many of the elements taken into account by the lower court (a quo) confirm the non-existence of that fraudulent intent (dolo), for which he seeks support in some parts of the ruling that he transcribes. He says that Mr. G. made investments on at least three different occasions with his bank, of which two were positive and that in the third he tried to honor his commitments, responding with his own resources, on which he expands by recounting the efforts in that sense and what the witnesses said. The ground is not admissible. All those aspects, consideration of the paragraphs of the ruling referred to by the petitioner, were already discussed and resolved in recitals II, IV, V and VI, in which it is stated what the evidence was that the lower court (a quo) specifically took into account to demonstrate the various components of the fraud (estafa), including the defrauding fraudulent intent (dolo), therefore the interested parties are referred to what is stated therein.

XXXII.- As the following ground, the accused claims the illegal incorporation of the evidence coming from the Bahamas, for which it was not proven that banking secrecy (secreto bancario) had been lifted nor that the chain of custody was respected. Being evidence that does not benefit the suspect, the lack of objection or the use of those proofs by the defense does not cure the defects they contain and they must be excluded. The issue was already resolved in the twentieth recital when disposing of the appeal of his co-defense counsel. Abide by what is provided there.

XXXIII.- In the fourth claim, it is argued that due process was violated, by not conducting the trial in the two phases that had been agreed upon in the intermediate stage. "…this procedure has caused serious grievance to the rights of the accused, as he was denied the possibility of presenting before the members of the Court the elements of conviction tending to supply further information for purposes of setting the penalty to be imposed." The reproach is not acceptable. The issue was already resolved in recital XIV of this resolution, therefore, what was decided there must be abided by. Besides the fact that the appellant does not indicate what element of conviction he could not present in the closing arguments that he could indeed have raised in the second stage of the trial that he misses, or what he could have said in that stage that he could not in the trial as it was held. Therefore, the complainant gives no additional reason to those that were analyzed in the recital already referred to.

XXXIV.- Continuing with the tendency to reiterate grounds already filed by his defense counsels, the defendant alleges that there is a lack of substantiation in the penalty imposed on him. He says that Article 142 of the Code of Criminal Procedure imposes the duty to provide reasons for decisions, and that Article 71 of the Penal Code establishes the parameters that must be taken into account for setting the penalty, all of which was ignored by the lower court (a quo), which did not assess the personal qualities of the accused, such as his studies or age. He concludes by saying that the purpose of the sanction must be resocialization, so twenty-three years in prison is disproportionate. All those aspects were already debated in recital XV, consequently referring the interested parties to what is established there.

XXXV.- Finally, in an additional brief, A. presented a sixth procedural ground, in which he denounces erroneous assessment of the evidence, by giving credence to witnesses who "…clearly possessed a very particular interest, specifically the interest of not being implicated as defendants in the same acts…" He alludes to the testimonies of H and J. Next, he transcribes doctrine and jurisprudence of the Spanish Constitutional Court regarding what constitutes proper assessment of evidence, as well as excerpts from the ruling in which the participation as actors and then as witnesses of both subjects is highlighted. He ends by saying that there was no independent evidence to corroborate the information they provided and again resorts to the doctrine on "negative intrinsic criteria." The ground is declared without merit. The fact that doctrine and jurisprudence assert that special care must be taken in the assessment of persons who are linked by relationships of friendship or enmity, or by interests concordant or contrasting with the accused, does not mean that those statements must be disqualified, but rather (and on that the complainant agrees) that greater attention must be paid. However, in turn, that does not accredit that in this case those witnesses were untruthful, something that not even the accused in his appeal attempts to demonstrate, but rather he simply projects a shadow of suspicion with which he intends to devalue said proofs, without specifying in what aspect they are not true or which evidence discredits them. On the contrary, as explained pages back, said testimonies, although coming from persons who had accessory participation in some of the acts (for which they reached a settlement), were shown to be consistent and internally logical, as well as consistent with the context and the other evidence presented. Furthermore, it must be categorically stated that there was independent evidence that confirmed the testimony of those witnesses, as was developed in recitals II, III and XXI, when addressing the topic of the reliability of witnesses F. and E. and G. The appeal filed by the defendant A. is without merit.

XXXVI.- The representatives of the civil defendant, the bankruptcy (quiebra) of Banco Elca sociedad anónima, filed an appeal, claiming in the first ground, which they head as "violation of the rules of sound criticism (sana crítica)", that the lower court (a quo) infringed substantive law, because in the present matter no financial harm was caused to the corporation of Mr. M. Leaving aside the technical imprecision of alleging together problems of reasoning and misapplication of the substantive law to the factual species being questioned (which is an allegation of indirect violation of the law), it must be said that the challengers are not correct. After transcribing at length the relevant part of the ruling, said parties state that the investment certificates issued in exchange for the three million dollars delivered by the representative of G. to A. were genuine; and that, on the other hand, these funds were to be deposited outside of Costa Rica. If the bank in Belize could not take deposits at that time, that does not mean it was not bound by such certificates, so they should have been collected there. On the contrary, it was not demonstrated that the injured party undertook efforts to collect the monies at the place where they were sent voluntarily or that they did not reach that destination, on which they emphasize in the following pages. The objection is not admissible. Both in this ground and in the subsequent ones, the constant will be that the appellants intend to suppress the fundamental fact about the category of the acts that concern us: that it is not a mere financial negotiation, but the commission of a crime. Thus, even if the funds were destined for another place or a banking agency in another country was mentioned, that does not inhibit the national courts in any way from hearing the matter and ruling in accordance with the law, given that the acts took place in Costa Rica, where both the deception and the financial harm it led to occurred. This aspect, which is criticized by the petitioners, who deny that such deception and harm occurred, is overwhelmingly demonstrated, there being reliable evidence already recapitulated above that A. received three million dollars from Mr. G., to whom he had offered the offshore services of the bank Elca in Belize. These were not given "voluntarily," but with a will vitiated by the error the accused caused him to fall into, by telling him that such services existed when in reality the respective permit was barely being processed, but this was useful so that, trusting in that version, G. would deliver the money and A. would divert it into one of his own accounts, without sending it to Belize, where it was not possible in any case, given that the activity of the cited agency was a fallacy. Needless to say, G. could not recover his funds. Therefore, focusing on the facts as if it were a simple financial transaction and demanding that solutions be sought according to such condition (collection efforts, verification of deposits and other diligences), ignores that it is not a merely commercial situation, but rather involved a crime, which was carried out through the simulation of false data or circumstances (an inoperative agency, facilities that simulated being active, fictitious certificates, a deposit in an account that was not such, etc.), which the appellants take as genuine to request a different solution than the civil conviction of their represented party, something illogical and precisely what is being demonstrated was a fallacy. To conclude, one cannot fail to cite what was established by the lower court (a quo) in this regard, which is even more enlightening. "It has been alleged (folios 16637 to 16639 of volume XXVII principal) that the Costa Rican judges are not competent —although in reality it is a lack of jurisdiction of the national courts— to rule on the civil claim since the certificates in favor of Night Glow S.A. (in view of the principle of literalness typical of negotiable instruments), must be considered issued in Belize which is the place determined in the contract, therefore it is in that country where the contract must be performed and any controversy resolved, as established by Articles 1907, 323 and 324 of the Code of Private International Law commonly known as the Bustamante Code, as it will continue to be called. This argument must be rejected. First, it must be said that Belize does not appear to date as a signatory, adherent or ratifying country of the Bustamante Code (see official information on the OAS page: http://www.oas.org/juridico/spanish/firmas/a-31.html) so it is not observed how a regulation that is not part of its legal system could be applied to it. Secondly and more importantly, whoever formulates this reproach attempts to make the essential element of this discussion go unnoticed, which is that the mentioned negotiable instruments lack value as such (that is, as negotiable instruments) because they were part of the means used by the accused C. to induce the offended entity into error. And it is said that they are not negotiable instruments properly speaking because at the time of their issuance, Elca International Bank and Trust Limited of Belize was not authorized to take funds from the public and, therefore, to bind itself in a contract of the nature of the one discussed, as recorded in the documents on folios 35 to 40 of the complaint brief of Cori Consulting and Financial Services S.A. On the other hand, the obligation being claimed with the civil claim is not properly derived from the referred certificates —which would suppose their validity— but one derived from a crime (fraud - estafa) and that crime was committed in Costa Rica because the money was delivered at the facilities of Banco Elca in San José to C. who, although he was not present at that moment, gave instructions to H. for its reception and disposition for his benefit. It was in that place that A. appropriated it by ordering that it be transferred to an account of his outside the country, over which he later disposed for a purpose different from the one contracted. If the crime occurred in Costa Rica and the documents were only a means to make the offended party incur error, it is in Costa Rica, in the place where the claim must be filed, this court being, after fulfilling the other stages of the process, the one competent to rule on the merits, being the criminal court of finance with competence to hear the crimes indicated in numeral 1 of Law No. 8275 on the creation of the Criminal Jurisdiction of Finance and Public Function, among which are those provided for in the Organic Law of the Central Bank of Costa Rica and, by connection, any other related act whether committed by the same accused —as occurs here— or under other circumstances provided for in the norm (Articles 50 and 51 of the Code of Criminal Procedure). As if what has been said so far were not sufficient for the rejection of the claim, it must be added that the check with which R. pays the three million dollars is delivered to H. at Banco Elca in Costa Rica on May 31, 2002 at 10:50 a.m. and that is the same date that the certificates have (See folios 2588, 2590, 2592 and 2594 of volume VII principal) which were also withdrawn in San José, Costa Rica, which, added to the fact that at that time there was no license to take deposits and that the local bank handled documentation with the letterhead of the Belize bank, allows inferring that this issuance never occurred in Belize, although so recorded, but was done in Costa Rica." For all the foregoing, the ground must be declared with merit.

XXXVII.- As second and third grounds, the appellants underline that it is not true that the negotiation with the corporation Night Glow was on behalf of Banco Elca with A. acting as intermediary "…since the evidentiary elements presented during the adversarial proceedings only reflect to us that the aforementioned financial transaction was done personally with (sic) C. and J…" Resorting to compiling some traces of the testimonial evidence, the petitioners reiterate that the Belize agency existed and that it was voluntarily that this money was delivered for the purpose of being deposited there, and not in Banco Elca of Costa Rica, which in any case it did not reach, as it was deposited by A. in an account of his own. Also, that G. being a successful businessman and his representative an experienced lawyer in the matter, confused both financial entities. Therefore, according to those testimonies and documentary evidence insufficiently weighed by the lower court (a quo), it could be demonstrated that this debt did not correspond to Banco Elca, to the point that it was rejected as part of its contractual obligations. The challengers are not correct, as they continue to confuse the typology of the events. Banco Elca answers for the civil consequences of the fraud (estafa) committed to the detriment of Night Glow sociedad anónima, not because it had any contractual obligation with it, something that is overwhelmingly ruled out and about which, unnecessarily, the appellants insist, because it is not the object of discussion. The liability arises from a criminal act, from a crime and the extracontractual consequences it brought about. It is, therefore, irrelevant whether the meetings held at the Banco Elca facilities in San José committed it contractually or not; or whether those monies were destined to be deposited in it or not; or whether Gaber and his representatives were susceptible persons to be confused. The crux of the matter does not lie in what the commitments acquired by Banco Elca and accepted by the counterparty were, which is what the representatives of the civil defendant lengthily try to debate, but rather the extracontractual liability it bears by virtue of the criminal offenses committed by its representative, who, using the means and credibility that his status as president of Banco Elca and the apparent solidity thereof, from which he even offered offshore services, could deceive G. and make him deliver three million dollars. Regarding that topic, it does no justice to the ruling to cut, for the sake of conciseness, an argument, considerably documented and logical as the one made by the lower court (a quo) from folio 17290 onwards. "What remains to be determined, then, is if there are grounds to civilly condemn the bankruptcy (quiebra) of Banco Elca S.A.? That is, it is necessary to analyze whether the Bankruptcy (Quiebra) of Banco Elca S.A. has passive standing to be sued or if, on the contrary and as the defenses of the civil defendants have alleged, there is an incomplete necessary passive joinder of parties (litis consorcio pasivo necesario) either because Elca International Bank and Trust Limited or Corporación Elca Internacional S.A., which was the regulator of the group, was not brought in as a defendant. It is pertinent to open a parenthesis to indicate that the civil defense of C. as a natural person lacks standing to refer to this issue because it only affects the Bankruptcy of Banco Elca which is not represented by C. and there is a legal and asset division between natural and legal persons. That is, regardless of what is resolved on this topic, C. as a natural person always answers for the civil consequences of his crime. Despite what has been said, the topic will be addressed jointly. The unanimous view of the court is that the Bankruptcy of Banco Elca does have standing to be passively sued and that there is no pending necessary passive joinder of parties that prevents issuing a ruling. The latter because although Corporación Elca was the regulator of the economic group, its liability is subsidiary (Article 142, second paragraph of the Organic Law of the Central Bank) and, in any case, C. openly said —including to the offended entity— that the Belize offshore company (which he indicated was already in operation or omitted to say that it lacked a license to take deposits) was a branch of Banco Elca S.A. and not of the Corporation, although indirectly it did belong to it. If it was a branch of the bank, Banco Elca S.A. (today its bankruptcy) answers for it as the President of said bank mentioned it as another service of the bank, an aspect in which —precisely— the artifice consisted. In this sense, refer to what was already said in section VI.1.(ii) (iii) of this judgment. On the other hand, Elca International Bank and Trust Limited was the artifice deployed by the accused A. If he had offered documents of a non-existent entity, that non-existent entity could not be sued. In this case, he offered to invest in an existing entity but without a permit to take deposits at that time and issued certificates in its name but without registering the monies in it, so it is he and the bank of which the offshore was going to be a service that must answer. Lastly, if there were any liability of Elca International Bank and Trust Limited (whose name changed to Interbank and Trust Limited) it would be joint and several and in that case the creditor may choose against whom to direct their claim (Article 640 of the Civil Code: "The creditor may claim the debt against all the joint and several debtors simultaneously or against only one of them"), without prejudice to the co-debtor summoning the other co-debtors, a power that was not exercised in this case by the civil defendants. The passive standing of the Bankruptcy of Banco Elca comes from two sources. First, because the law itself establishes a strict liability (responsabilidad objetiva) —which merits no assessment whatsoever— and is based on a kind of protection for third parties who saw the administrator acting in representation of the company and, although it seems contradictory, in a form of 'objectivized sanction towards the company for the fault in eligiendo and in vigilando' with which it acted when choosing said officer. Thus established by Article 106, subparagraphs 2 and 3 of the Penal Code when stating that jointly and severally obligated with the perpetrators of the punishable act for the payment of damages and losses are 'the legal entities whose managers, administrators or legal representatives are found responsible for the punishable acts' as well as 'the (...) legal entities owners of establishments of any nature, in which a punishable act is committed by their administrators, dependents and other workers in their service'." In the same vein, Article 137 of the 1941 Criminal Code (rules on civil liability in force under Law No. 4981) establishes that corporations are jointly and severally liable with the perpetrator "for frauds, defraudations, and forgeries of any kind that, in the exercise of their powers and on account of and in the performance of the service of those entities, are committed by their directors, managers, administrators, agents, or employees." It has been duly demonstrated, as extensively set forth when evaluating the evidence, that C. was the President, representative, and de facto administrator (with hierarchical authority superior to that of the general manager) of Banco Elca S.A. and that, acting in the functions proper to his position, he offered the offended entity the offshore services of that bank in Belize—which bore the name Elca International Bank and Trust Limited—thereby leading it to believe that it was the same entity, as normally operated in other banking institutions in the country. C. has been found to be the responsible perpetrator of the crime of fraud, an unlawful act that was consummated at the facilities of Banco Elca in Costa Rica when R. appeared to deliver the check for three million dollars and, because A. was not there at that moment, it was received by H. who, after a prior telephone communication with A. who gave him the instructions to follow, wrote a note—on Elca International Bank and Trust Limited letterhead—giving instructions on how to proceed with said money. Therefore, the joint and several civil liability of Banco Elca (now of its Bankruptcy represented by the Liquidation Board, which is the successor of that legal entity) is imposed. Both doctrine and jurisprudence have already pronounced on this matter: “…since 1962, our jurisprudence has established that legal entities incur direct liability for the acts of their organs, both managerial and executive, which means that the fault of the organ is the fault of the legal entity and, therefore, once the fault of the organ is established, and that it caused the damage in the exercise of or on occasion of its functions, the legal entity is automatically liable, and nothing releases it from liability (...) Therefore, if the official of a legal entity is criminally liable for a crime committed in the exercise of his functions, the legal entity has no other way to exonerate itself.” TAMAYO JARAMILLO, J. Indemnización de los perjuicios en el proceso penal. Biblioteca Jurídica Diké, Medellín, 1st edition, 1993, pp. 137-138. "...by mandate of Law, the civil liability of legal entities is exhaustively determined, whose managers, administrators, or legal representatives are found liable for punishable acts. Said norm does not establish any exception, in such a way that it is not possible to disapply it even in the event that the civilly liable legal entity is itself the party offended by the criminal act committed by its representatives; to act otherwise would be contrary to Law and therefore the request of the appellant must be disregarded." Third Chamber of the Supreme Court of Justice, Voto Nº 2005-1114 at 15:45 hrs. of September 29, 2005. But, on the other hand, even if there were no legal provision in that sense, said liability would equally be established because if the analysis of the circumstantial evidence is carried out, it is then determined that there is no possibility of understanding that passive legal standing is held solely (although it may also be jointly and severally liable, in which case the creditor reserves the possibility of proceeding against whomever it deems pertinent, without having done so in this case and without that implying any procedural sanction against it: Articles 637, 640, and 646 of the Civil Code) by Elca International Bank and Trust Limited, as argued by the defense of A. and the Liquidation Board. This is so because A. created an artificial, fictitious situation to make it seem that it was just another operation of Banco Elca S.A., in which case, in application of the theory of piercing the veil and the appearance of the legal situation, Banco Elca S.A.—which was the true creator of the entire situation through its president—is the one that must answer (now through the representatives of the Liquidation Board of its decreed Bankruptcy, as provided by national legislation) since: “In large companies—very particularly corporations and other stock companies—the origin and nature of the operation, its orientation, and the radical transformations it may undergo emanate from a small group of people and sometimes from a single one, who have full dominion and governance of the company. Upon the collapse of the entity, a profound deterioration, or a maneuver aimed at defrauding other shareholders, poorly rendered accounts will hardly appear. Fraudulent acts assume other forms, of much greater caliber, which have sometimes been carried out within a more or less formal framework and within the governance powers of their leaders. But they abusively exceed what is permitted and, in violation of the duties of good administration, they profit from criminal acts and harm the rest of the shareholders or abusively obligate them (…) The most common and skillful are the emptying of companies and the veil, under which a fraudulent reality is covered.” MILLAN, Alberto. Los delitos de administración fraudulenta y desbaratamiento de derechos acordados. Buenos Aires, 1976, pp. 39-40. Circumstantial evidence constitutes the common way of proving certain types of criminality, particularly when it comes to “hiding” realities through legal shells. Therefore, in crimes such as fraud, simulation fraud, and fraudulent administration, said evidence is extremely important, which, according to the system of evidentiary freedom that governs us (Article 182 of the Criminal Procedure Code), is fully admissible (RODRÍGUEZ RESCIA, Marcos and ESPINOZA OBANDO, Marianella. Fraude de simulación, IJSA; San José, 1st edition, 1997; CASTILLO, Francisco. “La prueba indiciaria”. In: Revista Judicial Nº 1, San José, 1979; GIANTURCO, Vico. Los indicios en el proceso penal. Translation by Julio Romero Soto, Bogotá, 1974; ROCHA DEGREEF, Hugo. Presunciones e indicios en juicio penal, Ediar S.A., 2nd edition, Buenos Aires, 1997; JINESTA LOBO, Ernesto. La simulación en el derecho privado. Escuela Judicial, San José; 1990). Among the circumstantial evidence to determine the reality of what occurred—which predominates over the form or appearance given to it—which is not numerus clausus and following the exposition of the last author, the following applicable to this case appear: *Causa simulandi, motive or interest for presenting as real something that is not: C. required new investments to clean up his Bank and to be able to carry out other operations in which he was immersed. By May 2002, the bank had undergone states of financial irregularity decreed by SUGEF, A. was immersed in new financial projects (founder of Hospital Cima San José, among others), the national banking market maintained strong competition with powerful international banks arriving in the country and forcing alliances, mergers, or absorption of small banks, Banco Elca did not have at that date any offshore branch that other banks did maintain, which reduced its competitiveness. Therefore, A—who personally used to attend to important clients of the institution—in order that the various operations that M. was willing to carry out would not leave his institution, offers the services of an offshore branch in Belize that A. knew was barely in process and not yet authorized to capture funds, because F.y and G. told him so on the occasion of that specific negotiation. A. presents this as just another service of Banco Elca S.A., to the point that the money is received at its facilities, where instructions are given to the supposed bank in Belize on letterhead of the bank in Belize, which bore the same name and the same external signs as the national one, all of which is discussed before high managerial commands of the Costa Rican bank and delivering in Costa Rica, through the personnel of Banco Elca S.A. and at its facilities, the investment certificates and interest coupons of the bank in Belize, later requesting their custody. *Neccesitas: The defendant A: needed that simulated business to take place because from it he derived benefits and obtained money to meet his obligations. Note that he managed to obtain three million dollars (plus some immediate or momentary cash flow from using the bank's platform for international transfers) that ended up in the account of Bosques de Ayarco BA S.A. that he controlled, an account that A. used to pay overdrafts as indicated by H. *Affectio: the existence of family, friendship, dependency, business, or other relationships is important for the simulator. Since A could not perform the scheme by himself, he avails himself of the broad prestige and respect that all his employees and all the institution's personnel rendered him, who saw him, because he behaved that way, as the general hierarchical superior, above the general manager, and not as a "passive" board president. It is important to remember that there was not a single witness who referred to C. in a disqualifying manner. There were those who indicated that they had him "covered in medals" although later they were stripped away one by one (Varela). All witnesses highlighted his charisma, kind and respectful treatment, and the trust he inspired, to the point that he would even lead prayers in the mornings before starting the workday (in that sense, E). The unconditional trust, respect, and even admiration held for him was the norm. A. avails himself of this so that people he had brought to the bank (H. and J.) remain silent about many aspects they knew were not correct at that moment and trust that A. will not carry out any act with an unlawful result even if the means are not regulated. Therefore, in the meeting with G. and his associates, A. calls people from the bank with important hierarchical positions and before them speaks of the offshore branch as just another service of Banco Elca S.A., everyone knowing that it was not yet in operation but only in process, which gave a veneer of plausibility, before his trusted personnel, to A.'s efforts, especially when he claimed to be solvent and to commit his wealth and prestige for the final satisfaction of the client. A. puts someone of his entire trust in charge of the Belize operation, such as J, a person until then of recognized banking prestige, who had opened offshore branches of other banks (del Comercio, for example) and who held an honorary position in the country where the branch would open, so there was no reason whatsoever to doubt the lawfulness of what A. presented at that moment as real. *Notitia or knowledge of the simulation by the accomplice: how could J. not know that the offshore bank in Belize did not exist or did not have the authorizations to capture money if he himself was aware of the procedures? How could he not realize, when signing the investment certificate, about that situation? Evidently he did know about said situation and he himself said so. Even Bolívar related that F.y once had him sign other certificates from that bank and told him that the one in Belize was a clone of the one in Costa Rica and that those authorized to sign locally were also authorized abroad, which F.y himself knew was not the case. When F.y and A. signed the investment certificates of Elca International Bank and Trust Limited in favor of Night Glow S.A., they knew that the bank was not operating but that their client trusted in what they made seem real to him, both in the exercise of their positions as President and advisor of Banco Elca S.A. and acting in the facilities of this bank. *Habitus, character: any antisocial or anti-juridical conduct is important and must be taken into account. Witnesses indicated that Night Glow S.A. was not the only entity offered the offshore bank service of Banco Elca S.A., but A. offered it left and right and "his mouth could not be stopped" as indicated by H. He related that he signed certificates from that bank in favor of J. and there is also admitted documentary evidence regarding similar certificates in favor of Cori Consulting and Financial Services S.A., facts that were not the subject of this debate because a conciliatory agreement was reached. It was stated in section VI.1 (ii) (iii) that A. offered the offshore branch without qualms as just another service of the bank. This reveals a pattern of behavior of the defendant A. and the lack of fault of the victim, for all of them, recognized national and foreign businesspeople with extensive financial, banking, and investment careers, believed in A. due to the way he presented the business (in the facilities of Banco Elca, with its managerial staff, on letterhead of the Belize entity, alluding to an entity with the same name as the Bank and the same external signs, and availing himself of the trust placed in him due to the prestige he had until then). It will also be determined in this judgment that these were not the only irregular, immoral, or unlawful acts committed by A., but that, some time later, he created fictitious loans, managed to evade the normal procedure for credit applications by approving or extending them alone, in favor of companies related to himself, authorized early redemptions of certificates in favor of his family but not of third parties, and, aware of the serious situation the bank was going through which would warrant the imminent decree of a degree of irregularity by SUGEF, he created fictitious operations to "window-dress" the institution's accounting reports, etc. That is, there is simultaneous and subsequent behavior by the defendant A. that denotes disrespect for norms and procedures and his eagerness to present as real forms that were not. *Subfortuna: the lack of economic means necessary to continue carrying out banking activity on the part of the simulator is evidenced, in this case, in that, although personally and before any ordinary person he maintained a solvent economic position, the institution he represented did not have it before the banking environment. That is, he lacked the resources required to remain in the financial system with a bank open and operating regularly. Let us remember that although the certificates in question were issued in May 2002 and SUGEF notified him some time later that reserves had to be significantly increased given the various irregularities in credits that had been observed (many of which are intimately and directly related to A.'s personal management, as will be analyzed in other considerandos), several witnesses said that the bank had already been in a significant degree of irregularity, that F.y lent A. his accounts to obtain resources that he himself could no longer obtain, etc. (thus the statements of H, C, etc.), so obtaining resources was pressing for A., and doing so by pretending they would be invested in an offshore branch of that bank abroad (which, in itself, was a common practice in the country's other banks at that time) was the appropriate way to obtain them. *Banking movement: patrimonial legal transactions always entail a banking movement, especially given the magnitude of certain operations. In this case, it is proven that the sum of three million dollars—along with other unclaimed amounts—was debited from the account of Montañas Mágicas del Sur (also property of M.) and, with the cashier's check that was created—payable to the bank in which A. held the account of his company Bosques de Ayarco S.A., having been so requested by A. as part of the procedure to deposit the money into the account in Belize—it was delivered to the person authorized for this by C., none other than the general manager of Banco Elca. Later, the money was deposited into the account of Bosques de Ayarco, property of C., as stated on folios 53-54 of the complaint file of Cori Consulting and Financial Services, and from there it went to various accounts related to C., as indicated by H. There is no record that A. ever transferred that sum to any international bank in the name of the offended entity (and not his own), so the mention contained in the investment certificates referring to Elca International Bank and Trust Limited is just that, letters on a piece of paper, without that money being received by the bank that, later, was authorized to operate but with a name change (folios 35 to 40 of the complaint file of Cori Consulting and Financial Services S.A.), all without the knowledge of the victim, and it was sold to the Venezuelans as A. himself stated and as recorded in the email on folio 7209 of volume XV principal, in which he attempts to disassociate himself from the obligation based on the legal forms cited, forgetting these elements that were prominent from the appearances of the business originally agreed upon. *Retentio possessionis: maintaining possession of the item or lack of execution of the simulated contract: this is evidenced when the defendants A. and F.y kept the original investment titles in their custody (the latter materially and the former by control of the situation) and did not deliver them to R., despite his constant requests. That possession of the titles was achieved, also, thanks to the trust and credibility that the cited individuals deserved and to the fact that, F.y being consul in Belize and in charge of traveling constantly, he would eventually have more facilities to negotiate the cited negotiable instruments if required (as the victim was told). However, the retention of the titles evidenced the need for the victims not to have documents that would prove the falsehood of everything that was simulated. On the other hand, the retention of possession of everything that transpired in the Bank of Belize is evidenced because even the expenses of that institution were attempted to be introduced into the financial statements of Banco Elca S.A. (see folio 10496 of volume XIX principal), which determines the control of one over the other. *Tempus: it was already stated that there is suspicion due to the time of the execution of those contracts, because by May 2002, Banco Elca S.A. required significant resources to meet the various obligations it had, including maintaining a face of normality before the national supervisory institutions. A. himself indicated that he had suffered a significant "run" of investors following acts in which an alleged investor (M) was involved, who was dedicated to picketing outside the bank, and H. related that this had harmed Banco Elca S.A. so much that C. began receiving money from "mechudos," meaning casino investors, with cash from Colombia, etc. *Insidia: maneuvers of the simulator that exceed the levels of social tolerance as it makes the victim participate in the simulation: how can one forget that A. summoned the complainant to meetings in Guatemala to make him a participant in supposed forms of payment and meetings to capitalize his investments? *Provisio: these are precautions of the simulator to achieve the end and avoid betrayal by the accomplice (Varela saw how A., shortly before the intervention, took bank documentation away; later, documents related to this operation appeared at his father's house. Álvaro Castro indicated that A. called him to tell him that he should side either with him or with F. and G. and, in that case, "little papers" that compromised him would appear, thus attempting to secure his loyalty and silence. *Incuria: carelessness in accidental elements of the simulated transaction. Notwithstanding what has been said thus far, it is clear that A. overlooked details that, however, were useful to him to induce the victim into deception. He used as the name of the offshore branch the same "Elca Internacional" that the controlling corporation of Banco Elca S.A. had (Corporación Elca Internacional S.A.), and the external signs are the same (if one observes the logo on the original certificates against contemporary documents, it is clearly perceived that it is the same way of writing the name, the same colors, etc.), and he held the meetings within the heart of Banco Elca S.A. itself, summoning the institution's managerial representatives who thus become witnesses to the proven irregularity. In this attempt to separate both institutions, A. also overlooked the fact that a special account had been opened in the name of J. in the financial statements of Banco Elca to pay the expenses of the supposed bank in Belize (folio 10496 of volume XIX) and that, to set it into operation, at a date much later than the victim's certificates, part of the local staff had to be taken there, with expenses covered by Banco Elca S.A., as the compliance officer indicated. *Inertia: the accomplice shows a passive attitude. Note that, according to what G. indicated in the debate, J. appeared willing, in the absence of C., to deliver various documents to them. He always consented that the money would be delivered, that they were making arrangements, and he gave excuses for the delay, but the one who ended up giving the final word (negotiating to convert them into shareholders of the bank in Belize and saying, simply and plainly, that he was not going to pay) was C. *Dominancia: dominant role of the principal, who in this case is A., whom everyone obeys and pays homage to, believing everything he says and trusting in everything he does. *Endoprocedural circumstantial evidence: manifested by the parsimony in explanations of core issues and eloquence on trivial or marginal topics; the occlusive and omissive conduct aimed at obstructing the evidentiary work, manifested by the initial refusal of F.y to deliver the original documents, or in the formulation of a defense strategy, material and technical, aimed at blaming everyone—except A.—for everything, and in expositions with broad analysis of small details that leave the central topic aside. All of this circumstantial evidence, assessed together, allows the conclusion that what happened was not that an international bank intervened as a third party in a national negotiation, as has been attempted to be portrayed, but that Banco Elca S.A., through its President and legal representative, simulated the existence under normal conditions of an institution to capture money in its name, money that, in reality, never entered said entity, because it was not only proven that the money entered the account of Bosques de Ayarco S.A., belonging to or controlled by C., but also that, at that time, the cited institution did not have a Belize license to capture funds. Consequently, whoever created the appearance (Banco Elca S.A. through its representatives) is the one who must answer, and not necessarily a third party whose name was used. The same would occur if the entity used had not existed at all (and not, as in this case, which was in process but could not operate regarding fund capture) or if, existing legally and lawfully, its name was used, without its consent, for the businesses of others. It is the latter who answer, and not those whose name was improperly used. All of this, of course, without prejudice to any joint and several liability that may exist (since at the time of the events, the representatives of the Belize entity were A. and F.y), which as such does not prevent Banco Elca S.A., now its Bankruptcy and the Liquidation Board thereof, from having to answer, at the free choice of the civil plaintiff, as occurs in joint and several obligations (Article 640 of the Civil Code)…. By virtue of all the foregoing, if—as has been held as proven—C. had the intention, when issuing certificates of Elca International Bank and Trust Limited of Belize, to present that institution as an offshore branch of Banco Elca S.A., the entity in which he acted as its representative, in order to later use the patrimonial and legal separation of the companies to evade liability for the money received, it is clear that he abused his right and, therefore, the legal form (two different companies) must not be considered, but rather the appearance presented to the victims (C. acting in representation of Banco Elca S.A. and committing in the name of that institution, for which it answers), and, therefore, the court—having the obligation to prevent a crime from having major legal consequences—cannot consider that Banco Elca S.A. (now its bankruptcy and Liquidation Board) lacks civil liability. It is by virtue of what has been stated that the exceptions of lack of passive legal standing, lack of active legal standing, lack of right, and the generic sine actione agit (see folio 13853) must be rejected, and the civil action for damages filed by Night Glow S.A. must be upheld, not only against C. acting personally (as the cause of the crime) but also against Banco Elca S.A., now its Bankruptcy represented by the Liquidation Board. Night Glow S.A. has the right to have its money returned, for it was delivered in good faith and involved in a crime already declared. Although the money may have come from another entity (Montañas Mágicas del Sur S.A.), there is freedom of disposition of patrimony, and if the representative of Montañas Mágicas S.A. invested it in the name of Night Glow S.A. and the latter does not recover the investment, it is the latter that has active legal standing to sue, without prejudice to the liability the representative may have for that transfer, had any unlawful act been involved, which is not the proper avenue to declare, nor do the civil defendants have an interest in that. For purposes of active legal standing, it does not matter who is the sole owner of the shares of such entities, for its general judicial attorney-in-fact always acted in the process in accordance with the documents on folio 952 of volume III principal and 118-119 of the civil action file (among others), and the special attorneys-in-fact thereof (see folio 121 of the civil action file). A. and the Bankruptcy of Banco Elca S.A. (as the succession of the failed Banco Elca S.A.) have legal standing to be civilly sued, one being the cause of the crime and the other the company in which it was committed, by its attorney-in-fact, administrator, and legal representative, and giving the appearance of committing that institution and acting within the framework proper to its functions. There is a current interest because the damages and losses have not been compensated; they were already born into legal life, they are not expectations of right, and they are not time-barred, for the period for this runs from their recognition in a judgment (Article 138 of the current rules of the 1941 Criminal Code on civil liability under Law No. 4891 and Article 868 of the Civil Code).” In summary, as this Chamber already stated in the preceding lines, concurring with the well-considered and documented exposition of the a quo, since A. acted in his capacity as the president of Banco Elca and the credentials it possessed, the Bank assumed the condition of a joint and several obligor for the unlawful acts in which he incurred. This being so, even though the transaction for three million dollars was carried out with the alleged local agency in Belize, that is no obstacle for, in non-contractual terms, the Bankruptcy of Banco Elca to assume that liability. Both grounds lack merit.

XXXVIII.- As a fourth ground of form, the appellants return to the issue that only the plaintiffs claimed to be unaware that the offshore agency of Banco Elca in Belize did not have a permit to capture funds; that it later obtained that permit; that the transaction with Mr. G. was a personal business of A.; and that the agency in Belize belonged to Corporación Elca, and not to Banco Elca, for which reason the latter should not answer; that it was not demonstrated that the funds were not credited in that place; that there must be sufficient provisions in said entity to honor the debt with G.; and, again, that there is no causal connection that binds or makes their represented party liable for those events. The claim is not receivable. It must be explained again to the petitioners that their analysis starts from erroneous normative premises, for it is assumed that it was a financial transaction, and based on that fact and the prescriptions that regulate the matter, they draw their conclusions.

However, as has been repeatedly stated in this decision, this was not a normal financial transaction, but rather a crime expressed through it, consequently changing the applicable regulations, as extensively explained in the preceding recital (considerando). As it was explained there, a segment addressing all the topics the appellants again raise in this ground of appeal, the parties are referred to what was decided.

XXXIX.- The next issue questioned by the appellants is the active legal standing (legitimatio ad causam) held by Night Glow sociedad anónima, which was recognized after being disputed in the proceedings, despite the fact that the money delivered to A. came from the account of another sociedad anónima owned by the same businessman, namely Montañas Mágicas del Sur. Therefore, they assert, the former could not appear in the proceedings as a civil plaintiff (actora civil) nor receive compensation, given that it was not harmed and cannot act on behalf of the other company. As no representative of Montañas Mágicas del Sur appeared, the action was neither substantiable nor grantable. Furthermore, it was not proven through the mechanisms prescribed by the Code of Commerce who the shareholders of both legal entities are. Both arguments are inadmissible. In criminal proceedings, it is not required, as the appellants indicate, for the status of shareholders to be demonstrated through the Shareholder Registry Book (Libro de Registro de Accionistas), which may be required in other procedures, but not in criminal proceedings, which are governed, as is known, by the principle of freedom of evidence (principio de libertad probatoria) stipulated in Article 182 of the Code of Criminal Procedure (Código Procesal Penal). In application of this, the relevant facts may be proven by any lawfully obtained means, such as the testimonies given at trial, none of which cast any doubt that G. was the sole shareholder of those two legal entities; rather, those who said they knew of the matter confirmed it. On the other hand, the fact that the money came from another sociedad anónima or, in general, any other person, to be invested on behalf of Night Glow, does not mean that the former, and not the latter, had to appear. The important thing is that the latter is the injured party, because the money was deposited for its benefit. Consider, for example, funds that any person deposits for the benefit of another, or lends to them for investment. Obviously, in such situations, the one offended by any misconduct is the beneficiary of the deposit or loan, and not the one who delivered the money under any title (depositor or lender, for example). In short, as in any other similar scenario, the aggrieved party is the holder of the right, the one for whose benefit the deposit or investment was made, and not the source of the funds’ origin, since nothing prevents, in accordance with the principle of free disposition of assets (principio de libre disponibilidad patrimonial), any person from making an investment for the benefit of another (provided the latter does not reject it), the latter, and not the former, being the one that would be harmed if those funds disappear or deteriorate. In summary, the fact that the money invested for the benefit of Night Glow came from Montañas Mágicas del Sur, or any other company or person, did not imply that the latter had to appear in the trial, because the status of injured party (ofendida) belongs to Night Glow, and not to the source of the funds, whose origin or title is irrelevant for these purposes. On these issues, it is again worth referring to what was established by the lower court (a quo), which stands out in clarity and forcefulness. “Regarding the substantive exception (excepción de fondo) of lack of active legal standing (ad causam), it is also not deemed sustainable because, as will be extensively analyzed when the specific topic is addressed, G., as the sole owner of the share capital of Night Glow S.A. (as indicated by both himself and R. and J., and as recorded in the documents on folios 16144-16149 of main volume XXVI and 16630 of volume XXVII, which is a public document and has not been argued as false in the corresponding manner: Article 370 of the Code of Civil Procedure (Código Procesal Civil)), is the one who delivers the money and authorizes R. to hand over the cashier’s checks to make the investment of three million dollars. According to the instructions given, R. delivers the money to H. – on the orders of C., who was acting as President of Banco Elca (since A. was not present at that moment, as indicated by H., who stated that he called him and A. told him to receive the checks and gave him the specifications for making the certificates of deposit (certificados de inversión) in the name of Night Glow S.A.) – so that the former, in the aforementioned capacity, has legal standing (está legitimado) to sue the person who subsequently refused to return the invested resources and who had given him incorrect information about said investment, that is, the defendant herein, who acted, at the time, both in a personal capacity and in his capacity as President of Banco Elca S.A., for which reason he may now be sued in a personal capacity and the same may be done regarding those who now hold the representation of Banco Elca, as will be analyzed in due course. The statements of Mr. C.’s defense, in the sense that it was not proven that M. is the owner and sole shareholder of Night Glow S.A. or of Montañas Mágicas S.A., or that the money belongs to this entity and not the former, for which reason the representatives of Montañas Mágicas del Sur S.A. are the ones who must sue, are also inadmissible. It must be remembered that in criminal matters the principle of freedom of evidence applies (Article 182 of the Code of Criminal Procedure), so everything can be proven by any legitimate means of proof, unless there is a prohibitive provision to the contrary, which does not exist for these purposes. Mr. G., as well as Mr. R. and J., stated that both Montañas Mágicas del Sur S.A. and Night Glow S.A. are companies whose sole shareholder is Mr. G., and that although the money was taken from the accounts of the first company, it was to invest in certificates of deposit in the name of the second company, the principle of free disposition of assets existing to make this possible, so that the entity with legal standing to sue is the company in whose name the certificates of deposit were constituted (Night Glow S.A.), even if the resources may have come from another source, and therefore, no defect is observed in this regard. Moreover, should any dispute arise regarding the ownership of the money, it is something that the entities Montañas Mágicas del Sur S.A. and Night Glow S.A. must resolve, without the civil defendants (demandados civiles) or criminal defendants (acusados penales) having any interest in the eventual controversy that might arise, since these are legitimately subject to being sued by those in whose name the titles were drawn up, as was indeed done, regardless of whether or not any agreement mediated the preparation of those documents.” (folios 17037-17038). It is therefore explained that, contrary to what was maintained by the appellants, the sociedad anónima Night Glow did indeed have legal standing to appear in the proceedings, and that Mr. G.'s legal representation (personería) over it was correctly accredited. Consequently, for all the foregoing, the ground of appeal is declared without merit.

XL.- In the last procedural ground of appeal, the appellants assert that the judgment granted the liquidation of interest on the sums owed even after the declaration of bankruptcy (quiebra) of Banco Elca, which was declared on February 24, 2005. This goes against what is established by Article 885 of the Code of Commerce, which immediately stops the accrual of ordinary and default interest (intereses corrientes y moratorios) vis-à-vis the bankruptcy estate (masa) as of that moment. They add that, apart from marking a disadvantage for the other creditors, it represented an excess on the part of the lower court (a quo), by performing a liquidation that the civil plaintiff (actor civil) did not make, which should have been rejected as generic. Furthermore, they say, the rate used is that applicable to civil obligations, which is incorrect. Finally, the complainants say, the request was to protect the deposits, whereas the lower court grants them as compensation. The argument is inadmissible. Indeed, the rate used is that corresponding to civil obligations, because the liability (responsabilidad) that arose from the events is civil in nature (de carácter civil), and not mercantile or of any other kind. It must be remembered, once again, that this does not originate from a mercantile act, but from a criminal act, therefore civil legislation is applicable in this regard. For this same reason, the cessation of interest ordered by commercial legislation regarding the obligations of the entity from the date of bankruptcy, is not applicable to this case, in which what is being dealt with is not a mercantile obligation and its ordinary or default interest, but a civil liability (responsabilidad civil) arising from a crime, which has a status that indeed makes it different from the other obligations of the bankrupt entity, which arose as commercial in nature and, consequently, are governed by the regulation that imposes such cessation. But, as has been tirelessly emphasized, in this matter the category and legal discipline of the facts is different, as we are dealing with a criminal offense (ilícito penal) and not a mere mercantile transaction, a distinction that the appellants have systematically omitted. Moreover, it is not true that the plaintiff (actora) did not present a liquidation of the sums claimed. For this purpose, reference was made to the rates in force in each period, which are and can be known to the interested parties. In other words, when indicating that the interest liquidation must be carried out according to the rate in force during the different periods comprising the elapsed time from the punishable act, it is not necessary to ritually mention the different rates in force in each period, since these are set by the Central Bank of Costa Rica (Banco Central de Costa Rica), and they do not need verification as they are a parameter of general knowledge. On the other hand, the legal concept under which the compensation for interest is requested is irrelevant, as it falls to the Judges to apply the current regulations, in accordance with the principle of iura novit curia, since this is a matter of Law. The relevant point is that the party has demanded such compensation and it was grantable, even if the normative basis was different from that mentioned by the plaintiff.

XLI.- In the substantive ground of appeal, the issue that the interest was not liquidated by the plaintiff (actora) according to the rate in force for each of the periods elapsed is raised again, such that by making the calculation on its own account, the Trial Court (Tribunal) substituted the plaintiff’s will and granted more than what was requested. The issue has already been discussed and resolved in the preceding recital (considerando), so the ruling established therein must stand.

XLII.- In the sole ground composing the appeal by adhesion (recurso por adhesión), the legal representative (apoderado) of the complainant (querellante) and civil plaintiff (actora civil) complains of the incorrect application of the substantive law (normativa de fondo). He maintains that, when liquidating his fees, the lower court (a quo) applied the fee schedule (tabla) of Decree No. 20307-J, but that his intervention and that of his client in this matter began on August 22, 2005, when the new tariff, Decree No. 32493-J (in force since its publication in La Gaceta No. 150, of August 5, 2005), was already in effect. He indicates that, although that decree contains a transitory provision stipulating that already initiated proceedings are governed according to the repealed schedule, the truth is that, for his client, the proceeding began in August 2005, when she intervened in this case. The ground is not admissible. Before addressing the claim, it must be clarified to the party that the counter-evidence (contraprueba) to the testimony of Dr. Carazo Serrano, offered by the adherent at folio 18412, ceased to have procedural relevance, as the testimony of said physician was rejected in this venue (folio 18550), so its presentation was not pertinent. Regarding the argument presented by licensed attorney R., it must be noted that proceedings do not begin for a party when they intervene, but rather when the processing of the case has started. Consequently, even though the intervention may be late, the truth is that this cannot lead to maintaining that the “proceedings began” only then, which would make the “start” of each proceeding relative to each intervening party, with the consequence that, as in this matter, professional fees would be diverse according to the date participation in the proceedings began. On the contrary, it must be clear that the start of the proceedings is one thing, and the start of the intervention in them is another, which are not the same. The former can develop and exist even if a specific party does not intervene, or when their intervention is delayed; the latter begins with the processing or, as happens here, finds it already initiated. Therefore, it is not admissible to argue, as the appellant says, that because his client appeared in the proceedings on August 22, 2005, the applicable fee schedule is the one published a few days earlier, because this contains a transitory provision which provides that for matters already begun, the previous schedule would continue to apply. Thus, as this case is among those that had been initiated before the promulgation of the professional fee schedule of 2005, it must continue to be governed by the one that preceded it, that is, Decree 20307-J. In conclusion, the point is correctly resolved by the Trial Court and the appeal must be declared without merit.

XLIII.- Regarding the evidence (probanzas) presented by defense counsel Elizondo Breedy on June 29, appearing on folios 18673 and following, it is worth noting that, as the appellant himself acknowledges, as to the nature of the back-to-back operations, they do not provide any novel argument, since that element was already discussed pages before. The fact that they were carried out by the representative of Banco Elca’s creditors on the Liquidation Board (Junta Liquidadora) does not add any further factor of consideration to the actions of A. that are analyzed here, nor do they detract in the slightest from the fraudulent maneuvers that were developed under the pretext of said operations.

XLIV.- Subsequently, regarding the conduct observed by the accused A. as a person deprived of liberty, and the request that the “cruel penalty” (in the words of the defense counsel) imposed on this fifty-year-old citizen be reduced, the matter was also resolved in the preceding pages, declaring that said penalty is not considered disproportionate, and the conditions of the accused in his capacity as a person deprived of liberty may be taken into account by the Penitentiary Administration (Administración Penitenciaria) or even the Sentence Enforcement Judge (Juez de Ejecución de la Pena) to determine the specific patterns by which, according to the circumstances, the serving of the prison sentence imposed in the ruling on A. will be governed.

Therefore (Por Tanto):

The appeals in cassation and the adhesion appeal filed are declared without merit.

José Manuel Arroyo G.

Jesús Ramírez Q.

Alfonso Chaves R.

Magda Pereira V.

María Elena Gómez C. (Substitute Magistrate) A.</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'>; </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>Fraudulent Administration</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'> and </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>Use of Privileged Information</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'> to the detriment of </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>BANCO ELCA S.A.</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'>; </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>Supply of False Banking Information</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'>,</span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'> Illegal Financial Intermediation</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'> AND </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>Authorization of Improper Acts</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'> to the detriment of the </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>NATIONAL BANKING SYSTEM</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'>; against </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>J, </span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'>[…], for the crime of </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>Fraudulent Administration</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'> to the detriment of </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>BANCO ELCA S.A.</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'> and against </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>E.<span style='mso-spacerun:yes'> </span></span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'>for the crimes of </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>Complicity in Fraudulent Administration</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'> and </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>Use of Privileged Information</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'> to the detriment of </span><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR'>BANCO ELCA S.A. </span></b><span lang=ES-TRAD style='font-family:"Times New Roman";mso-ansi-language:ES-TRAD'>The following Magistrates participate in the decision of the appeal: José Manuel Arroyo Gutiérrez, President, Jesús Alberto Ramírez Quirós, Alfonso Chaves Ramírez, Magda Pereira Villalobos, and María Elena Gómez Cortés, the latter serving as Substitute Magistrate. Also participating in this instance are the licensed attorneys Juan Carlos Sbravatt<u>i</u> Montoya, Gonzalo Elizondo Freddy, Elizabeth Montero Mena, and Odilia Arrieta, in their capacity as defense counsel for the accused. Appearing as the complainant and civil actor is Night Glow S.A., represented by J.<span style='mso-spacerun:yes'> </span>and attorneys Luis Lechtman Meltzer and Gustavo Adolfo Corella. The representative of the Public Prosecutor's Office appeared. <o:p></o:p></span></p> <p class=MsoNormal align=center style='margin-top:5.1pt;margin-right:0cm; margin-bottom:5.1pt;margin-left:24.85pt;text-align:center;line-height:200%'><b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR; vertical-align:baseline'>Resulting:</span></b><span lang=ES-CR style='font-family:"Times New Roman";mso-ansi-language:ES-CR;vertical-align:baseline'><o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span><span style='mso-tab-count:1'> </span>1.-</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'> By judgment No. 165-2008<b>, </b>issued at fourteen hundred hours on the thirtieth of April two thousand eight, the Trial Court of the Second Judicial Circuit of San José decided:<span style='mso-spacerun:yes'> </span><b>“THEREFORE: </b>In accordance with the provisions of articles 24, 39 and 41 of the Political Constitution; the Inter-American Convention on Private International Law (Bustamante Code); the Vienna Convention on Consular Relations; article 26 of the Law on registration, seizure, examination of private documents and intervention of communications; article 1 of the Organic Law of the Ministry of Foreign Affairs and Worship; articles 66 and 67 of the Organic Law of the Foreign Service; articles 4, 12, 41, 47 and 66 of the Organic Law of the Consular Service; numerals 14, 32 final paragraph and 34 subsection k of the Organic Law of the Notarial Profession; numerals 1, 18 to 23, 30, 31, 45, 47, 50, 51, 71 to 77, 103, 106, 109, 216, 222, 239, 240, 241, 245 of the Criminal Code; articles 115 to 117, 120, 141-142, 147, 156-157 subsection b, 159 and 175 of the Organic Law of the Central Bank of Costa Rica; the rules in force of the 1941 Criminal Code on civil liability pursuant to Law No. 4981; articles 1, 9, 30 subsection a), 31, 175 to 179, 182, 184, 209, 238 to 243, 253-254, 257-258, 265 to 270, 311 subsection d), 324 to 372 and 376 to 379 of the Code of Criminal Procedure; articles 20 to 22, 868, 871, 1045 and 1163 of the Civil Code; numerals 2 and 35 of the Law on the Promotion and Effective Defense of the Consumer No. 7472; articles 419, 497, 529, 670, 984 of the Commerce Code; articles 17, 40, 41 and 44 of the decree on attorney fees No. 20307-J and transitory I of the tariff of fees for professional legal and notarial services No. 32493-J, unanimously on all dispositive points: <o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span><span style='mso-spacerun:yes'> </span><span style='mso-tab-count:1'> </span>(i) </span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'>The objection raised by the defense of C.<span style='mso-spacerun:yes'> </span>regarding the lack of formal requirements of the complaint and the lack of active standing of the complainant is rejected; <o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(ii)</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'> The defective procedural activity raised by the defense of C.<span style='mso-spacerun:yes'> </span>against the legality of the evidence contained in file No. 91 is rejected; <o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(iii) </span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'>The claim by the defense of J.<span style='mso-spacerun:yes'> </span><span class=GramE>concerning</span> the illegitimacy of the documents on folios 15846 to 15909 of main volume XXVI referring to account statements of Inversiones 3000 S.A. and Grupo Prisma Asem S.A. provided by the defense of C.<span style='mso-spacerun:yes'> </span>is upheld, and therefore, said documents and everything derived from them (e.g., witness references) are excluded; <o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(iv) </span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'> A <b>FINAL DISMISSAL DUE TO EXTINCTION OF CRIMINAL ACTION</b> is ordered due to death, in favor of <b>E. </b><span style='mso-spacerun:yes'> </span>for the crimes of <b>COMPLICITY IN FRAUDULENT ADMINISTRATION</b> and <b>USE OF PRIVILEGED INFORMATION</b> that, to the detriment of <b>BANCO ELCA S.A.</b>, have been attributed to him, resolving without special award of costs in both costs of the proceedings; <o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(v) </span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'>By virtue of the principle <i>in dubio pro reo</i>, <b>J. </b><span style='mso-spacerun:yes'> </span><span class=GramE>is</span> <b>ACQUITTED</b> of all penalty and responsibility for the crime of <b>FRAUDULENT ADMINISTRATION</b> that, to the detriment of <b>BANCO ELCA S.A. </b>has been attributed to him, resolving without special award of procedural and personal costs of the prosecutorial accusation.<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(<span class=GramE>vi</span>)</span></b><span lang=ES-TRAD style='font-family:"Times New Roman"; color:windowtext;mso-ansi-language:ES-TRAD;vertical-align:baseline'> <b>C. </b><span style='mso-spacerun:yes'> </span>is declared to be <b>THE RESPONSIBLE PERPETRATOR</b> of the crimes of <b>AGGRAVATED MAJOR FRAUD</b> to the detriment of <b>NIGHT GLOW S.A. </b>represented by M.<span style='mso-spacerun:yes'> </span>(cc. R. ) and J; <b>FRAUDULENT ADMINISTRATION OF MAJOR AMOUNT</b> and<b> USE OF PRIVILEGED INFORMATION</b> both to the detriment of <b>BANCO ELCA S.A.</b> and of the crime of <b>SUPPLY OF FALSE BANKING INFORMATION</b> to the detriment of the<b> NATIONAL BANKING SYSTEM</b> all in material concurrence and, in such condition, the following penalties are imposed upon him: for the first crime <b>EIGHT YEARS OF IMPRISONMENT</b>; for the second crime <b>EIGHT YEARS OF IMPRISONMENT</b>; for the third crime <b>THREE YEARS OF IMPRISONMENT</b> and for the fourth crime <b>FOUR YEARS OF IMPRISONMENT</b>, for a total of <b>TWENTY-THREE YEARS OF IMPRISONMENT </b>which he must effectively serve in the respective penitentiary center, as determined by the regulations then in force and upon prior crediting of any preventive detention served;<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(vii)</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'> The exceptions of lack of active and passive standing, lack of cause, lis pendens, incomplete necessary passive joinder, and the generic <i>sine actione agit</i> are dismissed, and the exception of lack of right is partially upheld, all interposed by the Liquidation Board of the Bankruptcy of Banco Elca and by the civil defense of C.<span style='mso-spacerun:yes'> </span>against the civil action for damages filed against them by Night Glow S.A.;<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(viii)</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'> The civil action for damages filed by <b><i>NIGHT GLOW</i> S.A</b>. against <b>C.<span style='mso-spacerun:yes'> </span></b>and the <b>BANKRUPTCY OF BANCO ELCA</b> is declared <b>PARTIALLY WITH MERIT</b>, whom are ordered to pay, jointly and in favor of the former, the following items and amounts: <b>a)-</b> for material damage the sum of<b> three million dollars of the United States of America</b>; <b>b)- </b>for loss of profit consisting of interest at the civil legal rate (six-month dollar certificates of deposit of Banco Nacional) on the aforementioned sum from the seventeenth of September two thousand three until the fifth of July two thousand five and from the ninth of November two thousand five to the twenty-second of April two thousand eight equivalent to <b>five hundred seventy-nine thousand two hundred fourteen dollars of the United States of America and fifty-three cents</b>, for a total of three million five hundred seventy-nine thousand two hundred fourteen dollars of the United States of America and fifty-three cents, a sum from which the two hundred fifty thousand dollars paid through conciliations of other co-defendants for these same facts must be subtracted, leaving an uncovered amount pending payment of <b>three million three hundred twenty-nine thousand two hundred fourteen <u>dollars</u> of the United States of America and fifty-three cents, </b>which is the amount upon which costs will be calculated; <b>c)-</b> the procedural and personal costs of the civil action for damages, whose professional fees are settled in the sum of <b>ninety-eight million two hundred ninety-six thousand six hundred fifty <u>colones</u> and seventeen céntimos.<o:p></o:p></b></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(ix) </span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'>The exception of prescription of interest filed by the Liquidation Board of the Bankruptcy of Banco Elca S.A. and by the civil defense of C. is dismissed. <o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(x)</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'> The procedural and personal costs of the complaint and the criminal proceedings are borne by the convicted defendant as far as he is concerned, setting the professional fees of the complaint in the sum of thirty thousand colones. <o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(xi)</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'> The precautionary measures decreed against J.<span style='mso-spacerun:yes'> </span><span class=GramE>are</span> hereby left without effect as of this moment<b> </b>and, consequently, it is ordered to immediately communicate to the General Directorate of Migration and Aliens <b>the lifting</b> of the impediment to leave the country; his passport will be returned personally to Mr. J.<span style='mso-spacerun:yes'> </span><span class=GramE>and</span> the mortgage that encumbers the property of the Partido de San José, registration number […], must be canceled.<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(xii) </span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'>The precautionary measures decreed against the accused <b>C</b> are <b>REVOKED</b> and, due to the existence of flight risk given the high penalty imposed and the economic power and international contacts the defendant possesses, which is evidenced by the number of bank accounts and corporations that it has been proven he has managed as sole shareholder without appearing directly as their representative, all of which would facilitate his having resources to leave the country illegally and remain abroad in order to not face the consequences of his acts here established and indicated with a high prison sentence, <b>PREVENTIVE DETENTION</b> is ordered for a term of <b>EIGHT MONTHS </b>to run from this date and until the <b>THIRTIETH OF DECEMBER TWO THOUSAND EIGHT </b>or, failing that, from when the arrest is executed. Therefore, once the accused is detained, the impediment to leave the country that weighs against him will be lifted through a communication that will be made to the General Directorate of Migration and Aliens, his passport will be delivered to the person authorized by him through an authenticated document, the deposited money will be returned to the guarantor, and the mortgage encumbering the property of the Partido de San José, registration number […] in the name of Cerros de Carrillo <span class=GramE>S.A., will be lifted.</span><o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(xiii) </span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'>Once this judgment becomes final, the three investment certificates in Elca International Bank and Trust and their respective interest coupons (No. 100-1008-02 and coupons 100-1008-02-1, 100-1008-02-2, 100-1008-02-3; No. 100-1009-02 and coupons 100-1009-02-1, 100-1009-02-2, 100-1009-02-3 and 100-1009-02-4 and No. 100-1010-02 and coupons 100-1010-02-1, 100-1010-02-2, 100-1010-02-3, 100-1010-02-4 and 100-1010-02-5) will be delivered to the legal representative of Night Glow S.A., making the express warning <b>on the back of each of said documents</b> that the obligation represented therein has been declared chargeable to the joint assets of the Bankruptcy of Banco Elca S.A. and C.<span style='mso-spacerun:yes'> </span>through this judgment.<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:center 266.25pt right 478.5pt'><b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language:ES-TRAD; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>(xiv)</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'> Once this judgment becomes final, the pertinent communications shall be issued to the Judicial Registry, the Sentence Enforcement Court, and the National Institute of Criminology, and the sentence calculation order shall be issued. By reading, <b>NOTIFY</b>. <b>Ileana Méndez Sandí, Edwin Salinas Durán, Rosaura Chinchilla Calderón.”</b> (sic).<b> </b><o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;text-indent:35.5pt;line-height:200%; mso-pagination:widow-orphan'><b><span lang=ES-TRAD style='font-family:"Times New Roman"; color:windowtext;mso-ansi-language:ES-TRAD;vertical-align:baseline'>2.-</span></b><span lang=ES-TRAD style='font-family:"Times New Roman";color:windowtext;mso-ansi-language: ES-TRAD;vertical-align:baseline'> Against the preceding ruling, attorney Gonzalo Elizondo Breddy, in his capacity as co-defense counsel<span style='mso-spacerun:yes'> </span>for the accused C, filed an appeal in cassation. Attorney Juan Carlos Sabravatti Montoya, in his capacity as defense counsel<span style='mso-spacerun:yes'> </span>for the accused C.<span style='mso-spacerun:yes'> </span>filed an appeal in cassation. The accused C filed an appeal in cassation.

Licentiates Manuel Eduardo Campos García and Leonardo Antonio Madrigal Moraga, in their capacity as special judicial representatives of the defendant Civil Bankruptcy of Banco Elca S.A., filed cassation appeals.

**3-** An oral and public hearing was held at eight forty in the morning on January twentieth, two thousand nine.

**3.-** Following the respective deliberation, the Chamber considered the issues raised in the appeal.

**4.-** The pertinent legal requirements have been observed in the proceedings; and, **Whereas:** **I.-** The defense counsel for C. filed cassation against judgment # 165, issued by the Criminal Court of the Second Judicial Circuit of San José, at 2:00 p.m. on April 30, 2008, in which the accused was declared the responsible perpetrator of a crime of aggravated major fraud, one of fraudulent administration and use of privileged information, to the detriment of Banco Elca, a corporation; and a supply of false banking information, illegal financial intermediation, and authorization of improper acts, to the detriment of the national banking system. As a result, he was sentenced to a total of twenty-three years in prison. In the first ground of the appeal, the defense counsel alleges lack of authenticity of a key piece of evidence, which was a letter addressed to Mr. Arnoldo André Tinoco, signed by the Head of the Finance Department of the Supervision Sector of the Bank of Belize, Ms. N. That document, states the complainant, was not presented to the Ministry of Foreign Affairs of that country, but to its embassy in Guatemala. There, what was done was to certify that it was a faithful copy of the original, but not to verify what position the signatory held or that the signature appearing there was indeed hers. The claim continues, explaining that there should have been a “chain of authentications” regarding the verification of the value of those documents. Given that this document was used to establish that the unrestricted Class A license as an offshore entity was granted to Elca International Bank and Trust Limited, Article 182 of the Code of Criminal Procedure and Article 39 of the Political Constitution were violated. In conclusion, he indicates, *“the appropriate evidence to demonstrate that the money may have been diverted is certification that those funds were not deposited in EITB-Belize, and that evidence was not collected in the investigation. Banks have many ways, and many operational accounts, to circulate monetary transfers from one place to another”*. The claim is not admissible. It must be established from the outset that the fact that a document does not comply with all consular procedures does not mean it loses all value. Even so, it continues to be a document that, without being a certification, provides an element for assessment. However, that is an issue that has no major relevance in this case. It must be clear from now on that dispensing with a piece of evidence implies that the fact or facts that were taken as proven based on it must be considered unsubstantiated, because if, by hypothetically suppressing it, there are other convincing factors that sustain those conclusions, the matter will lack procedural interest. This must be noted because, as will be seen throughout this judgment, the argument that, because a piece of evidence is not lawful or conclusive, or because certain formalities unrelated to criminal law or the events investigated here were not met, certain facts must be considered unsubstantiated, will be persistent. Returning to the ground in question, it must be said that, as the defense counsel himself acknowledges, this alleged defect was not timely challenged by the interested parties. However, it must be reiterated, the issue is of no greater interest, given that, with or without this evidence, the truth is that there are abundant elements to establish as true that the offshore division of Banco Elca did not have a permit to operate in the Republic of Belize when A. began offering it as a destination for attractive investments (it paid higher interest than in Costa Rica), which is why Mr. M. decided to invest three million United States dollars (hereinafter simply “dollars”) there, which were handed over to the accused and never reached their destination nor were they returned to him. So much so, that to categorically elucidate the doubts raised by the defense counsel regarding the availability of pertinent evidence, it is appropriate to transcribe *in extenso* the exposition made by the lower court (a quo) on this matter. *“Likewise, J. emphatically stated that Banco Elca did not have an offshore branch, although since he joined the bank in 2000, he heard that steps were being taken to create one in Belize, which was the responsibility of J, adding ‘...that was a taboo subject at the bank, it was not advisable to talk about it at the bank. J. used to tell the bank executives not to mention that they had an offshore branch, the national financial sector had options from banks that did have them and we did not, which took away our competitiveness, **it was not permitted to say that we were creating it**. Mr. J. sometimes asks me for staff and sometimes, without my permission, he would take them to go to Belize. Elca International Bank was what the offshore branch was going to be called. All of a sudden the bank’s financial manager told me, I don’t know if it was four or seven million dollars, that were in the bank, in certificates of deposit (certificados), they were canceled, that’s what R. or W. told me, and they took the money to Belize, and that caused problems because the deposit portfolio dropped (...) I never physically saw an investment certificate from Elca International Bank (...) B. was the acting business manager, he called me that J had arrived, and told him to sign an investment certificate from Elca International Bank, he told me about it and I told him how could he think of signing that if he didn’t work for that bank, I didn’t physically see the document but he told me and was very worried. I never knew that the bank was authorized to carry out operations, I believe it was never authorized.’ a version that was supported by M. who added ‘I know that an offshore branch was being created in Belize, Elca International Bank, but I understand it wasn’t operating, I found out about that from a Mr. J. who had problems with a certificate from that bank that I had signed at Mr. H’s request, he went all the way to Belize and could not cash it, he told me that that bank didn’t exist (...) Mr. J. came looking for me at Banco Cuscatlán, when I signed the certificate Mr. J. told me that the offshore bank was a clone of Elca Costa Rica, that those of us authorized here were going to sign the same way there, that he was looking for me because Mr. H. wasn’t there, nor Mr. C. (...) I was Mr. H.’s assistant, but he had no relationship with the offshore branch, it was Mr. J. who handled everything related to the offshore, I didn’t meet any offshore staff, I don’t know if I signed another document, I am clear about that one because the gentleman came looking for me and I saw it, I don’t know where the document was issued (...) when I signed Mr. P.’s certificates it was normal to sign various documents, one acted in trust, it wasn’t so common to sign investment certificates..’. This statement is credible even if it is denied that H. had a relationship with the offshore bank in Belize, an aspect that partially contrasts with what G. himself indicated and with the documents signed, in the name of Elca International Bank and Trust Limited, by F. and G, to pay C. (folios 6884 of principal volume XV and 7367 to 7371 of principal volume XVI which are, in turn, certified copies of evidence files 21 and 25, respectively, documentation seized at J.’s house) although this point is irrelevant for the purposes of this case. Regarding this, Mr. H, general manager of Banco Elca S.A., indicated ‘J, the deputy manager, and I, in private, told Mr. C. our concerns (...) we did not like lending the bank’s platform (...) we told him that, regarding the Belize investment, neither Mr. J. nor any of the administration officials had any involvement in the bank in Belize (...) a call for attention was made that the bank in Belize was not the same as Elca, even though J. had told him repeatedly that it could not operate and that Mr. C. was offering it (...a) Mr. J. (...) was entrusted with opening a banking license in Belize, it was the only bank without an offshore bank. The decision was made to establish it, but it was not part of the Corporation even though the partners, natural persons, were quite common (...) In administration, we didn’t like that offshore matters were handled at Elca if they were not related, and that’s why F.’s office was moved to an office in La Sabana. The offshore bank was established and obtained its operating license around 2002, but to take deposits (captar) it obtained it on a date after the deposits were made (...) Despite the fact that it could not take deposits and my and J’s warnings, **not only G. but other persons were offered the possibility of making these investments, and Mr. C. did that directly** because I did not allow things to be confused, and J. became angry **when, in a meeting at the bank, that was offered to a client**. J. was very reserved regarding Belize matters, and as far as I know, he made no offers, nor did I, nor did any bank official (...) **Offers for investments in the bank in Belize were made at Elca’s facilities** but they were not offered by the corporation, the administration did not agree but we couldn’t silence Mr. C, the person offering that was Mr. C, he handled very important clients and was in charge of handling clients of a certain magnitude. (...) **I know for a fact that the facilities were used to offer the international bank, I heard Mr. C. make the offers** and I heard Mr. J. scolding Mr. C. because **the investor was confused because a bank that was not part of the corporation was being offered as if it were, and that was not being told to the investor.** We were worried that Mr. C. was assigning a bank officer to give them information, and she (M. for example) had no idea what they were talking about, and that’s why J. entered the scene. I find two or three more clients who invested in the bank in Belize (...) The license as a bank existed, but not the license to take deposits, and before that, offers were indeed made, not because I heard them but because I found out, one of those is that of C. (...) Mr. C. openly offered the bank of belice (sic) and J. was like a tomb (...) the creation of the Bank of belice (sic) was not a decision by Elca’s Board of Directors, it was Mr. C.’s and his partners’ (...) Mr. C. was obviously warned that the bank was not authorized to operate (...) as well as not to mix Belize operations or Elca officials in that type of transactions (...) In Elca International Bank and Trust Limited, I don’t remember if at J.’s request I signed something for KPMG (...) I have never been to Belize’. But the matter also came to the attention of SUGEF, as Ms. C, General Director of Private Banks of that entity, stated: ‘In August 2002, Mr. B.A., the former superintendent, received an anonymous email that reported that Elca had an entity domiciled abroad. It indicated that the Central Bank of Belize had authorized a banking license but they were formalizing it, follow-up was given, and in September 2003, Mr. C. reported that the Board of Directors had agreed that the company was not going to be part of the financial group. We were very clear that this entity had to be part of the group and that they had to request authorization for the offshore and incorporate it into the financial group, hence the report. He said they were going to be outside Corporación Elca, and I was told Elca Bank & Trust or something like that, and he was told they had to proceed to eliminate the name Elca so as not to create confusion among the public. In October, we responded to J., indicating that they were not going to carry out intermediation operations in Costa Rica and that they had reserved the new name of the bank, which did not include the name Elca. I don’t know if the bank began to operate. I know H(...) I am unaware if he had a relationship with the offshore bank. An offshore entity operates outside the country, the local bank of an offshore group may provide certain services to an entity domiciled abroad, provided that it is part of the financial group and there is a contract that regulates this situation. There is no possibility of taking deposits if it is not part of a Costa Rican financial group, it is only a transfer of funds at the account and risk of the one who does it (...) I don’t know if Elca’s Board of Directors approved that offshore, nor did they inform me. The definitive name of the bank in Belize was Interbank and Trust, I don’t know if it operated’ a statement that finds support in what was established by official communication folio 4413 (principal volume X) signed by S. and addressed to C, as the legal representative of Corporación Elca Internacional, on February 17, 2003, and received by general management on that same date. Therein, A. is reminded that since **December 18, 2002** ‘this Superintendency requested information about the current state of the efforts that **Financial Group** is making to obtain a license to operate an offshore bank in Belize and the date on which they expect to begin proceedings before SUGEF for the acceptance of said jurisdiction, prior to the request to incorporate said entity into the Financial Group, without it having been answered to date’, which is consistent with the reference made by the official receiver (interventor) M. when saying: ‘I did not participate in the period prior to the intervention, but it was indeed mentioned to us that the group had sought to establish an offshore in Belize and had reached an agreement not to include it in the financial group, and the efforts were carried out by Mr. J. People appeared claiming they had intervened in the bank or through the bank, Carabetta with Inversiones Savinelli and Cori Consulting appeared claiming that, that they had made efforts at the bank but not necessarily in the offshore.’ The fact that the offering of securities from Elca International Bank and Trust Limited was made to various people finds evidentiary support in the documents from folios 1064 to 1071 of volume III. There is a copy of a note (with the received stamp of Banco Elca, General Management, and addressed to the general manager of Banco Elca) dated October 1, 2002, in which the representative of Cori Consulting and Financial Services S.A. delivers to Banco Elca the originals of the interest coupons of Elca International Bank and Trust Limited for custody, and for them to be cashed and deposited "free of national bank fees" on the maturity date. There is no document that determines that H. formally formed part of the representatives of Elca International Bank and Trust Limited, therefore, the fact that this correspondence was sent to him and that he was aware of those operations, denotes that the offshore operations in Belize were considered just another service of the Costa Rican Banco Elca S.A. because, otherwise, how to explain that this note is sent to the general manager of this institution? Would it be sent in the same way to the general management of any other bank? Evidently not, but only to related institutions or those that provided the service referred to there. It should be noted that according to the document on folio 42 of volume I issued by the Central Bank of Belize, it is precisely on that October 1, 2002, that the bank has a permit to operate as an offshore entity (without yet having a license to take deposits, which they would achieve until early 2004) and by then, not only had other certificates and their interest coupons been issued, but they were close to their maturity date. Likewise, in volume XV (documentation seized at J.’s house) there is a certified copy of evidence file No. 19, which contains copies of certificates issued by Elca International Bank and Trust Limited, with the same format as the one presented by the plaintiffs, signed sometimes by J. and other times by him and C., and issued from February 2003 onwards in the name of entities such as F.y Rosados S.A. or Olga Rozados Pazos, Arjuna Limited, Veda Inc., Nirvana Inc., Jiva Inc., Rank Inc., Deva Inc., Sage Inc., Sahara Inc., Valley International Inc., and Top-co. Inc. (see folios 6608 to 6612 to 6623), without forgetting the documents that, in the same sense, Bolívar was asked to sign in favor of Mr. Penón, according to what that witness stated. Of course, the matter was known by the person in charge of creating that branch, J, who said that "he (C.) offered it (referring to Elca International Bank and Trust Limited) as one offers confetti on Central Avenue, I clearly told him it couldn't be done, but he put the entire corporation at its service, like a package." Moreover, from some correspondence issued by F., it becomes clear there was an initial interest that the Bank be part of the Elca Financial Group of Costa Rica, and that if this could not be accomplished, it was due to the interventions of the authorities of the respective countries, such as SUGEF in Costa Rica (through the mechanism mentioned above and described by Ms. C.) or due to opposition from the Central Bank of Belize to requirements from North American authorities. Thus, in principal volume XV there is a certified copy of evidence file No. 21 (documentation seized at J.’s house according to seizure record 362112 of July 22, 2004, visible on folio 573 of principal volume II) and on folios 7290 to 7292 there is a copy of a memorandum addressed by J. (representative of Cori Consulting and Financial S.A.) in which F. indicates to Tinoco that the Bank in Belize starts operations on January 16, 2004, and that it could not be put into operation before because the United States began to ‘...require from the offshore centers their collaboration so that in cases where there are related banking operations (parallel banking structures) (by management or affinity of their shareholders) with other financial districts (Case of the Elca-SUGEF Financial Group), uniformity criteria should be promoted so that a single regulator controls two or more groups/banks...’ and adds that the new license is in the name of Interbank and Trust Limited and was not objected to by SUGEF provided it was an international bank and was not included in the Elca Financial Group. That is to say, the name change was not only due to the recommendation of SUGEF before the confusion produced among investors (and this Court adds, no longer only because of the similar name "Corporación Elca Internacional"/"Elca International Bank..." and the almost identical logos, but because of the common use of facilities, personnel, and even the attempt -stopped by SUGEF- to include the expenses of one in the financial statements of the other entity) but to the variation of having it no longer as an offshore of the national bank but as an international bank. Even this last aspect was referred to differently by C. in his pre-trial statement (indagatoria). While in the hearing, he indicated that ‘The offshore bank is developed as an alternative for competitiveness, it was to manage it as a foreign bank, it is not really an offshore but an international bank managed abroad,’ thereby committing a true lapse by initially acknowledging that it was an offshore branch (that is, part of Banco Elca S.A.) and then, when made aware of what he had just said, clarifying that it was not such but an international bank, in his previous pre-trial statement (folios 4043 to 4089, especially folios 4088 ss.

from volume X, which can be assessed in accordance with the provisions of numeral 343, third paragraph of the Code of Criminal Procedure (Código Procesal Penal), refers to the Belize bank as the "offshore bank" and to the fact that G.'s investments in Banco Elca were very large sums, which implies his acceptance that this business was proposed as if it were an investment in the national group and another service of Banco Elca S.A. Here, the accused mentions a possible investment at the Guatemala meeting but conceals that, by then, it had already been made. From this group of evidentiary elements—whose declarations were clear, precise, correctly withstood cross-examination, without the court having any reason to doubt their credibility since their statements correlate with each other and with other evidentiary elements, all reasons for which they deserve, in general, absolute credibility unless expressly indicated otherwise, in which case the reason was explained—<b>it can therefore be concluded</b>, with absolute certainty, <b>that the defendant C. intended to create an offshore bank in Belize and offered it—even without having a deposit-taking license there and without being integrated into the economic group in Costa Rica—as part of the services that Banco Elca would provide, since his bank was one of the few in the national market that lacked that service, which made it less competitive.</b> Although subsequently, at the request of SUGEF and due to complications in the Belize proceedings, the Elca International Bank and Trust of Belice changed its name to Interbank and Trust Limited and it was established that it would be an international bank unlinked from the Elca Economic Group, both in its initial conception and in the practical way A. handled the matter (expenses of that bank were intended to be introduced into the financial statements of Banco Elca S.A., A. offered it as a service of said bank, the same name and logo were used, there was confusion of personnel and tasks because officials in Costa Rica could be treated as if they were those in Belize, Costa Rican facilities were used for functions of the supposed Bank of Belize to the point that G. states he did not travel to Belize during those dates, despite which he signs documents on behalf of the Elca International Bank and Trust of Belice, changes its name to Interbank and Trust Limited, etc.), said bank was always offered as another service of the Elca financial group and, specifically, of Banco Elca S.A., and it was such to the extent that its officials were authorized or sent to go to Belize to provide computer or compliance officer services, national facilities were used, it was publicly offered to clients and other members of the Financial Group, and employees of Banco Elca S.A. were even told that it was going to be a clone of the national bank and that those authorized to sign here could do so there” (folios 17228-17235). In conclusion, as stated, there is abundant evidence that the offshore bank service offered by A. to Mr. G. (among other persons) was not operating at that time, but was part of a deception used to make them transfer money for alleged investments that never materialized as such, but rather were diverted funds, as will be explained below.

**II.-** In the second complaint, it is said that proven facts XV and XVI, which refer to the receipt of Mr. G.'s money (to be invested in the name of the Night Glow corporation) by the accused and its deposit into account No. 6096-1 at Transamerica Bank Trust Co., belonging to a company controlled by A., the Bosques de Ayarco BA corporation, is based solely on H.'s testimony. This witness, says the appellant, was the subject of a complaint by the offended corporation, but they settled for the sum of one hundred thousand dollars and his word to testify in this case. This should have been considered, as well as the fact that the check is dated May 31, 2002, and the memorandum for the disposition of funds is dated June 6 of the following year, which would have led to discarding his version that he had had to call A. for instructions. It was clear, says the defender, that G. could disobey A. Subsequently, there is discussion about the interests the offended parties might have had in a conviction of the defendant and the role that witness and J. might have played in that plan. He adds that the bank was not a "kindergarten", where A. gave orders and the others blindly obeyed. <u>The reproach is not admissible.</u> The fact that G. settled for an amount much lower than the one demanded by the offended corporation, or that he showed some level of displeasure at having been involved in these facts, is not sufficient reason to deny credibility to his statement. National jurisprudence has repeatedly stated that the credibility of evidence lies in its own coherence and plausibility, as well as in its comparison with the rest. Not in speculation about a person's motives for saying one thing or another. In this case, there is no indication whatsoever that G. did not tell the truth, so for lack of valid arguments, the defender speculates about his disposition towards A. and the benefit that others might have obtained from it. Thus, with those suspicions, there is no reason to call into question the statement of that declarant. This evidence, moreover, is consistent with the rest of the testimony given by the bank personnel who appeared at the hearing, who unanimously stated that the one in charge of the same was its owner and president, A. He was the one who gave the orders, and this is testified throughout the evidentiary synopsis, making a specific reference to it unnecessary, as it is a piece of information present in all the testimonies adduced. Therefore, it is indeed reasonable that although G. sometimes had different criteria than A., it was the latter who made the arrangements and decisions regarding relevant aspects, such as the receipt of three million dollars, received to invest in an offshore service that he had offered but that was not operating. In addition to, as witness J. stated: “I believe I could oppose C.'s orders, but if I did, being an employee, he would fire me." To conclude, it is not clear what the relevance is of the received check bearing one date and the memorandum on the destination of the funds bearing another, because for whatever reason A. was not on site, and had to be located by telephone, receiving the pertinent instructions from him (folio 17089). In summary, it is not demonstrated that G. failed to tell the truth and, by that means, that proven facts XV and XVI are unsustainable. The ground is dismissed.

**III.-** In the third ground, it is said that J.'s situation is similar to H.'s and that, surprisingly, the Court accepted as evidence some certificates that he pulled out of his pants pockets during his declaration. The defender says that said evidence is illegal, because there was no forensic document analysis (prueba grafoscópica) to establish the authenticity of the signature on those certificates, that F. has a particular interest in the outcome of the case, that they refer to a fact not being tried "and that is related to the Cori Consulting case," that Article 29 of the Law of Registration, Seizure and Examination of Private Documents was misunderstood, by making use of emails sent by the accused to F. without the consent of their author. Finally, he returns to the point of the role that both F. and G. played as witnesses interested in the matter and useful to the civil party. <u>The ground is not admissible.</u> As stated above, the personal reasons that each of the witnesses may have are inconsequential, unless they affect the credibility of the evidence. This has not been compromised, not by a long shot, by the content of their depositions, nor by the manner of testifying of the aforementioned F. and H. It is understandable that the defense resents that, to its surprise, the certificates of the money that A. had received from Night Glow corporation appeared in the hearing, as this documentary evidence showed that the defendant had indeed received such sums with the ruse that they were for investment in an offshore bank in Belize. This definitely constituted a factor that affected the defense strategy, which consisted, among other things, of denying that things had happened that way. But to go from that to it being illegal evidence, there is no identity. As correctly stated by the lower court (a quo), the principle of evidentiary freedom allows relevant circumstances to be proven by any lawfully obtained means. So, there being no illegality in the declarant F., during the trial (as a truly novel circumstance), producing said documents and making them available to the lower court and the parties (who were able to examine them and, if applicable, challenge them), these could be fully taken into account as evidence in the judgment. That these documents or an action by F. is being examined in another case, does not prevent it from being weighed by the judges for the purposes of resolving the present one. Neither did the lack of forensic document analysis (prueba grafoscópica) to verify that the signature appearing on the certificates was A.'s, because there is no indication whatsoever to suppose that the signature appearing there is not that of the defendant. On the contrary, F.'s declaration is emphatic that the signatures are his and A.'s (folio 17050), which is consistent with the persistent and irresponsible involvement that A. had with the purported offshore bank project in Belize, already extensively cited. Even more, in the email whose incorporation the defender reproaches, A. himself acknowledges that this is his signature. To conclude, reference must be made to the litigant's allegation regarding the violation of the defendant's privacy and of the Law of Registration, Seizure and Examination of Private Documents, which is also not admissible, because being F. the recipient of the electronic communication that A. sent him, he was the holder of his own privacy, and could make it available to the lower court in that sense. That is, contrary to the reading made by the appellant, it is understood that when it alludes to whether there are several holders, the rule of Article 29 of that law refers to there being several subjects located at the same end of the communication; but not when there is one subject on each side, because in this case either of them can consent to its use. So much so, that if the rule referred to hypotheses, like the present one, where there is a sender and a receiver, it would be unnecessary for it to contemplate the special situation of there being "several holders," because all communication, to be such, requires at least two subjects. That is, they would always be "several," which would make the distinction pointless. This demonstrates that, in the case of a receiver (as F. was), his authorization was sufficient for the use of said email that A. sent him.

**IV.-** In the fourth ground, the appellant states that several passages of the judgment make evident "a kind of prejudice" or "premature conclusion." Thus, he says that the lower court does not justify the classification it makes of "defrauding actions," which must be deduced from the facts and not inferred a priori. At the same time, placing certain expressions in quotation marks "reflects a pre-judgment (sic) by the Court." Saying that A.'s actions were fallacious means he is a liar, which violates the dignity of the defendant. He adds that without narrating the facts, the judgment already classifies them, besides the fact that it does not state from where it arises that the defendant told Mr. G. and his advisor that he had already completed the authorization procedures for the offshore banking to operate. He then alleges that the Judges did not state where they based their assertion that F. sent monthly accounting reports to M. about the alleged returns on his investment in Belize; that the ruling did not reflect that during 2002 the relationship between that gentleman's companies and Banco Elca was normal; that the certificates delivered to him were not fictitious, since he received interest payments; and, that the ruling does not describe how the Court obtained certainty that this sum was used to satisfy A.'s personal obligations. <u>The ground is not admissible.</u> The fact that the Court alludes to a series of actions or even to the defendant's way of proceeding in a way that is compromising or exposes him as a subject of concern, does not imply that it had a prejudiced attitude against him. Prejudice is when one holds a position prior to the trial, that is, before the evidence is presented. Not when it has already been presented and the judges have formed their opinion. In such circumstances, there is no obstacle, and it is the necessary consequence (unless there is doubt to the contrary) that the judges have an opinion about the subject, his way of acting, and his actions under discussion. In some situations, that opinion may be negative for him, as in this matter. But not because it came from a prejudice, but from a judgment based on the evidence presented. Then, if the Court puts some terms or expressions in quotation marks, it is because this is a linguistically valid resource to connote that their meaning is not the usual one, but that there is a hidden one, which in this case was inscribed in A.'s fraudulent scheme and actions, which (instead of being a position prior to the hearing, as the defender says) clearly arises from the evidence presented. These, as is known, are assessed during the judges' deliberation, who, once it is concluded, proceed to draft the ruling, expressing their decision in the document (or to state it orally on the occasions when appropriate). But in no way does it represent that the judges develop their reasoning as they draft it or set it out in the document. That is why there is no irregularity in that, before addressing the various pieces of evidence in the subsequent pages, the Court's conclusions appear in the written document (or the oral presentation), without it being that they were prejudiced or had taken a prior position, but rather it is the product of their deliberation, which has already taken place and does not develop simultaneously with the drafting of the judgment. On the other hand, it was not necessary for the Court to explicitly indicate from where it was obtained that the accused had offered the offshore banking services as if the authorization procedures were completed, because from the moment he offered them as viable (and the defender himself partially transcribes a testimony in this regard) without mentioning that they were in process, it was because, of course, its operation was already authorized, or rather, the defendant made it appear so. Furthermore, there is evidence that F. provided that investor with the aforementioned account statements (see R.'s declaration, at folios 17058 and 17061), which intended to make it seem that things were proceeding normally, when the truth is that the offshore bank was not operating and the money had not been invested. Similarly, A.'s protagonism and insistence in this defrauding stratagem logically lead one to think that he at least consented to the sending of those account statements, if they were not part of the initial plan to keep the affected parties in error. Likewise, the fact that some of the interest was paid on the money delivered to A. by Night Glow corporation did not retroactively undo the already constituted crime of fraud (estafa), in which (as has been stated so many times) G. was offered the services of a non-existent institution, so that he would invest funds that never reached their destination. On the contrary, as the lower court explains from folio 17255 onwards, those maneuvers sought to conceal what was happening and keep the offended parties deceived. Hence, even though some interest was paid, the certificates did not cease to be fictitious and become real, because neither was the offshore banking operating nor had the funds been allocated to any investment. This, in addition, makes it irrelevant that during 2002 the commercial relations between G. and Banco Elca were normal, because what matters in this case are not those facts, but the illicit acts that were ultimately perpetrated, which are not made impossible or affected by the prior good relations. To conclude, regarding the destination that, in the chapter on evidentiary reasoning, the Court stated that A. gave to the aforementioned received funds (to pay personal obligations), it was not necessary for the lower court to detail each of the payments or expenses made with those funds, something that in itself was already part of the exhaustion phase of the crime and not its consummation, which is unnecessary. It was enough, as the lower court stated and the defender himself transcribes, that one of the bank officials hierarchically closest to A. (G.) verified this, saying that the account to which the three million dollars from Night Glow corporation had been diverted was a private account of another company controlled by the defendant. The truth is that, whatever the destination, the money was not sent to the purpose it was intended for, but was diverted by the accused to an account he controlled, which constitutes the alleged financial harm and pointed to an illicit financial benefit, whether for A. (as was accredited) or for a third party.

**V.-** In the fifth ground, the complainant argues that his client was a distinguished person of blameless life, until these events, and therefore he did not need to engage in this type of action to obtain capital. "When the disbursement of the three million dollars was made, the transfer was requested by Mr. R. as directed to Transamerica Bank and Trust of Bahamas. From the beginning, the complainant party knew perfectly well that the money was not being transferred directly to Belize (sic)." He indicates that the fact that the money was not sent to Belize did not constitute a misappropriation of the same, but an irregular deposit, the bank being able to use the funds at its discretion. He says that the check for the three million dollars was made payable to Transamerica Bank and Trust, and that neither Banco Elca nor EIBT-Belize participated in that transfer.

Then, it returns to the fact that the non-existence of that offshore agency in Belize at that time was not proven; that the money received was in the nature of an “irregular deposit (depósito irregular)”; that the agreement reached in Guatemala City and the failure to request the original certificates demonstrate the trust G. still had in the accused; that, at most, it was all a violation of banking legislation; and, that A.’s willingness to put his assets on the line proved he had not acted with fraudulent intent. The claim is declared without merit. It is not worth revisiting the topic of the non-existence of the offshore bank in Belize as a service of Banco Elca, as this has already been established since the first recital of this resolution; therefore, the parties are referred to what is set forth there. Now, regarding whether the injured company and its representatives knew that the money was not being allocated to that agency, but rather to Transamerica Bank and Trust, where the accused had an account, this is an irrelevant matter, because a deposit can certainly be made to one banking entity different from the recipient of the funds, so that the former may channel them. “…common practice at that time”, said R. (folio 17057). But this in no way implies that A. was authorized to give them a destination different from the one agreed upon by the parties; namely, to invest them and not use them for other purposes, such as the personal obligations of the accused, as confirmed by witness G. Therefore, the fact that this money was channeled through that account and not directly to Belize, which was impossible given that said offshore agency was not operating at the time, but rather there were facilities simulating a legitimate operation (a matter already dismissed here), does not mean that the victim authorized a different destination for his money. This, contrary to what the defense counsel argues without any support, was not an “irregular deposit (depósito irregular)”, or an act in which someone entrusts a good or value to another’s care with more or less powers, for which a lawful transfer of possession is required. In the present matter, the transfer of possession was not lawful, as it was preceded by a deception, into which Mr. G. had been led and which has already been described repeatedly and is idle to explain again. The truth is that, even if those funds did not pass through EIBT-Belize, which was unfeasible as it did not exist then, nor through Banco Elca, what is beyond dispute is that they did pass through the hands of A., who disposed of them, distancing himself from his commitment to the investor company whose owner had been deceived, for which he used the appearance of solidity and respectability granted to him by the bank and his personal background. Therefore, to maintain here, as the accused tried to do before the creditors, that this is not a matter for Banco Elca, is to disregard the circumstances under which the deception operated. In another sense, the fact that during 2002 the business dealings of that injured party and Banco Elca were positive does not mean they continued to trust it when they reached an agreement in Guatemala, in which a new payment schedule was established. Rather, as the attorney-in-fact for Mr. G. stated, they did so to rescue “something from the wreckage (del ahogado el sombrero)”, but by that time they were certain they had been deceived, something they confirmed when A. expressly told them he was not going to pay the money owed (folios 17058, 17059, and 17061). At that same meeting, Mr. G said, “I became more convinced that A. and F. were thieves” (quedé más convencido de que A. y F. eran ladrones) (folio 17161). Thus, it is not true that by accepting that arrangement proposed in Guatemala City, the injured party condoned or ratified the actions of the defendant; rather, he was trying to recover his money, which was not possible because the alleged agreement was not honored by A. Even after that, according to witness N, “…we left convinced that we had to file the criminal action, but G. wanted a financial settlement” (folio 17141), which discredits the defense counsel’s thesis that he used the criminal process to safeguard his funds amid the bankruptcy of Banco Elca. In summary, the problem was not a matter of disrespect for Costa Rican or Belizean banking legislation or otherwise, but that patrimonial harm had been caused to G.’s company, using a deception or artifice by A., thus constituting a crime of fraud (estafa). Faced with such a situation, having left the purported original certificates in the custody of F. was definitively a mistake, as was later revealed, but at that time the fraud was not foreseen, only the breach of obligations. Once the deception was discovered and the efforts to recover the money were fruitless, the proper course was not to request the titles, but to report the facts, as was indeed done. Finally, it is not true that A.’s willingness to hand over some of his assets to cover his debts shows he lacked fraudulent intent (dolo defraudatorio). Firstly, because this would merely have compensatory value regarding the crime that had already been consummated some time earlier. And, most importantly, because those assets did not cover the amount defrauded and were not reliable. According to witness N, “…Mr. A. even offered us some properties, we went to see them but they were not worth the value or were entangled” (folio 17141).

VI.- In the sixth ground, the appeal argues that “With a total loss of the principle of objectivity, the Trial Court bases its reasoning for imposing the sanction on C. on the testimonies of H., R., and G., and takes from these persons highly subjective statements without evidentiary support in the rest of the evidence.” It adds that A. sought an arrangement by placing some of his properties at the disposal of the interested parties, which was disqualified using the criterion of witness N.; that it was not taken into account that with the other involved parties (G. and F.) a conciliation was reached for 2 and 2.5% of what was claimed from them; that Mr. G. saw payments of his interest and was able to recover “many millions of dollars.” It then questions the use given to the account of the anonymous corporation Bosques de Ayarco and that EIBT-Belize had a physical presence in that country, a matter already addressed in this ruling, so the parties must abide by what is set forth there. To finish, it states that the physical health of his client was not considered for setting the sentence, nor his family obligations with young children; that R. said that “to the question of whether he was going to pay them, he merely said, looking his interlocutor in the eye, no…”, which is a rhetorical, not a legal, resource; and, that the mid-range sentence to which the Trial Court refers is not eight years, composed of ninety-six months, as imposed on the defendant, but seventy-six months. The defense counsel is not correct. In the first place, the sentence imposed on A. is not based solely on the statements of those witnesses he criticizes. Moreover, even if it had been so, it would not have constituted an irregularity, provided the testimonies were credible and consistent, as they truly were. In any case, it is worth bearing in mind that, as stated, they were not the only pieces of evidence weighed for this purpose; rather, it suffices to read from folio 17279 onwards, although only express mention is made of them, the judgment of blameworthiness is based on the totality of the evidence gathered in this regard and on the conclusions regarding the culpability it shows in the actions of the defendant. On that subject, the Trial Court stated: “The final paragraph of Article 216 of the Criminal Code, when indicating that ‘The preceding penalties shall be increased by one third’, requires that the minimum and maximum extremes of the abstract penalty provided for the crime be increased by one third. As in this case we are dealing with a major fraud (estafa de mayor cuantía) whose penalty is from six months to ten years, the abstract penalty imposable with the proven aggravating factor is from eight months to thirteen years and four months. Both the Public Prosecutor and the private prosecutor requested a sentence of eight years in prison, which, as can be seen, is neither the minimum nor the maximum penalty. This Trial Court unanimously considers that the cited sanction must be upheld as it is adequate to the culpability, that is, to the level of reproach that must be made to the accused A., considering the elements indicated in Article 71 of the Criminal Code. Regarding the subjective aspects of the punishable act, it must be considered that the accused acted with direct intent (dolo directo) and not only managed to consummate the crime by obtaining the delivery of the three million dollars on May 31, 2002, but also kept the injured entity in error for much longer, as he gave them supposed investment account statements that never existed as such. When he was required to deliver the funds, he alleged problems with other international banks for the transfers, controls over clients due to the amount, and invitations to invest, and this resulted in the fact that, at least until January 2004, the victim did not fully understand the extent of what had happened. Regarding the objective aspects and the circumstances of mode, time, and place, it must be borne in mind that R., representative of m. and of Night Glow S.A., knew C. because references had been given about him in Finadesa, where R. was a director (an institution that was a shareholder of Financorp Puesto de Bolsa, in turn part of the Elca International Corporation S.A., presided over by A.); he knew the wide prestige that Mr. C. held in the Costa Rican banking and financial environment, the solid curriculum he possessed as President of the Chamber of Commerce, director of the Banking Association, President of the Chamber of Private Banks and Financial Entities, founder of the Elca Corporation, etc., so he approaches him at the physical facilities of Banco Elca in order to arrange investments for his principal; meetings are held with the very President of the Corporation and of Banco Elca; he calls senior executives (managers) to participate in it, and as a result of that situation, investment in the offshore bank of Belize, non-existent at that date, is induced. Therefore, the induction into error was carried out under conditions that, for any victim, were highly credible, without any element emerging to cast doubt on the lawfulness of the business proposed by A. That induction into error and that injection of liquidity occurred at a moment when the accused A. was carrying out a plurality of business activities (founder and President of Hospital Cima San José, of Cormar, former President of Chambers, etc.), when many of his accounts had negative balances or were overdrawn, forcing him to resort to third parties lending him their accounts and names to make payments (as stated by H.), and when Banco Elca S.A. had already presented levels of irregularity decreed by SUGEF (in this regard, C. and O., among others), all of which allows one to glimpse what the determining motives for the commission of the act were. That is, the intent of the accused not only to obtain resources at all costs and thus conceal other irregularities already present in his personal finances and those of the bank he directed, thereby artificially maintaining the prestige he possessed in the national arena. The importance of the harm to the protected legal interest must also be considered, that is, the patrimony of the injured entity, which was diminished by at least three million U.S. dollars, that is, approximately one thousand four hundred seventy-six million colones at the current exchange rate (four hundred ninety-two colones per dollar), without considering the interest that the sum could have generated according to the agreement. Undoubtedly, for the consummation of the crime, it is particularly important in this case to consider the conditions of the active subject and the victim, because if Mr. C. had not had the curriculum, the prestige, and the position of President of Banco Elca exercised in the way he did, and if the victim had not known about them beforehand, the crime would evidently not have been consummated. That relationship generated the necessary trust so that the passive subject did not take extreme controls that he would have used in other circumstances. On the other hand, A. took advantage of the circumstance that he knew the invested money came from the activity of the sports book to misappropriate it under the false belief that the origin of the funds or the eventual lack of a tax declaration for them made them illicit and that this would prevent the active subject from claiming them through legal channels. He even says so to the victim, saying he unlinked the funds from Banco Elca ‘to protect him’, to which G. indicates that his legal situation is in order in the United States, that no one gave him instructions to proceed that way, and that he can freely report who the final recipient of that sum is without any legal problem, something that A. probably did not count on. Finally, no less important is the conduct of the agent subsequent to the crime, as A., in one of the last meetings with the representatives of the directly injured party, to the question of whether he was going to pay them, merely said, looking his interlocutor in the eye, no (just as R. stated it). And although at some point there were proposals for the delivery of assets, these were – according to the victim’s representatives: G. and R. – derisory, as they involved encumbered properties, of a value far, far lower than that lost, etc. All these reasons lead the Trial Court to maintain that the sentence deserved by the accused in this case can never be a minimum or low sentence, but rather he must be sanctioned with a sufficiently high sentence so that it is proportional to the damage suffered and to his high level of reproach given the narrated circumstances. Nor is it appropriate to impose the higher extreme of the sentence (thirteen years and some months), considering that he is a first-time offender, as recorded in the certification of judgments at folio 16635 of main volume XXVII, in addition to the fact that – as is often the case in white-collar crimes – he is a person adapted to basic social norms (he has had university studies, has performed successfully in his career, helps the community, has no addiction problems, has family roots, etc.). In such cases, the resocializing principle (the foundation of the prison sentence in our system, as provided for in Articles 51 of the Criminal Code and 5.6 of the American Convention on Human Rights), and understood, for this case, as the process of becoming aware of the consequences of his acts and the need to adapt to all norms of human coexistence, including commercial practices, would be achieved with amounts lower than the upper extremes. Therefore, imposing eight years of prison, as requested by the accusers, that is, a mid-range sentence (pena media) (five years and some months less than the maximum penalty and seven years and some months more than the minimum), is considered appropriate to what has been narrated and is hereby decreed.” (folios 17279-17282). This proves that the petitioner's complaint is not justified. Next, nothing prevented discarding, based on the testimony of Ms. N., that the properties offered by A. did not meet the value of the damage nor were they reliable, as there is no element whatsoever (nor does the appellant present one) to discredit that statement, which proved solid and informed. Regarding the fact that conciliations were reached with the other two involved parties for 2 and 2.5% of the sum claimed from them, it is not clear whether the defense counsel is again attempting to sow doubts about the reliability of their testimonies, a matter already elucidated in these pages, or whether he regrets that his client was not given the same treatment, which is entirely understandable, given that he was the author of the deception, who decided the destination of the funds, who acted as president of Banco Elca and, furthermore, was the majority owner of the same. Therefore, his level of intervention and culpability in the acts was much greater, and, as a product of the conciliation, the injured parties provided themselves with additional evidence to establish the responsibility of the former, which is perfectly in accordance with the law. Moreover, it is not true that Mr. G. received payment of the interest on the sum diverted by A. Some interest was paid to him, in an attempt to keep the deception afloat, but not all. Indeed, since the contracts began to be breached, that gentleman received no further money for that concept and continues not to. That he could recover “many millions of dollars” (in reality two) from the other operations does not mean he did not lose the three million that were the subject of the fraud (estafa) at issue here. The matter of how R. narrated the response A. gave him is something procedurally inconsequential; even if it had a rhetorical effect (which is lawful), unless it is shown to be implausible and that it led to unreasonable conclusions, which does not happen in this matter, it is of no interest. Regarding whether the eight-year sentence imposed on the accused for these acts is half the legal range or not, this is an argument that stems from the assumption that the lower court’s exposition tends to place it at that 50%, when the truth is that it speaks of a “mid-range sentence (pena media)”, but clarifying in the act that no reference is made to the seventy-six months alluded to by the defense counsel, but rather to eight years of prison, regarding which the punitive assessment of the Judges was developed. This is fully visible from folio 17279 (and can be read in the transcription made above), where the lower court states that it is not appropriate to impose either the possible maximum or minimum, in which sense it later speaks of a “mid-range sentence (pena media)”. From there, and taking into account all the pertinent circumstances of the act and the personal conditions of the defendant (including his public background), it is repeatedly stated that eight years of prison is prudent. Lastly, if the accused’s health is not the best, this is an aspect that can be addressed by the defense attorney in the sentence execution phase, in order to ensure the best possible well-being for his client. Likewise, although the situation of the accused's children is lamentable, like the children of any person deprived of liberty, the truth is that this is an element whose importance pales and is relatively minor when compared to the gravity of the acts he incurred. Consequently, both are topics of no major relevance in the setting of the sentence that the defense counsel objects to.

VII.- Next, the appellant objects that the Trial Court held it as proven that Mr. A. came into possession of the H. family’s investment certificates, ordering their early redemption without any prior study, to cancel a loan he had irregularly granted to the anonymous corporation Kiona San Francisco. So, the petitioner argues, while on the one hand he is considered not the owner of the titles, but rather a bank official who authorized their redemption, it follows that he acquired the titles and redeemed them to proceed with the known payment. The defense counsel asserts that everything is resolved by observing that there is a letter from the owners of the titles requesting their early redemption to cancel the credit operations of the aforementioned corporation. Therefore, the one who ordered the redemption was F., not the accused. On the other hand, Mr. H. himself said that he had reviewed the financial statements of that corporation, whose credit he was going to assume in exchange for the investment certificates, and they seemed good to him. The shareholder of the corporation, Ms. E., also testified in this direction. Thus, there were no reasons to affirm that A. had come into possession of those titles and ordered their redemption.

Thus, a series of legal precepts was violated, which must lead to the judgment being quashed in this regard. The appellant goes on to say that Article 245 of the Penal Code sanctions anyone who, using privileged information, acquires or disposes of securities for their own benefit or that of a third party, which did not happen in this matter, in which A. neither acquired nor disposed of. Therefore, the very same reasons that led the Court to consider some facts as atypical lead it to convict for others, which is contradictory. Finally, he retorts that, according to the internal regulations of Banco Elca, there was no maximum amount for early redemption and that paying a debt does not threaten a bank's liquidity, because what it reduces is the liability. <u>The objection is not receivable</u>. To put things in their proper dimension, it is worth recalling that the Use of Privileged Information is provided for in Article 245 of the Penal Code, which literally states: <i>“Anyone who, knowing privileged information relating to negotiable securities on the stock exchange, their issuers, or relating to securities markets, acquires or disposes of, by themselves or through a third party, securities of said issuers in order to obtain an undue benefit for themselves or for a third party, shall be punished with a prison sentence of three to eight years. For the purposes of this article, privileged information is considered to be that which by its nature can influence the prices of the issued securities and which has not yet been made public knowledge”</i> (as this article was added by numeral 185, subsection b), of the Ley Reguladora del Mercado de Valores No. 7732 of December 17, 1997.). Consequently, as the defense counsel points out, it is vital for resolving the claim to determine whether A., thanks to the possession of privileged information about negotiable securities on the stock exchange, their issuers, or markets, disposed of or acquired securities of said issuers in order to obtain an undue benefit for himself or for a third party. Again, to have at hand what was established in the ruling in this regard, it is worth transcribing the part leading to the fact under discussion. From folios 17328 to 17337, the lower court stated: <i>“It was alleged and proven that during the course of June two thousand four, Messrs. F, M, F., and M., all members of the H family, as investors of Banco Elca, requested the defendant C for the early redemption of four certificates of investment (certificados de inversión), namely Nos. 200027349, 200028337, 200027929, and 200026056, whose global amount totaled approximately six hundred fifty-two thousand seven hundred twenty-six dollars and fifty-six cents ($652,726.56) and which matured, the first two, on September thirteenth, two thousand four, the third on April seventh, two thousand five, and the last on October seventh, two thousand four, with the defendant denying such possibility under the pretext that it would be detrimental to the cash flow which, as we already indicated, he did not argue regarding the requests from his father and wife but which, in any case, demonstrates—once again—the knowledge he had of the irregular situation of the bank and the consequences of those redemptions. Instead</i> <i>A. offered to exchange said certificates of investment (certificados de inversión) for a “loan” that, in its favor, Banco Elca S.A. had with Sociedad Inversiones Kiona San Francisco S.A. for four hundred fifty thousand dollars and which had as a pledge guarantee thirty-five percent (35%) of the shares of Financorp Puesto de Bolsa and thirty-five percent (35%) of the shares of Financorp SAFI, owned by A., this loan having been approved unilaterally and irregularly by A. as will be addressed later (section X). On June twenty-eighth, two thousand four, the brothers F. and M. appeared at Banco Elca S.A. and delivered to C. the respective certificates of investment (certificados de inversión) duly endorsed and signed some notes, which the aforementioned defendant presented to them, requesting Banco Elca S.A. for the early redemption of the instruments that until then belonged to them</i><i>. </i><i>Immediately afterwards, the accused ordered the early redemption of those instruments and their corresponding interest and proceeded to cancel the loan that Inversiones Kiona San Francisco S.A. had with Banco Elca S.A. As Messrs. H. also had debts with said entity, the accused, with the rest of the money and at their request, decided to cancel loan operations No. 000300012946, No. 000300012679, and No. 000300012429. The day after that operation, Banco Elca S.A. was intervened and, a short time later, the companies Financorp Puesto de Bolsa S.A. and Financorp Sociedad de Fondos de Inversión S.A. were also intervened. As has been stated, there is no restriction from SUGEF for banking entities to make early cancellations of certificates of investment (certificados de inversión), when requested by the client. Likewise, it is the responsibility of each Bank or financial entity to regulate everything concerning that point, as Banco Elca S.A. effectively did when it approved the "Manual de Políticas de Emisión de Certificados de Inversión" on April 15, 2002. As part of the requirements for those redemptions, it was established that the investor had to request in writing the early cancellation of their respective instrument and that these would be authorized and approved by the Presidency, Deputy General Management, or General Management, with no limitation on the amount. They could also be approved by the Financial and Operations Management, the Customer Service Head Office, or Treasury, the Service Platform Supervision, but these indeed, with limits on amounts. From the foregoing and always according to the aforementioned "manual", it is inferred that when the early redemption of the certificates of investment (certificados de inversión) in favor of the H. Brothers was requested in the month of June two thousand four, the defendant C, as Executive President and owner of Banco Elca S.A., did have the possibility of redeeming the certificates of investment (certificados de inversión) of the H family early, only that on this occasion he did not want to do it under the pretext that it was a very high sum of money and that it was impossible for the bank. How did the early redemption of the certificates of investment (certificados de inversión) (approved by the defendant on May 28, 2004) of his father, which reached a total sum of ninety-nine million, six hundred twenty-five thousand, one hundred ninety-six colones and fifty-six cents (99,625,196.56), not represent a problem for the bank? One aspect we must not overlook is that, as was said when analyzing the early redemption of the certificates of investment (certificados de inversión) of his family members (VII.1), the defendant at the cited time had full knowledge of the degree of irregularity in which the Bank he directed found itself. We highlight here the official letters SUGEF-623-2004 of February 17, 2004 (folio 50 volume I), SUGEF 1082/200402588 of March 17, 2004 (folio 19 volume I), and SUGEF 1881-2004 of May 13, 2004 (folio 93 volume I), sent to J, then Acting General Manager of that entity, to the Board of Directors of Banco Elca S.A., and to A., General Manager of the bank as of May 13, 2004, it being impossible to think that, because they were addressed to other people, they were unknown to the owner and Executive President of that banking entity, whose experience in the financial area allowed him to foresee "in a very near future" the negative consequences of the irregularities found by the respective authorities of the Superintendency. As already stated, the testimonies of M, J, J, E, M,, W, M, M, R, P, W, among other witnesses, have been very clear in describing the atmosphere of tension and uncertainty experienced by the Bank's employees prior to the intervention, how meetings were held in which the defendant A. participated, with the sole intention of "calming them down," how before the intervention was decreed there were already officials from SUGEF in the Bank's facilities who were dedicated to investigating and detecting anomalies. Recall, for example, what M indicated: "...the atmosphere in the bank in the first quarter of 2004 was very tense, there were many changes, at the labor level there was uncertainty, it was said that the Bank needed to increase its equity, there was talk of problems... there was talk that capital was coming from Venezuela, of a possible purchase by a larger bank, we didn't know if we would stay or be fired, meetings were held and we were informed, Mr. C. participated actively, he informed us, he showed himself enthusiastic about that business..." and J. "in October 2003 SUGEF evaluates the portfolio, SUGEF went too far and forced us to create an excessive provision of 477 million colones additional to what we already had, which was 570 million. The minimum required provision was 1,100 million colones. We followed the proper channels and there was no way to change that. That situation obligated the Bank, if the provision was created, to come out with negative results and to fulfill the rescue plan and come out with normal risk the loan portfolio had to increase enormously. Mr. H. was not there. The situation was presented to Mr. C.." All this to reaffirm, once again, that it is not true—as has been insisted—that the defendant C. was unaware of the bad situation that Banco Elca was going through, nor that he was unaware that SUGEF was conducting studies in order to detect the reason or reasons that, precisely, led, some time later, to its intervention being ordered. It is worth clarifying that the issue here is not whether the defendant C. could or could not approve and sign the early redemption request that the H. brothers had requested (which was already said above that he could) but, precisely, the "use of information" that he used to benefit himself unduly since, although it is true he did not initially approve the request made on behalf of the investors themselves, he did agree to make a swap (cambio), consisting of the H. brothers giving him the four certificates of investment (certificados de inversión) they had in the bank for an approximate amount of six hundred fifty-two thousand seven hundred twenty-six dollars, with fifty-six cents ($652,726.56) and he, in return, giving them a loan that Banco Elca S.A. had granted on May 31, 2004, to Sociedad Inversiones Kiona S.A. for an amount of four hundred fifty thousand dollars ($450,000), whose guarantee consisted of 35% of the shares of Financorp Puesto de Bolsa S.A. and 35% of the shares of Financorp Sociedad administradora de Fondos de Inversión, such that, once the proposal was accepted, the defendant intelligently proceeds, now indeed, to early cancel those four certificates of investment (certificados de inversión) and with the money resulting from that redemption, not only cancels three loan operations that the H. family and its companies had with Banco Elca but also hurries to cancel the loan that, irregularly, he himself had granted to Inversiones Kiona S.A. (this point will be addressed later). It is precisely this maneuver that is questioned, because the objective he pursued by "acquiring" the certificates of investment (certificados de inversión) of the H. family through that means is more than clear. Now then, let us move on to the examination of the evidence related to the H. brothers and that, definitively, serves to corroborate what was stated above. Mr. F tells us that he and his family were clients of Banco Elca both personally and in the name of their companies Industria Textil, Industria Ella S.A., Dulce Cuidado S.A., and Importaciones Herrero. They held, in said entity, the certificates of investment (certificados de inversión) No. 200027349, No. 200028337, No. 200027929, and No. 200026056, which matured on December 13th, September 13th, 2004, April 7th, 2005, and October 7th, 2004, respectively. Likewise, their companies had acquired loans No. 000300012946, No. 000300012679, and No. 000300012429 from the same Banco Elca. He notes that for the first half of two thousand four, the investments they held were approximately three hundred sixty thousand dollars ($360,000) and one hundred ten million colones (110,000,000 colones). Pointing out that when rumors were heard that the bank was in trouble (which, therefore, if they were of public knowledge, its President C. knew even more so), he decided to look for C. to redeem the certificates they had, even if they lost a percentage of the value, but he told them it was not possible because the sum was too high, telling him to rest assured because there were two or three purchase offers for the bank, one from a Mexican group and another from an American bank. The witness goes on to say, "I insist and what he told me was that we should exchange the investments for healthy loans in other companies, he offers me a loan from Inversiones Kiona for four hundred fifty thousand dollars and it had as a guarantee 66% of the shares of Financorp Puesto de Bolsa and Financorp, he gave me balance sheets from the previous month, I studied them, the balance sheets reflected very pleasant information." Reasons why, in the end, he decides to accept the proposal from C. on the understanding that the owner of Sociedad Inversiones Kiona S.A., Mrs. E, would give him a first installment of one hundred twenty thousand dollars ($120,000), that the loan operations of his companies would be canceled, and, with the remaining surplus, the exchange of his investments for the loan of Inversiones Kiona S.A. would take place. All this happens on June 28, 2004. However, the next day the intervention of Banco Elca S.A. is ordered and subsequently the intervention is extended to other entities related to Corporación Elca S.A. such as Financorp Puesto de Bolsa and Financorp Puesto de Fondos de Inversión, thereby harming the interests of the H. family. The witness E. is of interest, who worked for Financorp from 1996 until August 2004, not only because she has a direct relationship with Mr. C.'s negotiations around the redemptions of the certificates of investment (certificados de inversión) of the H. family but also because she clarifies points regarding the company Inversiones Kiona S.A. that are also important regarding the topic of back-to-back operations (which will be revisited in section X). She states that at some point C. suggested she buy 5% of Financorp Puesto de Bolsa, for which Bancrecen granted her a loan through a company she bought called "Inversiones Kiona S.A.", a loan she is still paying. By 2004, the defendant told her that the Venezuelans—in point X of the sentence, this fact is highlighted as part of the "rescue plan" for Banco Elca—were no longer interested in buying the Brokerage House (Puesto de bolsa) or the Investment Funds (Fondos de inversión) and offered to sell 50% of the shares of Financorp, telling her that the Bank could lend her about four hundred fifty thousand dollars ($450,000) and that one of his companies, called Santa Damiana, would lend her the rest. The purchase was made in the name of Inversiones Kiona and the shares of Financorp Puesto de Bolsa and Puesto de Inversiones were given as collateral; in total the obligation amounted to approximately nine hundred thousand dollars. The debtor was, then, Inversiones Kiona, which did not have a checking account and one had to be opened at Banco Elca, and the two loans were disbursed there. Regarding the certificates of investment (certificados de inversión) of the H. family, it is important to literally highlight the following: "at some point Mr. C. told me he was meeting with the Superintendent of Banks and that he was objecting to the loan given to Inversiones Kiona, I asked him why if it was backed by shares and he told me they insisted that Inversiones Kiona cancel that loan because otherwise they would classify it poorly and provision the money, it gave me terrible anguish but I told him I couldn't pay overnight and he told me there was a client of the bank in various things who was willing to buy the loan from the bank, who wanted to see the financial statements of Financorp. I went to the bank, I met with that person F, I brought him financial statements of both companies, he told me he was going to think about it, he was accompanied by his advisor, I don't know if financial or legal, and very close to that Mr. C. told me that his client had agreed to sign the loan, I was still a debtor, to whom I owed was indifferent. I signed the loan with that person, the shares were released from the trust of Banco Elca and went to the new creditor of Kiona." See here clearly why, by June 28, 2004, it was already urgent for C. to obtain money to cancel the loan irregularly granted to Mrs. E. (that is, to prevent a reclassification of the loan that implied an increase in provisions), and the easiest way to obtain it was by <b>acquiring</b> the certificates of investment (certificados de inversión) of the Herrero family because, otherwise, he had no money to do it. Regarding the loan granted on May 31, 2004, to the company Inversiones Kiona San Francisco S.A.—full legal name—whose legal representative and unlimited general power of attorney holder is E., the following observation must be made. As some witnesses have pointed out, especially former employees of Banco Elca, the approval of a loan had to first go through a credit committee that met every week and was composed of C, J, H., the head of credit, and the head of business management. Thus, J. tells us that the cases were prepared by the business executives and were first passed through a pre-committee one day before the weekly meeting; on that day everything processed by the executives was brought, and the loan cover sheet with the operative part was circulated, and the signatures of those present were affixed so that the loan would be approved, then the formalization process would follow. He points out that on some occasions a loan application could be circulated among the different approval levels without the credit committee being in session, but that this did not mean non-compliance with procedures; in fact, at the committee's next session, the respective approval minutes had to be included. He notes that by 2004 there were loans that did not go through the credit committee and were signed only by Mr. C. or Mr. H. and sometimes by both. Regarding the loan to Inversiones Kiona, he indicates that among the irregular operations he encountered was the formalization of a loan that the defendant C. processed directly in the name of a company owned by E., which was canceled fifteen or twenty-two days earlier so it would not appear in the complications with SUGEF, and that did not go to the credit committee. In the same vein, witness M. tells us about the existence of a credit committee that studies the different loan applications and then must make a collegial decision; he mentions—as an important point—the hierarchy of signatures, which could be classified as A or B; in his personal case, his was a B signature and he did not have the authority to approve a loan by himself; the defendant C, Mr. J., and Mr. H., according to his account, were class A signatures. So a loan could be approved with one A signature and one B signature, with two A signatures, or three A signatures according to the regulations, but in fact, one A signature was enough "especially if it came from Mr. C. or Mr. H, it is very likely that it would be done, in a Bank if the person of highest hierarchy orders it, one cannot oppose without being fired." Witness H. also refers, in his extensive statement, to the credit committee and the signatures required for the approval of a loan, stating: "The loans were submitted to the Credit Committee after prior analysis by the respective area, the committee met on Tuesdays, it was composed of officials of a certain level of the bank including Z, F, the head of collection, credit, account executives, E, A, and me, the credit documents were signed approving or rejecting. Normally there were type A and type B signatures and I believe even type C because sometimes the committee did not meet in full and two A signatures and one B or three B signatures and one A were required, right now I don't remember what the combination was, but there was a composition to approve the loans. All members of the committee had participation to sign, mine was type A. It is not necessary for everyone to be together to approve a loan, sometimes they were approved as a circulated committee, going one by one to those who were present. Normally it was the account executive who circulated it or the head of credit for corporate loans. Once the signatures were collected, the file returned to the business or personal credit department, and then the formalization was coordinated." Again, witness M. refers to the credit committee, indicating that it met every week and a study was carried out, it was discussed whether to approve or not. As for the members, he mentions C. and J; in said committee a cover sheet was made with all the details of the operation, but there were loans that, despite not meeting the requirements, were approved by simple order of the Presidency or the Management because they said they "were important clients and that they would later collect the documents." These were loans that did not meet the minimum requirements, that sometimes had no guarantee. He indicates that the loan category is assigned by the financial analyst, but in those loans the category already came assigned on the cover sheet. Like the previous witnesses, he alludes to the circulated committee in relation to loans that were urgent or due to the type of client that were processed with a lack of signatures, which would later be collected. We also have the statement of E, a former executive of the Bank who indicated "I did have knowledge of loans that were not approved as I mentioned, it could be due to urgency because the committee met once a week, it seems to me it was called the 'circulated committee', a loan cover sheet was requested that circulated among middle management of the bank. With just one signature I don't think one could speak of a circulated committee, I believe there was a regulation on the number of signatures a document had to carry." He points out that there had to be a combination of signatures, for example that of the credit manager, plus the head of credit, and Mr. C. For his part, Mr. Oscar Rodríguez, in his capacity as Superintendent of financial activities, regarding the issue of the loan granted to Inversiones Kiona San Francisco S.A., stated that this operation denoted high risk because, according to the payment capacity analysis, this company was left with an indebtedness of 80% and could only pay interest and not the principal (for it must be remembered that the loan given to E. for her to make the acquisition was "while" she could locate investors to make the acquisition of those companies, as she said).

The superintendent added that the credit approval policy is specific to each entity, that SUGEF cannot impose it, but that it does require that clear policies exist; that according to the bank's internal regulations, a combination of signatures was required for approval; and that, in the case of Banco Elca, this requirement was sometimes not met. The statements cited here clarify for us what the policy to be followed for the approval of a loan was, policies which, in the case of Inversiones Kiona San Francisco S.A., were not followed, given that said transaction under No. 300012945 was approved solely by the defendant. It must be remembered that it was C. himself who told Mrs. E. that the Bank could lend her four hundred fifty thousand dollars ($450,000) and that one of his companies—Santa Damiana—would lend her the rest so that she could thus purchase 70% of the shares of Financorp, a transaction that he cancels on June 29, when she had already acquired the investment certificates from the H. family. What has been narrated so far allows us to outline two independent facts: on the one hand, the irregular approval of the loan in favor of Inversiones Kiona S.A. carried out by the defendant, a fact that—as will be indicated—is one more of those comprising the crime of fraudulent administration (administración fraudulenta) with which he is being charged; and, on the other, the early redemption of the Herrero siblings' investment certificates, without any study of the impact that this had on the diminished finances of Banco Elca S.A. at that date, with the aim, using the money thus acquired and knowing the information of limited circulation regarding the gravity of the finances of the entity he directed, of being able to cancel that loan granted a few days earlier. The legal consequences of this, as well as of the other redemptions, will be analyzed immediately below.” It is thus clear that the maneuver developed by A. was preceded by an anomalous action on his part, which was the granting of a loan to Mrs. E., to whom he had offered to sell 50% of the shares of Finacorp. When she told him she did not have money, he offered to give her a loan of 450,000 dollars from Banco Elca and the rest from one of his companies, called Santa Damiana. The loan, contrary to the bank's internal regulations, was granted individually by the accused to Inversiones Kiona de San Francisco, which remained as the debtor and gave the shares of Financorp as collateral. After this, the accused needed to cancel the irregular loan he had granted to this latter company, for which he made use of the H. family's certificates. With that objective, when the holders of those certificates showed up to request their redemption, A. told them that it was not possible, because it would affect cash flow (contrary to what the appellant now argues). As an alternative, and fully aware of the precarious situation of the banking entity due to the sources listed in the judgment, he offered them, in exchange for the certificates, a loan that the Bank had for four hundred fifty thousand dollars with the company Inversiones Kiona San Francisco S.A., and which had as a pledge guarantee thirty-five percent (35%) of the shares of Financorp Puesto de Bolsa and thirty-five percent (35%) of the shares of Financorp SAFI, a deal to which they agreed. It was when the H. siblings came to the bank to deliver the endorsed investment certificates that A. presented them with the notes requesting redemption, despite having previously told them it was not possible. Then, the accused himself ordered the redemption using said notes and canceled the aforementioned irregular loan with the proceeds. The following day, both the bank and the Financorp companies were intervened. In summary, what we have here is that A. used privileged information he had about the situation of the stock market securities of Elca and Financorp, as well as their issuers. Now it remains to be resolved whether, in pursuit of an unjust benefit, the accused proceeded to acquire or dispose of securities from said issuers. The answer is affirmative. To cover up his anomalous actions, he had to cancel them before they came to light, especially when the intervention of Banco Elca was imminent. For this, as the Trial Court stated, “…the easiest way to obtain it was by acquiring the investment certificates of the Herrero family, since otherwise, he did not have the money to do so.” In other words, he acquired the investment certificates of the H. Siblings, the very same ones he had previously refused to redeem, as that act was detrimental to cash flow; but which now, once he had obtained them, he proceeded to exchange and cancel the loan that he himself had granted to Mrs. A.'s company so that she would buy shares of his (A.'s) other companies from him. In synthesis, there was indeed a use of privileged information under the terms of the aforementioned legislation. The ground is without merit.

**VIII.-** In the following ground, it is criticized that when the use of privileged information is attributed, it is required that this be specific data, and not an assumption. In the case of the H. gentlemen, the information was not privileged, since they requested the redemption of the certificates when they heard a rumor about the poor situation of Banco Elca, meaning it was of a public nature. The defense counsel states that nowhere in the entire judgment is it stated what information is deemed privileged. In that sense, he transcribes some paragraphs of the decision, from which he affirms it cannot be inferred that one was dealing with privileged information. What happened was that the H. gentlemen, faced with comments about the failure of Banco Elca's negotiations with a Venezuelan group for its purchase, preferred to exchange their certificates, given that the alternative offered by the defendant of acquiring a loan from a company that did not show financial problems was a fully legal business. The ground is inadmissible. To begin with, it is not true that the company Kiona de San Francisco had the solvent situation now suggested. A. knew that, in order to buy the shares of Financorp, it had to obtain a loan for the entirety of its value, leaving it with an indebtedness of 80%, and being able to pay only interest and not the principal. Moreover, the fact that rumors or public comments were heard about the situation of Banco Elca does not at all mean that its internal situation was in the public domain, as the defense counsel posits. Outside the bank, there might have been a feeling or comment that things were not going well. But from there to managing the internal situation, with its amounts, points of weakness or eventual strengths, possible or closed exits, liquidation alternatives and, above all (as it is pertinent to the case), irregularities to cover up and the imminence of an intervention that loomed in view of the repeated warnings from SUGEF, these were all aspects known to very few people and, mainly, to A. Hence, having carried out the transactions already explained in the preceding recital (considerando), making use of his knowledge of such vicissitudes, was effectively a use of privileged information.

**IX.-** In the ninth ground, the defense counsel indicates that in proven fact 42, the Trial Court found the losses for the bank to be proven as a result of the loan granted in favor of the company Inversiones Tres Mil Sociedad Anónima, owned by J. Then, using various legal entities, the lower court (a quo) held, A. managed to extract the nine hundred thousand dollars from that loan. The defense counsel says that asserting that the bank was “looted” for that amount is in contradiction with the proven facts numbered 47 through 56, in which it is recorded that such funds were consolidated in the operating account of Bosques de Ayarco sociedad anónima, and returned to the bank. “What occurred, as can be seen, if the rules of logic and administration are applied, is not a looting but an accounting operation, with the purpose of reducing the delinquency of the Bank's portfolio…”, argues the complainant. Upon realizing that a loan is losing its guarantees, it is preferable to give it a little more time, so that it does not become a loss. The new operations, consequently, by having new terms, allowed the Bank's portfolio not to deteriorate as much; but they did not constitute a loss, which only came from the loan granted to Inversiones Tres Mil. To think otherwise is to accept G.'s version that F. lent his companies to A. so that he could obtain money. On the other hand, regarding the irregular loans managed in the name of Mr. B., the loss arose from the first loan that was given to him normally (after which there was no disbursement), not in the two extensions authorized by the accused and in that, in the end, the loan appeared in the name of Santa Damiana sociedad anónima, an entity belonging to the defendant. There was, in synthesis, no appropriation of money whatsoever by A. The objection is not admissible. Again, given the profusion of movements and the overall complexity of the situation, it is appropriate to transcribe what the judgment established in this regard. From folio 17346 a to 17358, the Judges indicated: “It was charged that on April twenty-second, 2003s (sic) J. submitted to Banco Elca S.A. a loan application on behalf of his company Inversiones Tres Mil S.A. for the sum of eight hundred twenty-five thousand dollars ($825,000.00). As a guarantee, four investment certificates were offered that the investor, Michael Andrew Carabetta, held in Banco Elca S.A. in the name of Inversiones Savinelli S.A., which represented the total sum of one million dollars ($1,000,000.00) and matured on July 21, 2003. Upon the maturity of the certificates, these were renewed for certificates No. 000200025319 and No. 000200025320 each worth four hundred twenty thousand colones that would mature on July twenty-first, two thousand four; however, before their maturity, they were redeemed early, presumably by A., leaving the obligation contracted by Inversiones Tres Mil without guarantee. The loan was approved under transaction No. 300011698; on April twenty-ninth, 2003, an initial disbursement of eight hundred thousand dollars was issued payable to F. as representative of the company Inversiones Tres Mil S.A. These facts were the subject of a conciliation in case TP 06-0027-515 of the Criminal Court of this circuit, so they will not be heard or judged in this sentence but serve as context to determine what occurred afterward. In order to cancel the loan approved in favor of Inversiones Tres Mil S.A., it was charged and proven that C., between the twenty-fifth and twenty-sixth of February, two thousand four, unilaterally approved—in his capacity as the highest-ranking official of Banco ELCA S.A.—five direct loans in favor of the companies Punta Palmira PP S.A., Bauza Casa Grande S.A., Por Larrañaga S.A., La Gloria Cubana S.A., and Mobiliaria Activa Dos Mil Ocho S.A., entities in which C. appeared as their founding partner, president, and unlimited general proxy (apoderado generalísimo) without limit of sum, and to which he granted loans totaling the sum of nine hundred five thousand dollars ($905,000.00); once the respective cashier's checks were drawn in the name of each of the companies, they were credited to an account called "cashier's checks", subsequently they are reversed by A. to proceed to issue another five cashier's checks for the same amount but in favor of the Company Bosques de Ayarco, an account it held at Transamerica Bank & Trust Ltd. (an offshore bank of Banco Interfin S.A. in the Bahamas); these new checks are deposited into an account called "sundry creditors". On February twenty-seventh, 2004, the company in question issued check No. 3260 for eight hundred eleven thousand eight hundred thirty-five dollars and sixty-seven cents ($811,835.67) in favor of the company Inversiones Tres Mil, which is credited to the account of the company Grupo Prisma Asem S.A. (owned by J.) at Banco Elca. That same day, at Banco Elca S.A., Debit Note No. 77732 was issued from the checking account of Grupo Prisma Asem S.A., to be applied to the cancellation of Credit Transaction No. 300011698 in the name of Inversiones Tres Mil S.A. The five loans that C. granted on the twenty-fifth and twenty-sixth of February of 2004 to the aforementioned companies were reclassified by SUGEF as "uncollectible or of a very low recovery value" to the detriment of Banco Elca S.A.

**VIII.1 Evidentiary analysis in relation to C:** It must be indicated that the evidence we will now proceed to examine in this section, especially the testimonial evidence, also relates to the other topics that have been analyzed and will be analyzed in other recitals (considerandos), hence it may seem repetitive, when in reality it is not. On the contrary, it is evidence that, coming from former employees of Banco Elca, covers distinct topics of the accusation that have been proven. From the foregoing, the court manages to determine five fundamental circumstances: (i) the legal representative and unlimited general proxy (apoderado generalísimo) without limit of sum of the Company Inversiones Tres Mil S.A. is Mr. J. On April 28, 2003, transaction No. 300011698 was approved in favor of this legal entity for the sum of eight hundred twenty-five thousand dollars ($825,000.00), with the loan guarantee being several investment certificates that Mr. Michael Carabetta had in the name of Inversiones Savinelli S.A. for the total sum of one million dollars; (ii) the accused C., as Executive President and owner of Banco Elca, between February 25 and 26, 2004, unilaterally approved five loans for a total amount of nine hundred five thousand dollars ($905,000.00) in favor of five companies controlled by him (see volume XI, folios 4731 and following, 4749 and following, 4764); (iii) the funds from those loans came from the funds of Banco Elca, finally being deposited into an account in the name of Bosques de Ayarco S.A. that the accused A. had at Transamerica Bank & Trust Ltd. in the Bahamas; (iv) with these funds A. canceled the loan granted to the company Inversiones Tres Mil S.A., owned by J.; (v) all the loans of the five companies were declared by SUGEF as “uncollectible”. The foregoing has been proven thanks to the statements of the witnesses we are about to examine. However, beforehand it is important to remember that a “credit committee” operated within Banco Elca which, prior to any approval of a loan, studied the applications and verified that the required requirements were met, all of which was summarized in what the witnesses have called “credit file covers (carátulas de crédito)". Thus we recover, for example, what was declared by H. when he says: “The loans were submitted to the Credit Committee prior to analysis by the respective area; the committee met on Tuesdays; it was composed of officials of a certain level of the bank with Z, F, the head of collections, of credit, account executives, E, A, and I; the credit documents were signed, approving or rejecting. Normally there were type A and type B signatures and I think even type C because the committee sometimes did not meet in full, and two A signatures and one B were required, or three B and one A; right now I don't remember what the mix was, but there was a composition to approve the loans. All the members of the committee had participation to sign; mine was type A. It is not necessary for everyone to be together to approve a loan; sometimes they were approved as a circulated committee, going one by one to those who were present. Normally it was the account executive who circulated it or the credit head in business loans. Once the signatures were collected, the file returned to the business or personal credit department and then the formalization was coordinated.” In the same sense, J, when he points out that the credit committee had to make the decisions on the loan applications that were submitted; that the cases were prepared by the business executives who, one day before the Committee meeting, took them to a “pre-committee”. Regarding the file or credit file cover (carátula de crédito) he tells us: “A credit file, materially, has the client's history, the application, the investigation that must be done, the bank reference data, from SUGEF, the submission of financial statements, cash flows, projections, feasibility studies, the analysis that a bank office performs on the file, endorsed by a financial analyst who gives the recommendation. It contains the guarantee part, and a summary is made on the cover. A simplified copy was in the disbursement area." This witness was shown evidence bundle No. 33 referring to the formalization of the Punta Palmira S.A. loan and said that he could not describe it as a credit file because it did not meet the characteristics; there was no financial information, it did not indicate whose the fiduciary guarantee is, it does not indicate who gives the guarantee, there is a cover approved by Mr. H. and Mr. C., but the other covers do not bear anyone's signature; in the same sense, with evidence bundle No. 31 belonging to formalization B, which is a "template" used as the credit file cover to take to the credit committee. Another testimony on that point is that of M., when he states that the credit committee studied the cases and then made a collegiate decision, with a hierarchy of signatures classified as A, B, or C existing. Likewise, Mr. M. points out that in the credit committee, minutes were made of the approved loans; then a credit file cover was made that contained all the details of the transaction. An important aspect is what refers to the so-called “circulated signature committee” which a large part of the witnesses have mentioned; thus, for example, Mr. J. told us that “a loan application could be circulated to the different approval levels without the credit committee being convened, according to needs. That means it did not go to the heart of the committee to be approved, but it did not allow for the failure to comply with any of the procedures that SUGEF establishes for loan approval, and in the following session they were included in the approval minutes.” Mr. H., in that regard, indicated that all the members of the credit committee who participated had to sign, but that it was not necessary for everyone to be together to approve a loan; that sometimes they were approved as a “circulated committee”, meaning that the account executive would circulate the document, and once all the signatures were collected, the file returned to the business or personal credit department, and then the formalization was coordinated. M. and E. also refer in their testimonies to the circulated committee; the first stating that there were urgent loans processed lacking signatures, which were subsequently collected, while Mr. E. tells us that it was the responsibility of the credit executive, as the client's representative before the bank, to circulate the respective credit file. All of this is pertinent to highlight that a loan could not be approved just like that; rather, it necessarily had to be known by a credit committee, that is, by each one of the members that comprised it and who, according to the witnesses, were C. himself, J., the heads of collections and credit, the account executives, E., and H.; and that, likewise, said documents required being signed by all of them at the same moment of their approval or subsequently through the “circulated committee” procedure, which did not exempt that, in the next session of the Committee, those loans granted circulationally would be incorporated into the minutes, which did not happen with any of those discussed here according to those witnesses. Of importance is the existence of different classes of signatures of the committee members, which were required for the approval of a loan and which were conditioned according to the amount to be approved; thus, for example, class A signature was that of the Executive President, that is, that of Mr. C., that of Mr. H., and that of J.; class B signature was that of J., the business manager, the credit head, and the head of financial analysis, determining that a mix of signatures was necessarily required for the approval of a loan, or several type A but never a single one, according to the manuals, although—as has been indicated above—A. had managed a practice contrary to them, approving loans with his signature alone. The foregoing can be corroborated with the testimonies already cited. We now turn to what concerns the approval of loans in favor of companies owned by or related to the accused C., all duly registered before the National Registry, Mercantile Section, according to the certifications of their legal status (personería) contained in the record. Thus, on February 25, 2004, C. approved a direct loan in favor of Punta Palmira PP S.A. for two hundred five thousand dollars ($205,000.00) which—after deducting the corresponding item for commissions—generated the Cashier's Check of Banco Elca S.A., No. 15045, for two hundred three thousand four hundred fifty-two dollars and fifty cents ($203,452.50); on February 25, 2004, he approved a direct loan in favor of Bauza Casa Grande S.A. for one hundred fifty thousand dollars ($150,000.00)—which after deducting the corresponding item for commissions—generated the Cashier's Check of Banco Elca S.A., No. 15046, for one hundred forty-eight thousand eight hundred sixty-five dollars ($148,865.00); on February 25, he approved a direct loan in favor of Por Larrañaga S.A.

seventy-five thousand dollars ($175,000.00) which—after deducting the corresponding item for commissions—gave rise to the Manager's Check of Banco Elca S.A. No. 15047 for one hundred seventy-three thousand six hundred seventy-seven dollars and fifty cents ($173,677.50); on February 26, 2004, it approved a direct loan in favor of La Gloria Cubana S.A. for one hundred ninety thousand dollars ($190,000.00), which—after deducting the corresponding item for commissions—gave rise to the Manager's Check of Banco Elca S.A. No. 15049 for one hundred eighty-eight thousand five hundred forty-nine dollars and seventeen cents ($188,549.17); on February 26, 2004, it approved a direct loan in favor of Mobiliaria Activa Dos Mil Ocho for one hundred eighty-five thousand dollars ($185,000.00), which—after deducting the corresponding item for commissions—gave rise to the Manager's Check of Banco Elca S.A. No. 15048-4 for one hundred eighty-three thousand five hundred eighty-seven dollars and eight cents ($183,587.08); it must be said that all the loans were unilaterally approved by the accused C, without observing the established procedures, as has already been explained. In this regard, J. stated that by 2004 there were loans that had not followed the procedure, since operations occurred that did not go through the credit committee and were signed by the accused C. or Mr. H. He says he did not realize when they were approved, but later he found out that those operations had some degree of connection to C., this through some minutes of A. where various companies with loans at Banco Elca were discussed and that they were companies of the accused A. He was shown evidentiary file No. 32 and he makes the observation that, for example, in that operation it is not specified whose the fiduciary guarantee is; the loan in favor of the Company Por Larrañaga S.A., visible in evidentiary file No. 30, is in the same situation. Witness M. indicates that loan operations were carried out that did not pass through the credit committee and had no analysis; they only came approved by Mr. C, Mr. H., or Mr. J. Witness M. states “not all loans complied with these steps; there were loans that were approved by order of the presidency or management; they said they were important clients and that they would collect the documents later.” In his testimony, he points out how some loans sometimes even lacked a guarantee and that some were direct loans in the name of C.’s companies, operations that were not known to the credit committee or the Board of Directors, nor did SUGEF know of them, as was required for operations related to the bank's officers or shareholders according to H. and E. stated. The loans to Punta Palmira and to La Gloria Cubana S.A. were processed by management and approved by C.; they were not known to the credit committee; the first operation was not paid off. In the same vein, he mentions the company Por Larrañaga and Bauza Casa Grande where the guarantee was also not provided and they were also not paid off. As an interesting detail, he tells us that upon perceiving the disorder, he brought it to the attention of accused A., especially concerned about whether SUGEF would arrive, but the latter told him not to worry because he would provide his own guarantees. The statement by Mr. O. stands out when, as a result of the respective studies carried out by SUGEF inspectors, they found a series of irregular loans, in these terms he indicates: “A series of loans were granted whose risk profile was high; approval processes did not fit the bank's own policies; several people participating in approval lacked a study of payment capacity; several loans were configured through C.’s management; the process did not fit; they were granted to companies related to him or through his management, without analysis of payment capacity…” He points out that the loan approval policy is specific to each entity; SUGEF cannot impose it but can require that clear policies exist; in the case of Banco Elca, three signatures were required to approve a loan, and in some cases that was not fulfilled; there was no payment plan or payment restructuring (adecuaciones de pago) without any support. For his part, C. indicates that, according to the reports received, it is determined that some loans related to A. were delinquent, that they had been extended without technical studies, there was no financial information on the debtor, they had been approved by only one person, contrary to policies, etc. It can be inferred from the foregoing that practically the majority of Banco Elca’s employees, according to the functions they performed, were able to confirm the irregularity in the approval of loans in favor of C.’s aforementioned companies, but precisely because of their hierarchical relationship, there was little they could do when they detected an irregularity of that nature; irregularities that were indeed determined by the SUGEF officials who participated in the respective analysis and which is also reflected in report SUGEF 2520-2004 which, in what concerns us, states: “As a result of the study carried out on the loan portfolio with a cut-off date of May 31 of this year, it was determined that the Bank has granted loans to companies linked to Mr. C. for an amount of 871,449.8 thousand, equivalent to $2.0 million. Through the review of the credit files of these debtors, it was observed that Mr. A. participated in the approval of at least five loans granted to this group of companies and, in the cases of Inversiones Kiona San Francisco S.A and Punta Palmira S.A, only the approval of Mr. C. is recorded, which goes against sound banking practices and what is established in the credit policies of that Bank, which establish that for the agreements of the Credit Committee to be firm, three A signatures must be present, or two A signatures and two B signatures.” As a relevant fact, it is indicated in that same report that the amount loaned to that group of companies exceeds the limit of 20% of capital and reserves; likewise, some of those loans showed significant delays and were subject to extensions or restructurings without the technical justifications for this being recorded in the respective files. A.'s defense has argued that in those cases, the accused was merely attempting to initiate a circulated committee and that if this did not occur, it was due to a breach of duty by subordinate officials. However, that assertion is not acceptable. Note that it was not an attempt to initiate a circulated committee, but rather that A. signed and sent or gave the documentation to the operational officials and not to an executive to collect the rest of the signatures. Moreover, M. and S. recount that if there was opposition to those proceedings, the loan would appear the next day, approved in the system. Furthermore, A. never pointed out, in the next session of the Credit Committee, that loans initiated as circulated (according to his defense statement) were missing from the minutes, which he could have done if that had been the real situation—which it was not according to the foregoing—and given the control he had over the bank's affairs. Having established the manipulation of the loans by C. in favor of his companies, it is necessary to examine the maneuver carried out by him to divert attention from them. It transpires that once C. approves the respective loans and issues the checks for the amounts of money corresponding to each company, he subsequently reverses them and issues five other checks for the same amount but in favor of Transamérica Bank & Trust Ltd. in an account of the company Bosques de Ayarco that A.—in the name of a company he controlled—held at that Bank. On February 27, 2004, this company issued a check for eight hundred eleven thousand eight hundred thirty-five dollars and sixty-seven cents ($811,835.67) in favor of the company Inversiones Tres Mil S.A., money that is credited to an account of the company Grupo Prisma Asem S.A. owned by J.; in this way, Banco Elca issues a debit note for that company and it is applied to the cancellation of the loan that the accused C. had granted in favor of Inversiones Tres Mil. In this way, the accused C. manages to cancel the loan that had been granted to Inversiones Tres S.A. (see Volume V, folios 1945, 1949, and 1952 and reports 451-DEF-454-04 and its addendum 24 DEF-509-04/05). **VIII.2 Evidentiary analysis in relation to J.:** In relation to the accused J., the question we must ask ourselves is whether he indeed had any participation in the approval of the loan in favor of Inversiones Tres Mil, an entity of which he was the legal representative. The testimonial evidence cited many times places Mr. J. within the hierarchy of Banco Elca, who together with C. and H., had the authority to approve loans, of course, upon prior observance of the established procedures, which does not necessarily imply that on this occasion he gave his approval to the Inversiones Tres Mil S.A. loan. The accusatory pleading establishes that on April 22, 2003, J. requested a loan from Banco Elca S.A. for an amount of eight hundred twenty-five thousand dollars ($825,000.00) in the name of the company Inversiones Tres Mil S.A. The accused F., in his sworn statement, refers especially to that topic, and when reviewing evidentiary file No. 36, he makes the observation that it contains a series of anomalies, again requesting that a forensic handwriting analysis (prueba grafoscópica) be performed on the “loan application” document attached to the evidentiary file. In that regard, during the trial, experts J.P. and M.O. were available, who, upon examining folio 26 of evidentiary file No. 36, reached the conclusion that the signature preceding the loan application dated April 22, 2003, was not made by J. The foregoing implies, therefore, that it is not true, as has been stated in the prosecutorial accusation, that the accused J. requested a loan of money in favor of his company Inversiones Tres Mil S.A. As for the loan approval, we have Report No. 451-DEF-454-04, which states: “The loan for Inversiones Tres Mil S.A was approved solely by H. as General Manager and E. as a board member, such that the procedure for the number of signatures established at Banco Elca S.A. regarding the number and quality of signatures was not followed.” On this particular point, it must be noted that both Mr. G. and Mr. E., when they gave their statements, were emphatic in stating that they never approved that loan and the signatures preceding the respective document are not theirs. From what has been stated, and irrespective of whether Mr. H. or Mr. [E./G.] signed the approval of the loan in favor of Inversiones Tres Mil S.A., it is concluded that the accused J. not only did not sign the loan application but also did not participate in its approval. A question arises, on the other hand, as to why, then, the money from the loans approved by C. in favor of the companies Punta Palmira, Por Larrañaga, Bauza Casa Grande, Mobiliaria Activa 2008, and La Gloria Cubana, was finally credited to Banco Elca account No. 122006481 belonging to the company Grupo Prisma Asem S.A., whose legal representative is J. The answer to that question is provided by H., who says that “J. was so foolish as to lend the name of his companies to help C., and checks were issued to him to cover some overdraft or some problem.” Another aspect highlighted by the witness when shown evidentiary file No. 91, folios 148 and 149, is that those documents signed by him are issued in the name of J., and it is one of the cases where J. lent his companies because Mr. C. needed money. He literally stated: “Mr. J. was not paid with checks from Bosques de Ayarco; if it was issued from that account, it is because Mr. C. needed the cash for something.” These assertions answer the question of why, even though J. was not in the country on February 27, 2004 (see immigration movements and passport of said accused), the money was still transferred in favor of Inversiones Tres Mil S.A. An aspect we must not overlook, and which is related to the foregoing, is the goal pursued by C. when he orders the deposit in favor of Inversiones Tres Mil S.A. of the sum of eight hundred eleven thousand eight hundred thirty-five dollars and sixty-seven cents ($811,835.67) into the account of Grupo Prisma Asem S.A. It should be recalled that the loan granted to the company Inversiones Tres Mil S.A. was initially guaranteed with four investment certificates from the Company Inversiones Savinelli (in a conciliation process), and that at a certain moment, the accused C. redeemed them early, thus leaving the Inversiones Tres Mil loan without a guarantee. From that point on, is when, in an “intelligent” or skillful manner, C. seeks to obtain the money to cancel that loan, and what better way than through the granting of loans, whose funds came from the coffers of Banco Elca, to five companies he owned (see Volume XI, folios 4731 and following, 4749 and following, 4764), a point already explained above. For greater understanding, it is worth recalling what was stated by M., supervisor of SUGEF who participated in the intervention process of Banco Elca: “Inversiones 3000 arises from reclassifications of several debtors (Punta Palmira, Bauza Casa Grande, and others). Those operations were constituted under the cover of five checks issued in favor of those companies, but the treasurer who worked for Elca, who was J., said that those checks had been substituted by other checks, and the investigation revealed that, and that they were for the same moment. They went out to an account through Banco Interfin to Transamérica Bank, which was Interfin's offshore bank; they partially return to the bank, return to an account of Grupo Prisma represented by J., and cancel the Inversiones 3000 operation, which was J.'s. In two of the five cases, the checks were signed by C. In report 2520, the five debtors are included, and I did not participate in that study, but I do recall having seen in that report that the five were reclassified to category E.” That is to say, there is evidence that determines that F. lent his accounts, that the signature appearing above his name on the loan application was not made by him, and those who sign approving the loan deny that their signatures are [theirs] as well. At the time of the disbursement of the money, F. was not in the country, so there are indications of credibility for his exculpatory statement, as will be addressed immediately.” In sum, if it were a matter, as the appellant says, of a simple banking operation aimed at prolonging the life of a loan at risk of becoming uncollectible, the situation certainly would not have the seriousness attributed to it. What happens is that, contrary to what the defense counsel stated, the succession of loans did not occur to try to mitigate the consequences of a bad decision, but rather of a misappropriation. Indeed, as the lower court (a quo) explains at length, the later solitary conduct of A., who authorized said covering loans, apart from the circumstances in which the original loan to Inversiones Tres Mil was processed, made it clear that from the beginning the accused set out, using this company of F. and E., to take possession of eight hundred thousand dollars that he knew would not be collected, since the guarantees would be redeemed early by A. and the account would be settled using other loans to five of his companies that he himself authorized and which, as was to be expected, had no payment capacity whatsoever. That is to say, that loan which the defense counsel says was regularly granted, later turned out to have been neither requested by F. and E. (who was not in the country at that time but lent his companies to the accused for his maneuvers), nor approved by the other officials who were supposed to do so (folio 17356). At the end of all the scheming, A. had unilaterally approved loans for nine hundred five thousand dollars, which had indeed left the Bank's accounts. It is for these reasons that said actions, together with those relating to Mr. L., were deemed to constitute the crime of fraudulent administration, by virtue of which eight years of imprisonment were imposed on the accused. Regarding this, not only do the same irregularities appear in the granting of the loans fictitiously granted to Mr. B., who had not requested them, but those fraudulently granted funds left the Bank. In this regard, the judgment records: “In relation to L.’s loan, it was charged and proven that on November 30, 2001, the Credit Committee of Banco Elca S.A. approved the granting of credit operation No. 30009271 for one hundred one thousand eight hundred fifteen US dollars and thirty-one cents ($101,815.31) in his favor to cancel three previous operations that the same debtor had with Banco Elca S.A. and which were delinquent, cancellations that were, in effect, made. That operation was guaranteed with a second-degree mortgage guarantee (garantía hipotecaria) on B.’s home, which also supported a first-degree mortgage in favor of Banco Interfin. This was executed through a mortgage enforcement proceeding (proceso ejecutivo hipotecario) on June 19, two thousand two, with Banco Elca S.A. being awarded it. However, credit operation No. 30009271 was not honored by Mr. B., with a credit of five hundred seventy-two dollars and seventy cents ($572.70) being recorded on December 11, 2001, corresponding to the remaining balance of the same operation after canceling the delinquent operations that said gentleman maintained at the bank, and an amortization of five thousand three hundred fifty-one dollars and sixty-five cents ($5,351.65) on May 31, two thousand two (which was used only to cancel interest on operation 30009271). The amortization money originated from a fictitious loan that appears in the electronic system of Banco Elca S.A. under operation No. 300010099 granted to Broitman Feinzeilber who, as he stated in the hearing—his account being credible—never requested said financing. Similarly, on July 31, two thousand two, in the credit records of Banco Elca S.A., the granting of credit operation No. 300010416 for one hundred fifty-six thousand dollars “in favor” of L. was recorded, with the purpose of financing the payment of the property acquired by Banco Elca through the auction indicated on June 19. Said loan was fictitiously constituted since it was not requested by said debtor. On October 30, two thousand two, the three operations indicated, for a total amount of two hundred seventy-four thousand four hundred thirty-four dollars and seventy-four cents ($274,434.74), without any justification, were settled in the accounting against a “suspense account” No. 184-02-2-00-04 and, from that point on, a series of irregular accounting movements of this balance begins. On November 21, 2002, another fictitious credit operation was constituted, No. 300011029 “in favor” of B. for $274,572.89, which was approved by C. and J. (facts for which no judgment is rendered herein). In turn, this operation, i.e., No. 300011029, is canceled on December 23, 2002, by credit operation 300011260 granted in Banco Elca S.A. in favor of the Company Inversiones Santa Damiana S.A., without it being possible to determine who approved such a loan. The company Santa Damiana has the accused C. as its president, representative, and unlimited general attorney-in-fact (apoderado generalísimo sin límite de suma). Operation 300011260 was granted for one year, maturing on December 23, 2003, but it was unjustifiably extended by C. for three more months from its maturity, and on March 31, 2004, he extends it again for three more months under the same irregular conditions. As of that date, said operation is past due and there is no possibility of proceeding with its executive collection because as a “guarantee,” there only exists a photocopy of a “bill of exchange” for two hundred eighty-seven thousand nine hundred seventy-eight dollars and twenty-four cents ($287,978.24), supposedly subscribed and endorsed by “the representative” (at that date) of said company, V., secretary of the Castro Garnier Law Firm, and presumably guaranteed by Mr. A., same parties who reject the legitimacy of such a document. The only amortization recorded in the payment history of this loan corresponds to the credit made on July 28, two thousand three, for an amount of one hundred fifty-nine thousand nine hundred ninety-two US dollars applied to principal ($141,657.37) and interest ($18,334.63) of said debt, leaving an outstanding balance to pay of one hundred forty-six thousand three hundred twenty dollars and eighty-seven cents ($146,320.87), which as of January 5, two thousand five, amounted to the sum of one hundred sixty-two thousand eight hundred seventeen dollars and twenty-six cents ($162,817.26), corresponding to the principal balance, plus interest and past-due balance, which the accused A. has not canceled to date, to the detriment of Banco Elca S.A. **IX.1.- Evidentiary analysis:** During the days the adversarial proceeding lasted, sufficient testimonial and documentary evidence was received that ultimately corroborates the hypothesis of the Public Prosecutor's Office. Again, the observation is made that many of the witnesses we will now examine have already been cited in other recitals (considerandos) when referring to specific topics. From the foregoing, it is possible to determine: (i) on November 30, 2001, the Credit Committee of Banco Elca (see evidentiary file 34) approved for L. operation No. 30009271 for $101,815.31. He used that loan to cancel three credit operations he had with Banco Elca. Operation No. 30009271 was not canceled by Mr. Broitman; only two payments were made, one of them for interest amortization for $5,351.65; (ii) by July 31, 2002, credit operations No. 300010099 and No. 300010416 had been fictitiously constituted in the name of Mr. B.; (iii) on October 31, 2002, the real operation and the two fictitious ones were settled in the accounting. With the balance of those operations, operation No. 300011029 was fictitiously constituted, which Mr. L. had also not requested; (iv) credit operation No. 300011029 is canceled on December 23, 2002, by means of operation No. 300011260 granted by Banco Elca in favor of the company Santa Damiana S.A., whose representative and unlimited general attorney-in-fact is C. That operation was extended twice by the same accused and, to date, has not been canceled…. The testimonial evidence cited summarizes the maneuver carried out by the accused A. when he proceeds to approve credit operations No. 300010099, No. 300010416, and No. 300011029, which Mr. L. had fictitiously requested, which B. himself corroborates by stating that from 2002 on, he never again made loan applications to Banco Elca.

It is also highlighted how A. grants a credit No. 300011260 to the company Santa Damiana, which he owns, with the sole purpose of canceling the fictitious operations. Not content with that, the accused A., without any justification and bypassing all procedure, proceeded to extend the credit of the mentioned company twice. All of this led SUGEF to reclassify that credit to risk category E, causing great harm to Banco Elca (see volume V, folio 1705)." (folios 17365-17372). So, as was verified in the ruling, from the moment Banco Elca awarded itself B.'s house, a matter that settled B.'s debt with the Bank or turned it into a marginal one, A. "granted" him an amortization credit for 5,351.65 dollars and another for 156,000 dollars to finance the property acquired by the Bank, which he never requested. Later, for an amount of 274,434.74 dollars, another credit was granted that canceled the real operation and two fictitious ones that came out of the Bank. This, in turn, was liquidated in accounting terms by another fictitious operation that concealed that fraud, consisting of another credit that was falsely claimed to have been requested by B., this time for 274,572.89 dollars. Then, this was canceled by a credit operation for 287,978.24 dollars granted by A. to the anonymous company Santa Damiana, belonging to the accused, which provided a bill of exchange (whose original was not found), signed by two people who rejected its legitimacy. That last operation was unjustifiably extended by the accused on two occasions for three months each time, ratifying his participation in the criminal scheme. In the end, after applying the payments registered in the account, 162,817.26 dollars of the principal balance remained uncovered. In such a way that, as is evident, it is not true that the only outflow of funds occurred when the loan was granted to Mr. Broitman Feinzilber, but rather that after this, disbursements occurred in an escalating series of misappropriations that, on one hand, tried to hide the previous irregularities, and, on the other, deepened the defrauding of the banking entity's assets. The ground is unfounded.

X.- In the tenth ground, it is argued that it is impossible to execute a fraudulent administration (administración fraudulenta) against oneself, since the owner of Banco Elca was the accused A., who exercised ownership over that entity through a series of companies that were also his. To ratify this, the defense proceeds to transcribe some excerpts from the judgment where this was held as true. For this reason, it is indicated, the aggrieved parties of a fraudulent administration are the shareholders of the company, which in this case do not exist, but rather it is the defendant himself. Regarding those irregular deposits, in which a transfer of property occurs in favor of a bank, Costa Rican legislation is parca. It must be taken into account, it adds, that in the case at hand, the Court considered the situation of the savers and investors who had deposited their funds in such an entity. This money, however, is incorporated into the bank's assets. Next, the complainant makes a disquisition on the character of regular and irregular deposits, which are characterized by the duty for the depositary, not to conserve the same thing (as in the case of the regular one), but an equal amount of the same quality and kind. This creates a "dual availability (doble disponibilidad)," in which on the one hand, the depositary becomes the owner of the good and the depositor can withdraw it in turn. A consequence of this is that the loss of the goods is suffered by the depositary, who acts as their owner. Therefore, since A. was the owner of the bank in question, the goods received in deposit were his property and he could not administer them fraudulently to his own detriment. The reproach is not admissible. The appellant's reasoning stems from a fallacy or a poor understanding of the figure he comments on; namely, that by becoming the owner of the deposits, the administrator who is the depositary or who owns the receiving entity can dispose of them at will, without any responsibility. To begin with, it must be clear that when it is said that in irregular deposits the depositary is obliged to deliver a similar quantity and of the same quality of the goods received, this does not mean that he becomes their owner, but rather that he continues to be a depositary. What happens is that, due to the type of goods that are habitually received in such dealings, these cannot be preserved in their individuality, but are mixed materially, NOT juridically (since they continue to belong to the depositor), with the rest of the available patrimonial assets, whether this is destined for investment, for loan, or for simple hoarding. But, as is obvious, the same happens in every "regular deposit (depósito regular)" in which the goods are fungible, since the fact that the depositary later returns other bills that are not the same ones previously delivered by the depositor, does not mean that in that act he had become the owner of them. Therefore, the fact that he can dispose as an owner of the goods that were delivered to him, in no way does it remove, much less, that he continues to be their depositary and the depositor their titleholder. That is to say, the goods continue to be someone else's property. In the case under discussion, the matter is palpable. If the sophism displayed in the ground were correct, it would imply that the goods or values received by A. through the Bank became his property, as the challenger maintains. That is, that they were his, which is very mistaken, because it is notorious that this was not the intention of the depositors, who delivered them with the hope and the Bank's commitment to return them duly with a profit. That was not only known by the depositors, but was a matter of common sense; especially for the accused, who systematically acted to circumvent those commitments. In a preceding resolution, to which both the judgment under cassation appeal and the appellant allude, this court stated: "Article 222 of the Criminal Code, which punishes fraudulent administration, establishes a special proper offense (delito especial propio), since it delimits the possible circle of authors to that person who 'for any reason, having in their charge the management, the administration, or the care of another's property, harms its titleholder by altering in their accounts the prices or conditions of contracts, supposing operations or expenses or exaggerating those that were made, hiding or retaining values or employing them abusively or improperly.' It is a special proper offense because it cannot be committed—as an author—by any individual, but only by one who manages, administers, or takes care of another's property and performs some of the typified behaviors. The basis of this particular punishment is because the active subject assumes tasks or functions over a patrimony that is partially or totally someone else's and, therefore, a series of legal duties weigh upon them that they infringe with their action. The legislator also takes into account the existence of a link that entails the trust placed in the agent by the passive subject, who expects loyalty and correctness in the management of their goods, rights, and patrimonial expectations. In summary, the defenders N. and R. allege that the accused did not exercise functions of administration of the savers' and investors' patrimony, but rather committed themselves before them as debtors of an obligation; and that the funds, once deposited in Banco Germano Centroamericano, became the exclusive patrimony of the latter and could be destined for various uses. On this topic, it is prudent to make some reflections. Banking activity, both in Costa Rica and in other nations, is strictly regulated in order to ensure the healthy economic development of the country and, among other reasons that are not of interest to delve into here, because it is carried out in essence from third-party capital and not from that which corresponds to the owners or shareholders of the bank: 'The referred activity is carried out with third-party or predominantly third-party capital. The origin of this comes basically from the public (depositors or savers) with whom financial intermediation is managed. Thus, funds are captured by paying an interest rate to lend them at a higher one and profit from the differences between both. Its determining characteristic results from the third-party nature of the lendable funds that are the object of financial intermediation. That intermediation does not use or risk its 'own' capital (as happens in other activities) but rather one of collective origin, definitively finite, quantifiable, unique in the country, and not substitutable.' (PORCELLI, Luis A., 'Private Financial Entities. Functionality and History of their Regulation,' in Crisis. Liquidation and Bankruptcy of Banks. Responsibility, Ediciones Jurídicas Cuyo, Buenos Aires, 2001, p. 347-348). These distinctions must not be lost sight of, as otherwise it is easy to incur in error when appreciating the nature of the functions that banking entities fulfill. They always work with third-party capital or patrimony and that character of being another's property does not disappear at any moment nor can it be confused with the capital contributed by the partners or shareholders of the company (which, of course, can also be the object of fraudulent administration). In the specific case, both Germano International Bank and Banco Germano Centroamericano captured resources from the public, through different means: deposits in savings or current accounts; trust commissions, FOPEX and FODEIN funds, and monies that had to be paid to the Central Bank for the purchase of foreign currency or to the client's creditors abroad. The contracts of savings deposits and current accounts have been classified by doctrine within the concept of 'irregular deposit' because, contrary to what occurs in the regular one, the depositary is allowed to make use of the goods. It is ruled out, then, that they constitute a loan (mutuo) or lease of money contract (see DÍAZ RAMÍREZ, Enrique, Contratos bancarios, Temis, Bogotá, 1993, p. 92), which would indeed signify a displacement of the patrimony. That the sums deposited in current or savings accounts maintain their character of being another's property in our environment (that is: they belong to the one who deposited them), is evident from the provisions contained in articles 529, 612, 617, 630, and 631 of the Commercial Code and Chapter V, Title III of the Organic Law of the National Banking System, No. 1644 of September 26, 1953, and its reforms; because although the bank is allowed some discretionary use of the funds—however: with diverse restrictions—, the depositor continues to be the owner of the monies, they can be seized or frozen by judicial order, and they constitute an active part of their patrimony and not an 'account receivable.' Hence, Article 3 of the cited Law No. 1644 defines the function of banks in this matter as that of 'custodying and administering the banking deposits of the community'; a definition that, in reality, even if it were not in the law, would be extracted from the other norms cited before, and ultimately only serves to describe a phenomenon." (see voto 231, of 8:45 hours of April 9, 2003). So that, apart from the effect on public trust, on finances in the national market, and on other human repercussions, there was indeed an infraction of a legal duty towards the depositors, who, even admitting the thesis of "dual availability (doble disponibilidad)," were unable to dispose of their goods or values; even if their profile were reduced to a mere credit right, which would have likewise been thwarted. For certain, also in this last case, in which that right of restitution would be diminished to a credit right, it cannot be overlooked that the realization of the same is subject to the good administration of the goods or values delivered, so that even within such a thesis, the administrator cannot behave with respect to them as if he were "their owner," because that would undermine the effectiveness of the credit; but, more importantly, it is that the understanding of the parties is that the goods continue to be part of the depositor's patrimony. Hence, the aforementioned jurisprudence already issued by this Court in this respect, which the litigant tries to maintain does not apply in this matter, must be reiterated and considered applicable.

XI.- Next, as a substantive claim, it is pointed out that the ruling erroneously applied the aggravating circumstance of fraud (estafa) to the crime of fraudulent administration (administración fraudulenta). Furthermore, it says, "... the personal circumstances of Mr. A were not taken into account integrally, for example, his age, the fact that he has three young children who require the presence of their father, his professional capacity and his importance as an active member of society, his successful trajectory prior to the 2002-2004 period...", as well as three operations attributed to him (those of Inversiones Tres Mil, the one related to B., and Kiona San Francisco) did not cause an expenditure for the Bank, as well as the other aspects of Article 71 of the Criminal Code. The objection is not admissible. When setting the scope or margins of the sanction, Article 222 of the Criminal Code refers, without exceptions, to Article 216 of the same code. That is, the penalty for fraud (Article 216) is applied, without any modification or discrimination whatsoever, to fraudulent administration. This includes, unquestionably, also the aggravating circumstances contained in the final paragraph of the cited Article 216, regarding which the legislator made no distinction whatsoever, so it is not appropriate to make one in the judicial sphere. Consequently, there is no irregularity, but rather it is entirely correct that, if the aggravating hypotheses set forth therein concurred, these were also applied in the case of the fraudulent administration incurred by the accused A.. On the other hand, when setting the penalty corresponding to these illicit acts, the lower court stated: "For the purposes of the penalty to be imposed, we must refer to considerando VIII.1, to indicate that in this case we are also in the presence of the crime of Fraudulent Administration. Although it is true that on that occasion the events occurred between February 25 and 26, 2004—approval of the credits in favor of the companies of the accused Punta Palmira, Bauza Casa Grande, Por Larrañaga, La Gloria Cubana, and Mobiliaria Dos Mil Ocho—and the events concerning considerando IX are framed between the months of May to December 2002 and January to March 2003, in reality it concerns a single crime of Fraudulent Administration of a greater amount. According to jurisprudence, we are before the same third-party patrimony, in this case entrusted to the President and owner of Banco Elca S.A., who had the administration of the resources invested in that banking entity by the diverse clients and investors, who with his actions, such as approving credit extensions granted to companies belonging to his person, caused great harm. In the case of Inversiones Santa Damiana, upon approving the extensions unjustifiably, as of January 5, 2005, and according to the studies carried out, it presented a balance of one hundred sixty-two thousand eight hundred seventeen dollars and twenty-six cents, money that ultimately has not been paid, thus harming the patrimony of Banco Elca and that of its creditors, aside from the fact that it cannot be demanded because it lacks a guarantee to back it. For all this, the global penalty imposed is eight years of prison, which takes into account the different moments in which the cited unity of action manifested (five credits in favor of A.'s companies, this operation, and the credit in favor of Inversiones Kiona), for which a lesser penalty is not justified as the harm caused is very great. The Court takes into consideration the following to set the penalty within the established extremes: the circumstance of the seriousness of the harmfulness caused by the accused, who takes advantage of his hierarchical position in Banco Elca to unilaterally and unjustifiably extend, without observing the respective procedures, the credit operation of Inversiones Santa Damiana, a company of his property, an operation that, as has already been indicated, lacks a guarantee to back it since the only thing that exists is a copy of a bill of exchange whose signatures were questioned. All aspects that, considered as a whole, lead the Court to impose the said penalty, deeming it to be the one that conforms to the proportionality that must exist between it and the affectation of the legal interest at stake and other demonstrated circumstances, in relation to the possibility of achieving the rehabilitation of the defendant so many times referred to." (folios 17379-17380). Given those circumstances, the matter of the accused's age or health (which, as said before, can be assessed in the sentence execution stage) or the needs of his children (same as those of any other father or mother deprived of liberty), are of relative importance. Finally, his role in society and his successful trajectory would rather be elements that increase his blameworthiness, both because they made it even less necessary for him to incur in these acts to secure a comfortable life for himself and his family, and because he rather used these personal antecedents to deceive his victims. Regarding the three operations in which, according to the ground, no expenditure was generated for the Bank, that is an argument that has already been discredited, showing that such an expenditure did exist. To conclude, as national jurisprudence has repeatedly stated, the diverse parameters contained in Article 71 of the Criminal Code for setting the sanction must be weighed insofar as they are pertinent to the case; for, if they are not, they lack relevance and turn that exercise into a mere rite. In the present matter, with the aforementioned exception, the appellant omits to indicate which aspects were left out of the assessment and how they would have changed the imposed penalty, causing the ground to lack procedural interest.

XII.- Regarding the financial statements in which A. delivered, according to the judgment, false information to SUGEF, the defender claims that such financial statements were not incorporated as evidence in the trial. It is said in that judgment that these are located on a compact disc in the file, but they were not presented at trial nor shown. Secondly, it adds that it is not stated which indices the accused altered, nor which data or reports were the false ones. Thirdly, it says that qualifying certain acts as "fictitious" or "fraudulent" is slanderous and was done before setting out the facts; fourth, that it was not demonstrated that the way the back-to-back credits were financed was illicit. In fifth place, the complainant says that the apparent irregularity of the accused's actions stems from not having fulfilled the conditions that SUGEF imposed on him to carry out those back-to-back operations: that the related legal operations be complied with (which was done, because it is something permitted in Costa Rica); that the principle of knowing the client be respected (which is based on norms that prevent money laundering, something that is not accused here); and, that the funds come from a source external to the Bank (which finds no support in any law). Consequently, no infraction was committed. The reproach is not capable of being heard. To begin with, the financial statements that the appellant misses were indeed available in the proceedings, without the ritual act of exhibiting the compact disc that contains them being necessary to satisfy the procedural duty of making them available to the parties or enabling them to confront them. In cases such as these, the same as with documentary evidence, it is sufficient to specify in which piece the information is found and where it is located, leaving it to the judgment of each party to go to review the document or file. If during the trial he had such a concern, he should have raised it with the lower court, so that it would give him the mentioned disc, so that he could corroborate its content. Moreover, that is still possible.

But the fact that this disk was not opened or materially exhibited does not mean that the accounting information was devised or illegally incorporated into the evidentiary record. Regarding the alleged lack of explanation by the trial court (a quo) as to which indices were altered and whose data were false, the defense counsel is mistaken. This is explicitly established in the judgment. Thus, at folios 17417-17418, it is stated: </span><i><span lang=ES-TRAD style='font-family:\"Times New Roman\";mso-ansi-language:ES-TRAD;\r\nvertical-align:baseline'>“…once those operations were carried out and recorded in the bank's accounting records, the end-of-month reports were prepared, that is, with a closing date of May thirty-first, two thousand four, which on the following day, that is, June first, two thousand four, A. had delivered to SUGEF, and this is noted in report No. 50-DEF-506-04/05 at folios 3746 to 3750 of volume IX, stating that &quot;On June 1, 2004, Banco Elca sent official communication PE-017-04, to which is attached the &quot;Complementary Adjustment Plan to the Strategic Plan,&quot; reporting on the increase in the loan portfolio through the granting of these &quot;back to back&quot; loans&quot; (cf. folio 3748 front); therefore, upon observing such documents (cf. folios 10109 to 10122 of volume XIX of the main file, in the section of evidentiary file No. 83), it is evident not only that the missive PE-017-04 is signed by A. himself in his capacity as Executive President of Banco Elca S.A. (cf. folio 10110 front) but also that in said Strategic Plan it is indeed noted: &quot;Together with this project, we are sending the projected Financial Statements, with the effect on them of: a) the constitution of additional provisions, b) the new loans granted, and c) the schedule for payment of capital contributions. These projections likewise show the viability of this proposal and its effects on the bank's financial situation, particularly the effect it will have on the solvency and asset quality indicators.&quot; (cf. folio 10119 front) and, in addition to the above, among other things, the following was attached: &quot;On magnetic media, the projected Financial Statements including the financial indicators&quot; (same folio). Which are found on a compact disc on file. That is, the accused A. consummated the end he had proposed, and which the violated norm prescribes, that is, providing to SUGEF all that financial information seeking to present a healthy financial position, when the truth was that it was entirely based on that fictitious movement of twenty-three million eight hundred thousand dollars ($23,800,000.00) in assets and liabilities, and with a supposed profit of one million dollars ($1,000,000.00) in commissions generated.”</span></i><span lang=ES-CR style='font-family:\r\n\"Times New Roman\";mso-ansi-language:ES-CR;vertical-align:baseline'> It is clear then that the judgment did state which data in the indices were falsified and in what sense they were false. On the other hand, the topic of whether certain expressions the defense counsel deems premature, as they precede the evidentiary reasoning of the judgment, has already been resolved in previous pages. And the question of whether the funds used in the back to back operations were of lawful origin or not is irrelevant to the crime under discussion, which consists of having provided false data and reports to SUGEF, with the intent of concealing the true financial situation of Banco Elca. Regarding the final point, it must be said that the conditions demanded by the Superintendencia General de Entidades Financieras (hereinafter SUGEF) as requirements to soundly execute the back to back transactions may respond to various reasons, some of which are not being discussed in these lines. However, there are several considerations to make in this regard. One is that precisely Banco Elca was having such qualities imposed on these operations, in view of its precarious and suspicious situation, which is why SUGEF was proceeding with greater diligence in matters concerning it. Furthermore, it is undeniable that through its activity, that oversight intends to guarantee the stability and reliability of the national financial market, which A. and his bank were undermining, with the final result already known. Third, A. is not being sanctioned in this regard, nor for disobedience, nor for a simple banking infraction (as the defense counsel says), but for having included false information in the reports to that control body, seriously damaging not only public trust in the national financial market but also preventing SUGEF from taking earlier immediate precautionary measures to reduce the particular and social harm that was resulting from the irresponsible management that led to the bankruptcy of the Bank.<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;text-indent:35.5pt;line-height:200%; mso-pagination:widow-orphan;tab-stops:center 266.25pt right 478.5pt'><span lang=ES-CR style='font-family:\"Times New Roman\";mso-ansi-language:ES-CR; vertical-align:baseline'><span style='mso-spacerun:yes'> </span><b>XIII.-</b>In the thirteenth ground, the defense counsel alleges that it is not possible to make an expansive interpretation of the criminal type contained in subsection b) of Article 158 of the Ley Orgánica del Sistema Bancario Nacional, which penalizes the delivery of false reports or data tending to conceal the true financial situation of a banking entity. Consequently, if what A. delivered was a “plan” and not a report, about a projected financial state and not current data, besides the fact that the vulnerability of the Bank's loan portfolio, which SUGEF already knew, could not be hidden from SUGEF, the conduct of the accused could have constituted an administrative fault, but not a crime. The appellant lacks reason. Whether it was called “plan”, “projection”, “report” or simply “document”, the memorial sent by A. to SUGEF, as seen above, contained information (which is why it is a report) on the transactions whose execution was being requested for authorization, including: “a) the constitution of additional provisions, b) the new loans granted, and c) the schedule for payment of capital contributions”, and affirming that: “these projections likewise show the viability of this proposal and its effects on the bank's financial situation, particularly the effect it will have on the solvency and asset quality indicators.&quot; So, it was not simply that they were making idle or baseless forecasts or auguries of the returns from such transactions they proposed, but rather that based on the data provided (which later proved to be false), it was estimated in that report that a strengthening of the weak conditions in which the Bank found itself was going to be obtained. These, although known to SUGEF, did not include, it goes without saying, that the data of the operations they were requesting to authorize were false, meaning that the prospects for improvement and viability that the Bank showed through that channel were also false, which resulted in the truth in that essential aspect being concealed from the authorities. That is why, unlike what the petitioner argues for the benefit of his client, the Sala does not consider that this person's conduct corresponded to a mere administrative fault, but rather it is categorically demonstrated that it was a criminal action.<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;text-indent:35.5pt;line-height:200%; mso-pagination:widow-orphan;tab-stops:center 266.25pt right 478.5pt'><span lang=ES-CR style='font-family:\"Times New Roman\";mso-ansi-language:ES-CR; vertical-align:baseline'><span style='mso-spacerun:yes'> </span><b>XIV.-</b>As the penultimate reproach, the defense counsel indicates that, despite the fact that the judge of the intermediate procedure agreed to the severance of the debate, so that the setting of the penalty would have an exclusive phase, this was not carried out, because the Tribunal considered that the defense had not offered evidence regarding such a need. He then claims that this affected the rights of his client, who could “…be severely mistreated if the issue of setting the penalty is not given due attention”. The allegation is not acceptable. To begin with, because as the petitioner himself acknowledges, when that decision was made, the defense agreed with it and did not challenge it. Secondly, because even if it had been so, the appellant does not demonstrate the procedural interest in the debate being held in the argued two phases. Commenting that this allows for paying greater attention to the assessment of culpability, or that the accused may be mistreated if due attention is not given, does not prove that this actually happened in this case. That is, he does not demonstrate the injury he believes occurred, but rather argues in the abstract and not with respect to the specific case. In this case, on the contrary, as this resolution has already established in each of the segments, a careful handling by the trial court (a quo) is observed when setting the sanction and a broad attitude of weighing the various relevant factors. The ground is dismissed.<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;text-indent:35.5pt;line-height:200%; mso-pagination:widow-orphan;tab-stops:center 266.25pt right 478.5pt'><span lang=ES-CR style='font-family:\"Times New Roman\";mso-ansi-language:ES-CR; vertical-align:baseline'><span style='mso-spacerun:yes'> </span><b>XV.- </b>The last allegation filed by the defense counsel refers to the severity of the penalty that was imposed. He documents his complaint with data from the Human Development report for the year 2005, which points out that the average life expectancy in Costa Rica (presumably for males) is 78.2 years. If A. is fifty years old and was sentenced to twenty-three years of imprisonment as a penalty, this would imply that two-thirds of the years remaining in his life (or more, given the harsh conditions of confinement) would be spent in prison. Those years would probably be the most productive of his life, the appellant says. All this to the detriment of the rehabilitative function of the penalty. With this, he maintains, elementary rights of his client were violated, which is evidenced in the treatment the trial court (a quo) conferred on him when referring to him and in emphasizing his unfavorable aspects. For this reason, he affirms, the appropriate course is to unify the penalties or reduce each of them, so that the total is not so high. The ground is not sustainable. In the first place, the issue of whether, by the manner of drafting or presenting its reasoning, the trial court (a quo) shows an indisposition towards the accused has already been previously decided. Secondly, in the present case, we are dealing with a summation of the penalties imposed for each of the four crimes committed by A.. Thus, what is appropriate is not to question the sum thereof (given that the triple of the greater penalty was not applied, but the sum, which was better for the defendant), but rather each of the penalties, as was indeed done in this appeal and was opportunely dismissed in the respective segments, as it was deemed that each of the sanctions was correctly set. In fact, in no case were penalties imposed that approached the maximum; rather, the fraud (estafa) and the fraudulent administration (administración fraudulenta) were slightly above half; for the use of privileged information (uso de información privilegiada), the minimum was imposed; and, for the supply of false banking information (suministro de información bancaria falsa), one year more than the minimum and two less than the maximum was set. Therefore, it cannot be asserted that the penalties were degrading or cruel. Now, a purported unification is not possible, because this is only viable if it concerns an ideal concurrence of offenses (concurso ideal), a matter ruled out in this case as it does not involve a single action, or a material concurrence of offenses (concurso material), in which case the triple of the greater penalty could be imposed. However, in such a case, it is more unfavorable to him than the summation carried out, since while the latter yielded a total of twenty-three years of imprisonment, the unified penalty for the concurrence under the rule of triple the greater penalty would be twenty-four. Finally, it must be emphasized that it is true that the penalty has the purpose of rehabilitation, but the necessary margin for this is established by the legislator within the minimum and maximum sanctioning limits; thus, it cannot be said that, for example, for a very serious crime, in the case of an elderly person, because they have little time left to live, the sanction should even be less than the minimum. Such margins must be respected and the sanction adapted within the parameters set forth in Article 71 of the Código Penal, which mandates looking not only at the personal circumstances of the participant, such as their age, but also at the motives they had, the possibilities of adapting their conduct according to the Law, the harm caused to the number of victims, and their subsequent conduct following the events, headings in which, as has already been extensively explained, A. is in a position of reproach.<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;text-indent:35.5pt;line-height:200%; mso-pagination:widow-orphan;tab-stops:center 266.25pt right 478.5pt'><span lang=ES-CR style='font-family:\"Times New Roman\";mso-ansi-language:ES-CR; vertical-align:baseline'><span style='mso-spacerun:yes'> </span><b>XVI.- </b>The resolution of this appeal must conclude by referring to the documentary evidence offered therein and consisting of the document visible at folio 17564, which states that the percentage of return of their values to the legalized creditors is 74%, which proves, says the defense counsel, that the defendant was not a “looter”. In reality, that document does not provide any element that changes the conclusions of the judgment that was challenged. In the first place, because this would refer only to the crime of fraudulent administration (administración fraudulenta). Not to the crime of fraud (estafa) against Night Glow sociedad anónima, whose credit did not form part of the liabilities of Banco Elca, nor to the use of privileged information (uso de información privilegiada), nor to the supply of false banking information (suministro de información bancaria falsa), which also have nothing to do with the level of recovery of the creditors. On the other hand, as strictly regards fraudulent administration (administración fraudulenta), the fact that there is 74% recovery does not eliminate the intentionally irregular dealings already amply described, which resulted in detriment to the savers, even though these may have recovered three-quarters of their values. And, finally, it cannot be lightly affirmed that this is the total margin of recovery, given that the certificate itself says it is regarding legalized credits, there being others whose legalization is still being discussed in judicial proceedings, so the final degree of recovery for the creditor mass is unknown. The appeal is dismissed.<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;text-indent:31.95pt;line-height:200%; mso-pagination:widow-orphan;tab-stops:center 266.25pt right 478.5pt'><span lang=ES-CR style='font-family:\"Times New Roman\";mso-ansi-language:ES-CR; vertical-align:baseline'><span style='mso-spacerun:yes'> </span><b>XVII.-</b>Co-defense counsel Juan Carlos Sbravatti Montoya, for his part, alleges in the first ground of his challenge brief that the Tribunal set aside the demonstration of who is the shareholder owner of the corporations (sociedades anónimas) Night Glow and Montañas Mágicas del Sur, since commercial legislation establishes the ways in which this is proven. “…the Trial Court must be certain as to who the shareholder is, for which it is not enough to rely on the refrain or routine, everyday phrase that ‘…in criminal matters, the principle of freedom of proof (principio de libertad probatoria) governs (Article 182 of the Código Procesal Penal)’”. The objection is in no way sustainable. A legal norm is not a “refrain”, nor is it a “routine phrase”, but a prescription that the legislator has instituted to be obeyed. In this matter, to be applied in the criminal process. So, if, as the trial court (a quo) asserted, the aforementioned principle allows, as has already been stated in these pages, the relevant facts or circumstances to be proven by any lawfully obtained means, the ownership of the shares of such corporations can also be proven in the same way, for which the testimonies of Messrs. G. and H, as well as of attorney R, were available, who, as previously stated, attested to who is the owner of those corporations. Therefore, there were suitable means of evidence to deem it certain that the shareholder owner of those corporations is Mr. M. <o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;text-indent:35.5pt;line-height:200%; mso-pagination:widow-orphan;tab-stops:center 266.25pt right 478.5pt'><span lang=ES-CR style='font-family:\"Times New Roman\";mso-ansi-language:ES-CR; vertical-align:baseline'><span style='mso-spacerun:yes'> </span><b>XVIII.- </b>The second objection is that, according to the petitioner, the criminal complaint (querella) does not contain a description of specific facts, since the accused has the right to know what he is being accused of, and it is a contradiction to affirm that the criminal complaint (querella) is not “emulable” in its drafting, but that it allows knowing what the attributed facts are. The objection is not acceptable. To begin with, it is not true that there is a contradiction between these last two assertions of the trial court (a quo). Something can be poorly drafted or in a way that is not the best, and yet be clear, as happens in the present case. So the contradiction the defense counsel points to does not exist. Second, apart from the foregoing, it must be taken into account that the facts in question were known to the parties, since they had also been set forth in the prosecution's accusation, which settled any doubt that might have been had. As if that were not enough, it must be remembered here that this was not a defect alleged by the defense, but rather it comes to claim it at this stage without managing to point out a specific aspect in which, as a result of the confusion he criticizes, things were unintelligible and this made the defense impossible, or why they were ambiguous or what confusion they gave rise to, as he claims happened. Finally, it has also not been demonstrated that A. was sanctioned for an act accused in an ambiguous or vague manner, but rather that he was sanctioned in accordance with those that were defined in the accusatory documents.<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;text-indent:35.5pt;line-height:200%; mso-pagination:widow-orphan;tab-stops:center 266.25pt right 478.5pt'><span lang=ES-CR style='font-family:\"Times New Roman\";mso-ansi-language:ES-CR; vertical-align:baseline'><span style='mso-spacerun:yes'> </span><b>XIX.-</b>As a third allegation, it is said that the documents issued by the Junta Liquidatoria of Banco Elca were excluded as useful evidence, regarding transactions held with Inversiones Tres Mil and Grupo Prisma Asem, both corporations (sociedades anónimas) and represented by J. Said evidence was important to demonstrate the participation of the latter in the investigated facts. However, those documents were excluded for not having been requested by the interested party and because the judicial lifting of banking secrecy in this regard had not been ordered. “…Banco Elca S.A. is a bank declared bankrupt by means of a judicial resolution, consequently subject to a bankruptcy process. The distinguished Tribunal does not analyze that, under that legal condition, Banco Elca S.A. lacks a Banking License…” He then provides some norms of the Ley Orgánica del Banco Central, none of which has a direct relationship with the point under discussion, except for 133, which establishes the duty of discretion and restricted handling of information.

The reproach is not admissible. That last cited rule, rather, reinforces what was held by the lower court (a quo); namely, the obligation of those involved in banking transactions not to reveal information relating to the interested parties. Thus, a generic duty, called "bank secrecy" (secreto bancario), does exist, so that, absent a contrary judicial order, such information does not become known to persons outside the transaction. The fact that Banco Elca was declared bankrupt does not signify an exemption from that duty or bank secrecy (secreto bancario), since what is protected is the information relating to the persons involved in those transactions, who still have the right that such information not be disclosed, even when the Bank has been declared bankrupt. There is no doubt that such information came to that bank precisely in the course of its commercial operations, just as there is no doubt that, whether with that entity in bankruptcy or not, such clients have the right to have restricted access to their information safeguarded. This being the case, the Trial Court correctly proceeded to exclude the alluded documents, since these, having not been requested by the successor in interest nor judicially ordered, infringed that duty of confidentiality and even the very rule invoked by the complainant.

**XX.-** As the fourth and fifth grounds, the defense counsel says that the documents from the Bahamas regarding the current account of the corporation Bosques de Ayarco at Transamerica Bank and Trust did not have the necessary certifications (autenticaciones) nor were they transferred following the chain of custody. He points out that this limited the defense of his client, and it is not valid to say that by having made use of said evidence, the defense had cured any defect it contained. The challenger is not correct. Certainly, the argument that, by having made use of them, the interested parties cured the defects of the evidence is not valid, since it would imply that, no matter how illegitimate it might be, evidence acquires legitimacy by being used by the opposing party. However, that is not the reasoning of the lower court (a quo). That court concerned itself rather with the repercussions of the defects in the handling and transfer of that evidence, concluding that in neither case were they of any relevance. In this regard, it stated: *"Therefore, the defense would be correct in its initial argument (but not in relation to bank secrecy (secreto bancario) since it is the regulations of the receiving State that must determine whether it exists or not, whether it is lifted or not, etc., without it being for the national judge to decide it, and those foreign rules must be proven), however, by having made use of the evidence, it validated the formal errors and granted it validity, so that this leads to the rejection of the petition. Regarding the chain of custody of the evidence, no specific grievance is argued concerning it. It is on record that the competent authority of the Bahamas sent the documentation directly to the national Public Prosecutor's Office (Fiscalía) and the evidence is easily reproducible upon a new request, so that the allegation again leads to paying worship to forms for their own sake. Notwithstanding the foregoing, it must be noted that even if the defense were given complete reason and all those documents were hypothetically suppressed, this would in no way affect the conclusions this court has reached, relating, as will be indicated hereinafter, to the criminal liability of C. for the crime of fraud (estafa) to the detriment of Night Glow S.A., since that evidentiary file No. 91 (and its respective translation on folios 14958 to 15087 of volume XXV) only allows one to infer the final destination of part of the funds received by C., without this being necessary, since it having been proven that he received them and thus obtained an unlawful financial benefit (as will be analyzed in due course), the route the money followed matters little because that mere reception, the deposit in personal accounts, the failure to credit it in favor of the offended entity in accounts of Grupo Elca (as indicated by the intervenors in the documents on folios 9814 to 9816 of volume XIX and the authorities of Belize in the documents on folios 35 to 40 of the complaint file from Cori Consulting and Financial Services S.A. by qualifying the certificates issued with a date prior to that authorized for that bank to operate and raise funds as of dubious legality) and the non-return of the funds when they were requested, determine that both the harm and the undue financial benefit existed, as requirements of the objective elements of the crime: "...the only lawful – non-unlawful – destination that could have been given to the assets was that imposed by the laws or the contracts signed between the banks and their clients; any other destination that does not derive from any of those normative sources is intrinsically and by definition, undue. Said in other words and by way of example, the final use that can be given, in accordance with the law, to saved monies is to return them to the saver (an obligation arising from the contract and the law), or to transfer them to a third party in exceptional cases or else retain them (e.g., by judicially decreed seizure or immobilization). Thus, the thesis that the whereabouts of the funds are unknown is completely useless for evidencing or suggesting any lawful destination (the very fact that their whereabouts are unknown already violates the law) and rather demonstrates, without any doubt, that an unjust financial harm was consummated as a counterpart of an undue economic benefit." Third Chamber (Sala Tercera), vote No. 231-2003 (the emphasis is from the original). Furthermore, there is the independent source which is the very statement of H. who related – before being shown that file – that the money was deposited in the account of Bosques de Ayarco, a company that belonged to C. and that was used to pay overdrafts of A. himself, a statement that is supported by the reports from the OIJ that pronounce on the matter, also before the said file was received. Ergo, even if the entirety of evidentiary file No. 91 and its respective translation were hypothetically suppressed (which need not occur, since the non-absolute formal defects have been validated and an independent source of that information exists), the conclusions regarding C.'s criminal liability for the crime of fraud (estafa) to the detriment of Night Glow S.A. remain unaffected, as will be elaborated in the respective section (whereas V)."* (folios 17047-17049). Therefore, since it was not specified what the grievance actually suffered from the handling given to that evidence was, or whether it was adulterated or devalued as a result, the issue of the failure to observe the chain of custody vanishes. In this regard, national jurisprudence has been reiterative in indicating that the mere allegation that the chain of custody was not observed is not enough for the ground to be admitted. It is necessary to demonstrate that some irregularity occurred and that it had an impact on the quality of the evidence or its content, that is, deteriorating it or adulterating it. Thus, even if there were some anomaly, it would have no procedural interest if, as in this matter, those consequences cannot be determined, being at most an administrative infraction, but without procedural interest for the resolution of the case. However, what is truly important is that, as the lower court (a quo) stated, hypothetically disregarding the cited documents, the incriminating conclusions against A. stand firm, because those pieces of evidence proved matters of little interest, such as the management of the suspect's bank accounts, whereas the relevant circumstances that they demonstrated were also proven by multiple independent sources thereof. The grounds are dismissed.

**XXI.-** In the following ground, the defense counsel proceeds to question almost all of the relevant testimonial evidence gathered in the debate, disqualifying some witnesses for some reasons and others for other reasons. In his view, in summary, all the witnesses are suspected of not telling the truth and of hiding something. To begin, he criticizes that the statements of J, J, M, H, and M were given credit, since their participation in the events that occurred and their knowledge of the banking field were demonstrated. Then, he disqualifies G, R, F., and J, because of their relationship with Mr. M. Finally, he does the same with Mr. Á. and Mrs. V, because they are people accustomed to dealing with lawyers, and therefore it is not credible that they acted innocently in these events. The arguments are not admissible. It must first be said that it is not true that the Trial Court did not set out in its evidentiary reasoning why it gives credit to each of those declarants and, in general, to the body of evidence. To list here the various aspects that the lower court (a quo) considered proven based on such evidence is redundant. But the appellant and the interested persons can verify that, in each important fact, it is stated on what evidence each proven fact is based and the explanation of why. To suggest, indiscriminately, that all the witnesses are suspicious, or that the only one who told the truth is the accused and the rest of the attesting parties (for various reasons) are conspired against him, is excessive and completely lacking in support. Thus, although it is true that two of them participated at some level of responsibility in the events (F. and E. and G, who entered into a settlement (conciliaron) for those acts), regarding the others there is no crack of doubt that casts a shadow over their testimonies. Just as the comment that having a professional relationship with someone or many years of experience in an area will cause the declarant to alter their testimony or hide something is also not admissible. Rather, as was already explained at length pages before, that evidence is internally consistent and in accordance with the context, mutually confirming each other and with the documentary pieces added to the process. If the appellant believes that any of them committed an illicit act, they can proceed to report it, providing the pertinent elements. But, while such elements do not exist, but merely presumptions of convenience, in which the urgency to discredit the overwhelming incriminating factors against his client can push toward these types of strategies, this argumentation is not admissible. Unless that can be demonstrated, and in this matter it has not even been attempted, such affirmations are hasty. The objection is dismissed.

**XXII.-** In the seventh ground of form, the complainant claims the unlawful incorporation of documentary evidence, consisting of the complaint (querella) of Cori Consulting and Financial, a corporation. This, says the co-defense counsel, refers to facts that are being tried in another venue and was not brought to the attention of the parties. On the other hand, the Trial Court did not evaluate the evidence on folios 17164 to 17185, but merely cited it. Once again the ground must be rejected for lack of procedural interest. As was already warned above, the mere enunciation of a fault or irregularity (if it exists) is not sufficient to consider that it is a defect of the sentence or that it even leads to its nullity. It is a requirement for this that it be demonstrated that the fault in question (if it exists) had an impact on the sentence and that the relevant content of the latter cannot survive with that defect. However, if, as in this matter, the claim is that evidence from a complaint (querella) in another process was taken into account (for which, incidentally, there is no impediment, based on the principle of freedom of evidence already explained), or that this was not brought to the attention of the parties, or else that the ruling only cites that evidence, without weighing it sufficiently, it is necessary to demonstrate the procedural grievance. That is, what was the specific harm alleged to have been caused. Therefore, to point out why that evidence was important, in what way things would have changed without it or if the parties had had access to it, or in what way the need for all the enumerated evidence to be explicitly evaluated was appreciable. But, the appellant limits himself to reproaching that certain evidence was incorporated, without even mentioning its content and even less its importance. Just as he also does not explain why he considers that any of the documents listed by the lower court (a quo) in the set of evidence of that type, was not weighed and its significance. In fact, he claims that all the documents were not evaluated, without explaining why it was important to do so with any one specifically or which of them was of interest to him and why. Moreover, the Chamber (la Sala) must certify that the evidence weighed by the lower court (a quo) is the important evidence, without it being possible to notice that any relevant piece remained unexamined, something that, as stated, the appellant does not even attempt to demonstrate.

**XXIII.-** In the first ground on the merits (fondo), the defense counsel claims that the existence of a ruse (ardid) could not be demonstrated in the events related to Mr. G, since it was not demonstrated that the bank in Belize did not exist, but rather a lease agreement exists to locate the same, that there were officials from Banco Elca who went there for different tasks, that the certificates of investment delivered by J. demonstrated its effective existence, and that there was no defect in the consent of the contracting parties, besides the fact that the agreement signed in Guatemala contained an arbitration clause that required them to settle their disputes through that means. The ground is not acceptable. It must first be said that the appeal on the merits (fondo) is provided to verify the correct application of substantive law to a determined factual situation. This is not viable if, to favor the challenge, one starts by disregarding the factual picture contained in the ruling, because the factual premise of the analysis becomes inexact. This can occur by including aspects that were not considered proven or, as in this matter, by denying others that were, as happens with the existence of a ruse (ardid) and a financial harm. For that reason, the examination requested by the defense counsel is not admissible. In any case, it is worth noting that all those aspects were examined and resolved in whereas V of this resolution, in which it was said that it is not true that the Bank was authorized to work in Belize at the time the deception to the detriment of Mr. G occurred. It was authorized subsequently, but that was long after the consummation of the crime, in which A. made him fall into error, offering him investments in a bank that was not operating at that time, and diverting the three million dollars that the former gave him to other personal ends. That was where the defect of consent was to be found. If later that party was willing to sign an agreement in the city of Guatemala to try to sort things out, it was, as stated, to try to salvage something. Or, as Mr. R. said, *"from the drowned man, the hat"* ("del ahogado, el sombrero"). Not because they had not been deceived, since both the defendant's proposals, the existence of an office in Belize City, and even some certificates of investment, formed part of the same fraudulent staging. Finally, the fact that there was an arbitration clause does not at all imply that all disputes between the parties must be resolved through that means, since it is provided for financial, not criminal, disputes, such as the one before us, which must be resolved by the competent criminal courts.

**XXIV.-** Next, as a second ground on the merits (fondo), this time regarding the offence of fraudulent administration (administración fraudulenta), the defense counsel again attempts to discredit the witnesses whose statements compromised A.'s criminal liability. Likewise, he insists that it was not proven that his client was the perpetrator of those acts, nor the amount of harm caused to the Bank. The objection is dismissed. As can be seen, the defense counsel again incurs in the formulation error already indicated in the preceding whereas, by denying in his argument on the merits (fondo) the facts that were taken as true, as stated in proven facts 28 to 69 (folios 17192 to 17204). Regarding the disqualification of the witnesses he intends to make, reference must be made to what was already provided in whereas XXI, in which it was explained to him that mere suspicion is not a reason to dismiss a declarant's testimony, especially when (as in this matter) such witnesses were convincing and concordant with each other and in relation to the rest of the prosecution evidence, which is comparatively overwhelming with respect to the defense evidence, which proved to be flimsy and unsubstantial. To conclude, the topic of the amounts reached by the acts carried out by A., constituting the offense of fraudulent administration (administración fraudulenta), were set forth in whereases VII, VIII, and IX of this resolution, referring where pertinent to the sentence of the lower court (a quo). Therefore, at least the minimum harm suffered is demonstrated (in the liquidation process, the totality of the Bank's accounts have not yet been determined), which unquestionably means the actions constitute a major fraudulent administration (administración fraudulenta mayor). The objection is dismissed.

**XXV.-** Next, the misapplication of a substantive rule is alleged; resorting to altering the demonstrated facts, the co-defense counsel indicates that *“...A. could not and had no means to know that Banco Elca would be intervened the day after the redemption of the H. family… All the intellectual effort made by the judges of the Trial Court is useless since they fail to demonstrate the actual knowledge they attribute to A., substituting it with a presumption...”* He finishes saying that the accused did not dispose of (enajenó) any title, but rather that this transaction represented income for the Bank, of which it was not proven that it had liquidity problems. The grievance is not admissible. Apart from the formulation defects already pointed out, the petitioner fails to take into account that this outflow of funds had indeed occurred when A. irregularly authorized a loan for the corporation Kiona of San Francisco, which he intended to hide with the money from the early redemption of the certificates coming from the H. brothers. Moreover, there were liquidity problems at that time, as he himself told those clients, so it is a situation for which there was indeed proof. Finally, privileged information was not only having knowledge of the date on which it was likely that the Bank would be intervened by the SUGEF. Also constituting privileged information was the knowledge of the weak situation of Kiona of San Francisco, the critical condition of Banco Elca, the debacle in the credit portfolio, and the abusive and criminal maneuvers that had been executed to stall the problems, aggravating them. A. was aware of all these situations and used that same information to continue with his irregular conduct. This too was extensively set out in whereas VII, with support in the body of evidence articulated by the lower court (a quo). It was thus, far from being "income" for the Bank, as the defense counsel says, A. was attempting to cover up the outflow he had irregularly authorized, and *“…the easiest way to obtain it was by acquiring the certificates of investment of the Herrero family because, otherwise, he had no money to do it.”* **XXVI.-** In the fourth ground on the merits (fondo), it is said that, regarding the *back to back* loans, the ruling fails to evaluate the arguments of the defense and does not indicate the protected legal interest, nor could the SUGEF be one, since it forms part of the Banco Central de Costa Rica. He says that this body cannot be considered the offended party and that the lower court (a quo) did not state in what the endangerment (puesta en peligro) constituting the crime consisted. The complainant is not correct. In his claim, that defense counsel does not say which defense arguments the ruling failed to evaluate, nor their importance, but merely points out in general that alleged omission, without demonstrating the procedural interest of his dissatisfaction.

Secondly, it must be clarified to them that, when speaking of a legal interest (bien jurídico), no allusion is made to its bearer or the entity embodying it (the specific individual or juridical person), but rather to the legally protected interest. Thus, the legal interest in a homicide is not one person or another; instead, it materializes in them: life. Therefore, arguing whether SUGEF is an autonomous entity or part of the Banco Central de Costa Rica is not only entirely irrelevant, but it also overlooks the consideration that what is being safeguarded is not the entity itself, but what it protects (the reliability of the national financial market) and, in general, the documents emanating from banking institutions; but above all, as is obvious, the property of those who had trusted in that banking entity is protected. Consequently, the offended party, as the judgment states, is the national banking system, which saw its credibility partially diminished by the actions of the accused, and particularly the savers or investors who trusted in the failed Bank.

To conclude, it must be stated that the judgment does explicitly set forth what the damage caused by A. through those acts was. In this regard, it establishes: *“…the legal interest protected by the rule has indeed been violated, which is none other than the protection of savers, coupled with the fact that his conduct contradicts the legal system as a whole, and endangered the stability of the Costa Rican financial system, by violating public trust in the national financial system, a legal interest also recognized and protected by our legislation; which necessarily implies respect for the assets that the saving public entrusts to the financial institutions that capture public savings, and, consequently, those institutions' deference to the supervision to which they must be subject. So it is not, as A.'s defense pointed out, a matter of protecting abstract or improper legal interests, but rather ones grounded in the special protection of the saving public and the financial system. As the General Superintendent of Financial Entities O stated: ‘The true financial situation was being concealed. The entity's equity position was being improved (...) If it had continued operating, the public would have lost their business’; which certainly, had the defendant A. achieved his purpose, would have occurred with greater harm to investors and savers. Furthermore, that public trust is placed in the persons entrusted with the administration of the assets, in this case, bankers like C., who must show loyalty and care for the protection of those legal interests for their safeguarding, which is violated when false information is supplied, concealing the true financial situation of the institution, to the supervisory entity, charged by law not only with supervision but also with endorsing the provision of the service. There, the danger to the legal interest was no longer abstract—which, in any case, is not unconstitutional as the Constitutional Chamber (Sala Constitucional) has indicated—but concrete, from the moment that the accused's action sought to conceal other irregularities that had already been accumulating.”* (folios 17425-17426). Having been set forth thus, it is clear what the protected legal interests were, what the attack on them was, and the manner in which it occurred. The appeal is without merit.

**XXVII.-** For his part, the defendant A. filed cassation, alleging firstly that the funds of Banco Elca were not alien to him, but his own, since, being irregular deposits, he assumed the character of owner regarding them, and therefore a fraudulent administration could not be constituted. To support his claim, he resorts to citing various authors and to saying that the precedent issued by the Chamber (Sala) in this regard was different, because in that case there were no “irregular deposits” but rather “trust commissions”. The objection is inadmissible. The issue was already discussed and resolved in the tenth whereas clause (considerando) of this decision, so one must adhere to what was provided therein. In any event, it is fitting to explain to the complainant that, the fact that Article 116 of the Organic Law (Ley Orgánica) of the Banco Central prescribes that financial intermediation is carried out *“at the account and risk of the intermediary”*, in no way means that the latter becomes the owner of the funds entrusted to them. Even more, this is evidenced by who is affected in the event of failure, which is not concentrated solely on the intermediary; a fact that proves depositors maintain a preponderant role, which, as stated, is not simply a credit right, but rather they lose their assets. So much so that, when things are not managed well, the risk is not borne solely by the depositary, but by the depositors, and even in many cases (like the present one) the intermediary is not the one who assumes that risk, but rather extends it to the savers, and it is these (and not the former) who suffer the consequences of the acts, without the intermediary assuming the financial responsibility incumbent upon them.

Next, the erroneous reading that the petitioner makes of Article 528 (related to 524 and 529) of the Commercial Code must be corrected. When that rule indicates that: *“In deposits of fungible things, the depositor may agree that things of the same species and quality be returned to them. In this case, without the depositor's obligations ceasing, the depositary shall assume the character of owner **for the purposes of losses, damages, and deteriorations that the deposited things may suffer**”* (underlining supplied), it is obvious that it is referring to the vicissitudes or vagaries that may befall such goods or values, which, being in custody or administration for their use, must be guaranteed in their safety and soundness, therefore, **in the event of loss or deterioration, the loss is not borne by the depositor**, but by the depositary. But, *a contrario sensu*, **for all other purposes, the depositary does not acquire the character of owner**, as the appellant erroneously claims, since they are merely authorized for their use, but do not acquire ownership of them. The objection is without merit.

**XXVIII.-** In the second ground, it is affirmed that the Trial Court erroneously applied the criminal offense of fraudulent administration, given that there is legislation that is more specific than this one to banking matters. *“…the legislator's intention was to create a specific regulatory normative jurisdiction for this type of activities carried out by public and private banks, because, simply put, these institutions differ in their very nature and in the purposes pursued from any other conventional commercial activity…”* With referral to the case law of this Chamber in matters of drug trafficking, it is assured that the actions attributed to the accused are constitutive of the criminal conduct described in Article 159 of the Organic Law (Ley Orgánica) of the Banco Central, in relation to Article 241 of the Penal Code, and not a fraudulent administration. The former imposes a prison sentence on directors, administrators, managers, or agents of an entity subject to SUGEF oversight who incur in the actions foreseen in Article 241 of the Penal Code, that is, who lend their concurrence or consent for acts contrary to the bylaws or the law to be carried out, from which harm may derive for their represented entity or the public. In support of his petition, the accused refers to some traces of the appealed judgment, in which it is stated that he improperly authorized loans or manipulated them in favor of his companies.

He insists that, since the Organic Law of the Banco Central contains specific legislation for this type of entity and its representatives, the liability of these will be covered by those rules and not others. From another angle, the accused reproaches that Article 239 of the Penal Code was not applied to him, instead of the crime of fraud, because the former punishes anyone who offers bonds, shares, or obligations to the public *“…disguising or concealing true facts or circumstances or affirming or insinuating false facts or circumstances…”*, thus describing the actions attributed to him as carried out to the detriment of the corporation Night Glow. The objection is inadmissible. There is a fundamental difference that the defendant is not making: the criminal offenses contained in Articles 239 and 241 of the Penal Code protect good faith in business (buena fe en los negocios). In this matter, we are not only facing an infraction of that legal interest, but also patrimonial damage, which those do not cover. Therefore, from the very beginning, it must be ruled out that we are dealing with rules that regulate the same acts. That is, it must be ruled out that we are dealing with a case of apparent concurrence of offenses (concurso aparente de normas) by consumption (consunción) of the wrongfulness.

But, to explain the matter more gradually, it is opportune to recapitulate here the basic notions of an apparent concurrence of offenses. This, as is known, occurs when two or more precepts concur to regulate an action, but they exclude each other. In such cases, according to Article 23 of the Penal Code, the special rule prevails over the general one, the rule that entirely contains another prevails over the contained one, and the rule that the law has established as dominant does so over the subordinate ones. Consequently, before entering into a discussion on how this matter is resolved, in order to determine if there is a special criminal offense or one that contains the wrongfulness of the other, or whose application is conditioned on the non-application of another, it must be defined for the first argument (that is, the authorization of undue acts versus fraudulent administration) whether both articles, besides constituting crimes in themselves, refer to the commission of **other** criminal acts in turn. The answer is negative, and this saves, once again, having to delve deeper into the topic of apparent concurrence. This is simply unnecessary because the two cited rules allude to different situations.

There are other characteristics that need to be noted apart from the determining characteristics of the protected interests referred to above; that is, neither Article 239 nor Article 241 of the Penal Code punish patrimonial damage, something that Articles 216 and 222 of that same law do, and therefore they turn out to be those that best describe the factual species proven. Thus, while fraudulent administration refers to an activity composed of acts that are criminal in themselves, the authorization of undue acts refers to acts that are not criminal; that is, the authorization of undue acts consists of lending one's consent or concurrence for acts contrary to the law or bylaws to be carried out, but which are not criminal, since in such a case the criminal offense of Article 241 of the Penal Code would not apply, but the corresponding criminal figure. Or, to put it another way, the criminal offense of Article 241 is subsidiary; it applies if those acts are not punished by another specialized rule, with the result that it is this latter rule that qualifies the acts composing the sanctioned activity as criminal, unlike mere “undue acts”, which is a generic qualification of unlawfulness harming good faith in business. That is, it furthermore does not contemplate the possibility of patrimonial damage, but merely the carrying out of the undue acts, this being one more circumstance that differentiates it from fraudulent administration. This same thing **rules out the possibility of speaking or thinking about the possibility of a kind of transit offense (delito de pasaje) between one conduct and the other**, since as is known, a transit offense involves the progressive affectation of the same legal interest, which is ruled out in this case, in which the legal interests involved are different: property (patrimonio) in the fraud crimes and good faith in business against public trust, that is, they punish in that order diverse things such as damage to property and harm to public trust, respectively. Therefore, it is not true that said rules are apparently concurrent with each other.

Additionally, there is another difference, which consists in the fact that in Article 241 of the Penal Code, the administrator or manager *“lends their concurrence or consent”*, meaning they condone acts by others, they do not carry them out themselves. In such cases (as well as in those where commission by omission is applicable due to being in a guarantor position), the applicable crime will be the corresponding one, but not the generic authorization of undue acts, which is foreseen for acts by other subjects. In the present matter, it is consequently obvious that the applicable criminal offense was indeed that of fraudulent administration, both because the authorship of the actions was not that of other subjects, but rather A., who did not lend his concurrence or consent, but carried out the irregular acts himself, and because those irregular acts were not simply “undue,” but criminal and that, apart from damage to good faith in business, they resulted in patrimonial damage to the victims.

Regarding the actions committed to the detriment of Mr. G. and his company Night Glow, it must be said that the appellant again confuses the taxonomy of both rules. The fraudulent offering of credit instruments does not cover the causation of patrimonial damage; rather, it is a crime (like the one foreseen in Article 241) against public trust. So, the mere offering of those bonds, shares, or obligations is sufficient for the crime to be constituted, even if no one had acquired them or had been affected as a result of being induced into error. When that happens, the events transcend to the level of crimes against property and are susceptible, no longer only of being prosecuted as fraudulent offering of credit instruments (something which, incidentally, was overlooked for debate in this case), but also as fraud (estafa), since besides an injury to good faith in business, it is also an injury to the property of the aggrieved parties, a wrongfulness that is neither described nor contained in the cited Article 239. Hence, as with the topic of the authorization of undue acts, we are not, as the appellant claims, facing an apparent concurrence of offenses, but rather two rules that neither exclude each other nor protect the same interests, since a fraudulent offering can be made, thus affecting good faith in business, without generating patrimonial damage, or vice versa, which corroborates that they are not rules referring to the same factual species, nor does one contain the wrongfulness of the other.

**XXIX.-** In the third substantive ground, it is asserted that in the case at hand, the objective components of the criminal offense of use of privileged information were not met, because information that does not have the capacity to influence the price of issued securities is not considered privileged. In the present matter, the redemptions carried out early were for their nominal price, without any additional benefit being obtained. What is intended to be prohibited, says the petitioner, is the alteration of the normal speculation of the stock exchange, through the handling that makes it possible to know what may or may not happen. Given that the transaction with the H. brothers occurred outside the stock exchange, it would not be covered by that article nor by those of the Regulatory Law of the Securities Market (Ley Reguladora del Mercado de Valores), which in its numerals 101 and 102 speak of the “securities market (mercado de valores)”. The challenger is not correct. The securities market is not only the stock exchange, just as the “market” in general is not a specific place. It is an activity. In that sense, there is no doubt that Banco Elca, like many other operators, acted in the securities market, even though many of those transactions did not take place on the stock exchange. Therefore, the aforementioned hypotheses prohibiting the use of privileged information do apply to these acts.

On the other hand, that the information available to the accused was privileged emerges clearly not only from the reasoning of the a quo, but also from the very transcription the accused makes in his appeal, when it is affirmed that *“Privileged information must be such that, if made public, it would influence prices (price sensitive information). Hence, not all non-public information can be considered privileged information”* (López Barja, Curso…, p. 347). Therefore, from the same textual quote made by the appellant, it is confirmed that this information was indeed privileged. Would the value of the certificates he negotiated with the H. brothers have come into their hands were it not because he hid information about the conditions of the loan and the shares of the corporation Kiona de San Francisco? Or because the debt that this company held with Banco Elca stemmed from an irregularly granted loan with a questionable guarantee? Irrefutably, if the investors had known the credit and shareholding situation of that company, they would not have handed over the aforementioned certificates to A., since both that company's debt and its shareholding block would have had a much lower value than they appeared to have, just as it simultaneously concealed the low reliability that Banco Elca had at that time, whose certificates were continuing to be traded on the securities market, ignoring the magnitude of the problem (which included an imminent intervention of the Bank) and, incidentally, fictitiously supporting a price that no longer corresponded to them by virtue of such vicissitudes.

In this regard, it is fitting to keep in mind what the a quo established, a text that has already been referred to on previous pages, but which is worth bringing up again. *“It should be highlighted that, according to the reports of SUGEF, this operation denoted high risk because, according to the payment capacity analysis, this company was left with an indebtedness of 80% and could only pay interest and not the principal. Understand, then, C.'s concern to cancel that loan by any means necessary, and the opportunity arose when the H. brothers accepted the exchange of their investment certificates for that loan, believing that there would be no problems because it was a ‘healthy’ loan. M. says, ‘I insist and what he told me was that we should exchange the investments for healthy loans in other companies, he offers me a loan from Inversiones Kiona for four hundred and fifty thousand dollars and it had as collateral 66% of the shares of FINANCORP brokerage firm and Financorp, he gave me balance sheets from the previous month, I studied them, the balance sheets reflected very agreeable information’. We see then, how the accused, even knowing that the loan to Inversiones Kiona presented problems and having knowledge of the abnormal situation the bank was going through, still offered it to the H. brothers, making them believe that everything was fine, with the reality of things being reflected when the day after that negotiation, Banco Elca was intervened, also affecting the Financorp brokerage firm, with this family having only received from the debtor company a principal payment of fifty-five thousand dollars ($55,000.00) plus the interest corresponding to the first month. It is very clear to the court, that the defendant C., with the full intention of obtaining a benefit for himself, abusing his position as owner and president of Banco Elca and knowing in advance that ‘his’ bank was in trouble, because he had information that SUGEF itself had sent him, deceives M.

telling him that Kiona's investment credit was “healthy,” and once it came into possession of the respective investment certificates, he redeems them in order to thus cancel the far-from-healthy credit that he had granted to that company.”</span></i><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'> To conclude, the issues of whether the early redemption of the certificates belonging to the H. brothers represented an outflow or an income for the Bank and whether or not it constituted an acquisition under the terms of article 245 of the Penal Code, or whether an undue benefit for oneself or a third party was or was not involved, have already been addressed in considerando VII, so what was resolved there must be adhered to, being also something that the judgment holds as proven, and it is therefore not permissible to call it into question again in the substantive review requested.<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt;margin-left:0cm;text-align:justify;text-indent:35.5pt;line-height:200%;mso-pagination:widow-orphan;tab-stops:center 81.0pt right 450.0pt'><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'> <b>XXX.- </b>In the first procedural ground, the appellant alleges that the trial court (a quo) violated the rules of sound judgment (sana crítica), by holding the back-to-back transactions to be non-existent, the result being that </span><i><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'>“…from an accounting standpoint and from a material standpoint…”</span></i><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'> these were real, concrete, and generated resources for the Bank. He says that this type of operations was authorized by SUGEF, which verified that there had been income of one million dollars as a result of them and that if they were reversed it was due to simple doubts of its officials. To support his thesis, an </span><i><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'>“Informe de los Auditores Independientes. Estados Financieros Auditados. Al 31 de diciembre de 2007”</span></i><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'>, from the firm CGS-CPA y Consultores S.A., is provided as evidence, confirming the existence of that money. Subsequently, some excerpts from the judgment are transcribed, to contradict the Court’s conclusion that these operations did not generate profits, making these dependent on the fulfillment of the formalities for the granting of the credits. It is also not relevant, he says, that the original money came from Corporación Elca, because it was a company with its own capital, distinct from that of the Bank. But the truth is that such operations were indeed carried out and the intervenors credited those funds to the aforementioned corporation. </span><u><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'>The accused is not correct</span></u><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'>. The issue of whether those back-to-back operations had effective existence was already partially settled in the twelfth considerando of this resolution, for which reason the parties are remitted to what is stated therein. Regarding what is not discussed in that section and which the appellant raises in his arguments, the following merits mention. Firstly, whether or not the funds had a specific origin, as he says, is irrelevant. What matters is that it was a merely accounting incorporation of some that came from Corporación Elca, which not only did not constitute </span><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'>“</span><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'>fresh money</span><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'>”</span><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'> that strengthened Banco Elca's weak credit portfolio (cartera de crédito), but rather only entered nominally. However, </span><u><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'>it draws the attention of this Chamber that an attempt is made to deceive the Courts of Justice, just as was done with SUGEF</span></u><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'>, by stating that those initial funds of the back-to-back chain, which amounted to 1,240,000 dollars, came from Corporación Elca, when the truth is that only a sum slightly exceeding 850 dollars was taken from that corporation (folio 17405). Hence, the fact that those funds from Corporación Elca were real is irrelevant, if they were an imperceptible part of the total that were supposedly going to be invested in the back-to-back transactions. The rest came from the early and fraudulent redemption of the Bank's own certificates that the appellant had ordered, such as those cancelled with two checks for 118,503.18 dollars and 206,930,896.97 dollars, corresponding to certificates belonging to Messrs. J and W, and a line of credit approved by A. himself in favor of Kiona of San Francisco for the amount of 450,000 dollars (folios 17403-17404), which he transferred to Corporación Elca and from there to the Bank; but this in no way implied that they came from the latter, rather they had only passed through its coffers in accounting terms. </span><i><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'>“That is, it can be established how the base money necessary to operate the mechanism of the back-to-back credits never came from external sources and, consequently, did not constitute fresh money, as was affirmed by A.'s defense. With that money, and no other, the twenty back-to-back credit operations were carried out, thus fictitiously increasing the credit portfolio and the commission income rates that Banco Elca S.A. had to report to SUGEF. As testified by witness A: “they were a series of operations with twenty companies that generated a series of operations that generated one million dollars in commissions and were recorded as commission income, subsequently that one million dollars ends up in Corporación Elca’s account (...) the “back to back” operations begin because Banco Elca receives checks from some checking accounts drawn on Banca Promérica, approximately four hundred and fifty thousand dollars are generated there, the instruction is given to deposit them into different Banco Elca accounts, subsequently, once those monies are deposited, a credit is generated, with the five hundred thousand dollars from Banca Promérica and four hundred and fifty thousand dollars from Banco Elca accounts, and a credit is generated to Inversiones Kiona, later it is deposited in Financorp Stock Brokerage, and one million is gathered which generates the credits on which the “back to back” are created, and they generate the one million in commissions”; E. reports: “they explained a scheme of operations to us on the whiteboard, there were 20 accounts, a transfer came from abroad, an account was opened, a certificate was issued and from there a back to back and so on with all the accounts”; and M.: “we were told that the board of directors had approved the opening of 20 loans of one million, Mr. C. was there and we were told that Sugef had approved it, that Mr. G. and Mr. C. had discussed it, the description was made to us on a whiteboard, with the disbursement of one credit the guarantee of the other credit was created and so on successively”; and as was indicated by expert opinion, the proposed scheme established was to deposit funds – the one million two hundred and forty thousand dollars ($1,240,000.00) that were held in the account of Corporación Elca Internacional, S.A. – into the savings account of one of those corporations – starting with Inversora Agropecuaria 370 C.A. – (see folio 28 of the Evidence File No. 87-A) which, upon receiving the resources, requested that a “Time Deposit Certificate (Certificado de Inversión a Plazo)” be constituted in its name at Banco Elca S.A. itself and, immediately, requested that a Loan be granted to it, which it guaranteed with the Time Deposit Certificate recently constituted in its favor. The loan was approved by the Bank and the respective disbursement was deposited – by order of the beneficiary company – into the savings account of the next corporation, and so on successively until completing the twenty companies, the five Costa Rican ones: Inversiones Silver Reef SA, Vuelo Helicoidal SA, Industrias Artoeyar Ltda., The Blue Water Fall S.A., and Besiberri S.A., and the fifteen Venezuelan corporations: Comercializadora Sommersby C.A., Inversiones Alter 2005 C.A., Inversiones Ridixi C.A., Construcciones Dijon C.A., Agropecuaria Las Consonantes C.A., Inversiones Otawal C.A., Inversiones Sairanac C.A., Inversiones Valle La Pascua C.A., Deportes 4000 C.A., Inversiones Tendensipre C.A., Inversiones Bastron C.A., Inversora Agropecuaria 370 C.A., Herrerías Las Tres Esquinas 888 C.A., Fondo Río Chico CA, and Inversiones Rustol C.A.; since the last company in the chain – Inversiones Bastron C.A. – ordered that the disbursement of the loan granted to it be deposited in the account belonging to Corporación Elca Internacional S.A. No. 122011623, that is, the same account from which the funds originally came out – the initial one million two hundred and forty thousand dollars ($1,240,000.00). That is, the money returned to the account from which it came, thus, one million one hundred thirty-five thousand dollars ($1,135,000.00) from that last disbursement plus one hundred five thousand dollars ($105,000.00) from the remainder of some of the credit operations, as will be explained below. It turned out that from the chain of fund transfers, constitution of investment certificates and formalization of back-to-back credits, there remained in some of the accounts of the companies involved, with the exception of Inversiones Silver Reef S.A., Industria Artoeyar Ltda, The Blue Waterfall S.A., Construcciones Dijón C.A, Besiberri S.A., Inversiones Valle La Pascua C.A. and Deportes 4000 C.A., a remainder of money consisting of the difference between the amount deposited in each savings account and the amount of the credit issued, all of which remainders were transferred that same day, the thirty-first of May of 2004, to the account of Corporación Elca Internacional S.A. No. 1220011623, pursuant to a notice from each of those companies authorizing the debiting of that remainder from their account (cf. folios 35 to 47 of Evidence File No. 87-A), such that, then, as indicated supra, the one million two hundred forty thousand dollars ($1,240,000.00) that were used to carry out the different back-to-back operations returned in their entirety to the account from which they left, that is, the account of Corporación Elca Internacional S.A.. Those remainders totaled one hundred five thousand dollars ($105,000.00) distributed as follows: Inversora Agropecuaria 370 C.A. four thousand dollars ($4,000.00); Fondo Río Chico C.A. one thousand dollars ($1,000.00); Herrería Las Tres Esquinas 888 C.A. five thousand dollars ($5,000.00); Comercializadora Sommersby C.A. twenty thousand dollars ($20,000.00); Vuelo Helicoidal S.A. ten thousand dollars ($10,000.00); Inversiones Rustol C.A. two thousand dollars ($2,000.00); Inversiones Alter 2005 C.A. three thousand dollars ($3,000.00); Inversiones Ridixi C.A. five thousand dollars ($5,000.00); Agropecuaria Las Consonantes C.A. seven thousand dollars ($7,000.00); Inversiones Otawal C.A. five thousand dollars ($5,000.00); Inversiones Sairanac C.A. twenty-eight thousand dollars ($28,000.00); Inversiones Tedensipre C.A. five thousand dollars ($5,000.00) and Inversiones Bastron C.A. ten thousand dollars ($10,000.00); for a total of one hundred five thousand dollars ($105,000.00) which, as stated, returned to the account of Corporación Elca Internacional S.A. No. 1220011623, to be added to the deposit of the last disbursement of one million one hundred thirty-five thousand dollars ($1,135,000.00), thus totaling, once again, the initial one million two hundred forty thousand dollars ($1,240,000.00). In light of reports numbers 421-DEF-300-04 from folios 844 to 853 of volume III and its expansions, 50-DEF-506-04/05 from folios 3746 to 3750 of volume IX and 283-DEF-274-05 in folios 5237 to 5239 of volume XII, and the clarifications provided on them by the O.I.J. expert José Antonio Bravo Bonilla, it can be concretized that the mechanism used, following the order of those twenty back-to-back credits, was: (1) from the account of Corporación Elca Internacional, S.A. No. 122011623, A. transferred the gathered one million two hundred forty thousand dollars ($1,240,000.00) to the savings account of the company called Inversora Agropecuaria 370 C.A. at Banco Elca S.A. No. 112003321, which in turn requested that with those amounts an Investment Certificate be issued at Banco Elca S.A. No. 200028446 for an amount of one million two hundred thirty-six thousand dollars ($1,236,000.00) for a one-month term (renewable for equal terms) in order to proceed to request that a credit operation be formalized in its favor, No. 300012955 for the same sum as the Certificate and guaranteeing it with the latter; (2) The resources of said credit were deposited in the savings account of Fondo Río Chico C.A., No. 112003226, and with these funds and in favor of this company, Investment Certificate No. 200028434 was constituted at Banco Elca S.A. for one million two hundred thirty-five thousand dollars, and at the same Banco Elca S.A. credit operation No. 300012947 was formalized in favor of this company for the same amount and with said certificate as guarantee; (3) Those resources were deposited in the savings account of Inversiones Silver Reef S.A., No. 112003290 and with them, in favor of this company, Investment Certificate No. 200028443 was constituted at Banco Elca S.A. for one million two hundred thirty-five thousand dollars ($1,235,000.00) and immediately at Banco Elca S.A. credit operation No. 300012952 was formalized in favor of this company for the same amount, and with said certificate as guarantee; (4) Those resources are deposited in the account of Herrería Las Tres Esquinas 888 C.A. No. 112003249, with them Investment Certificate No. 200028437 was constituted at Banco Elca S.A. for one million two hundred thirty thousand dollars ($1,236,000.00) and Banco Elca S.A. formalized in favor of this company credit operation No. 300012950 for the same amount, and with said certificate as guarantee; (5) The resources of said credit were deposited in the account of Comercializadora Sommersby C.A., No. 112003261, with them Investment Certificate No. 200028441 was constituted at Banco Elca S.A. for one million two hundred ten thousand dollars ($1,210,000.00) and credit operation No. 300012959 was formalized in favor of this company for the same amount, and with said certificate as guarantee; (6) Those resources were deposited in the account of Vuelo Helicoidal S.A., No. 112003350, the investment certificate was issued at Banco Elca S.A. No. 200028450 for one million two hundred thousand dollars ($.1,200,000.00) and credit operation No. 300012960 was formalized in favor of this company for the same amount, and with said certificate as guarantee; (7) That money was deposited in the savings account of Industrias Artoeyar Ltda, No. 112003344, the Investment Certificate was issued at Banco Elca S.A. No. 200028449 for one million two hundred thousand dollars ($.1,200,000.00) and credit operation No. 300012963 was formalized in favor of this company for the same amount, and with said certificate as guarantee; (8) With those resources a deposit is made in the account of The Blue Waterfall S.A., No. 112003381, with them and in favor of this company Investment Certificate No. 200028456 was constituted at Banco Elca S.A. for one million two hundred thousand dollars ($.1,200,000.00) and Banco Elca S.A. formalized in favor of this company credit operation No. 300012965 for the same amount, and with said certificate as guarantee; (9) With those resources the next deposit is made in the account of Inversiones Rustol C.A., No. 112003309, in favor of this company Investment Certificate No. 200028451 was constituted at Banco Elca S.A. for one million one hundred ninety-eight thousand dollars ($.1,198,000.00) and credit operation No. 300012961 was formalized for the same amount and with said certificate as guarantee; (10) Those resources were deposited in the account of Inversiones Alter 2005 C.A., No. 112003189, Investment Certificate No. 200028442 was constituted in its favor at Banco Elca S.A. for one million one hundred ninety-five thousand dollars ($.1,195,000.00) and credit operation No. 300012951 was formalized for the same amount and with said certificate as guarantee; (11) That money was deposited in the account of Inversiones Ridixi C.A., No. 112003255, Investment Certificate No. 200028436 was constituted at Banco Elca S.A. for one million one hundred ninety thousand dollars ($.1,190,000.00) and credit operation No. 300012948 was formalized for the same amount and with said certificate as guarantee; (12) The sum obtained was deposited in the account of Construcciones Dijón C.A., No. 112003315, with it Investment Certificate No. 200028448 was constituted at Banco Elca S.A. for one million one hundred ninety thousand dollars and with it as guarantee credit operation No. 300012958 was formalized for the same amount; (13) The money is deposited in the account of Besiberri S.A., No. 112003410, Investment Certificate No. 200028455 was constituted in its favor at Banco Elca S.A. for one million one hundred ninety thousand dollars ($.1,190,000.00) and the same Banco Elca S.A. formalizes in favor of this company a credit operation No. 300012964 for the same amount and with said certificate as guarantee; (14) Those resources were deposited in the account of Agropecuaria Las Consonantes C.A., No. 112003373, with them Investment Certificate No. 200028447 was constituted in favor of this company at Banco Elca S.A. for one million one hundred eighty-three thousand dollars ($.1,183,000.00) and with it as guarantee credit operation No. 300012956 was formalized in favor of this company for the same amount; (15) The money from that credit was deposited in the account of Inversiones Otawal C.A., No. 112003284, with it Investment Certificate No. 200028452 was constituted at Banco Elca S.A. for an amount of one million one hundred seventy-eight thousand dollars ($.1,178,000.00) and immediately at the same Bank credit operation No. 300012962 was formalized in favor of this company for the same amount and with said certificate as guarantee; (16) The resources of that credit were deposited in the account of Inversiones Sairanac C.A., No. 112003232, with them Investment Certificate No. 200028435 was constituted in favor of this company at Banco Elca S.A. for one million one hundred fifty thousand dollars ($.1,150,000.00) and with it as guarantee credit operation No. 300012949 was formalized in favor of this company at the cited bank for the same amount; (17) The resources of that credit were deposited in the account of Inversiones Valle La Pascua C.A., No. 112003278, with these funds Investment Certificate No. 200028438 was constituted at Banco Elca S.A. for one million one hundred fifty thousand dollars ($.1,150,000.00) and credit operation No. 300012954 was formalized in favor of this company for the same amount; (18) The resources of said credit were deposited in the account of Deportes 4000 C.A., No. 112003404, with these funds Investment Certificate No. 200028439 was constituted at Banco Elca S.A. for one million one hundred fifty thousand dollars ($.1,150,000.00) and credit operation No. 300012957 was formalized in favor of this company for the same amount and with said certificate as guarantee; (19) The resources of said credit were deposited in the account of Inversiones Tendensipre C.A., No. 112003338, Investment Certificate No. 200028444 was constituted in favor of this company at Banco Elca S.A. for one million one hundred forty-five thousand dollars ($.1,145,000.00) and credit operation No. 300012953 was formalized in favor of this company for the same amount, and with said certificate as guarantee; (20) That money was deposited in the account of Inversiones Bastron C.A., No. 112003427, with it Investment Certificate No. 200028453 was constituted at Banco Elca S.A. for one million one hundred thirty-five thousand dollars ($.1,135,000.00) and with it as guarantee credit operation No. 300012966 was formalized for the same amount. Consequently, with all these fictitious financial movements the accused A. managed to increase, in accounting terms, though not financial terms, the Credit Portfolio (Cartera de Crédito) of Banco Elca S.A., directed by him, by a total of twenty-three million eight hundred thousand dollars ($23,800,000.00), as well as to record commissions, which are also fictitious since, as will be seen, it involves the same original money, for credit disbursements in favor of the Bank for one million exact dollars ($1,000,000.00), all of which took place on a single day, the thirty-first of May of two thousand four, and with the sole purpose, then, that it would be recorded in the Bank's Financial Statements on that date. From the foregoing, it is duly proven that not only did no external resource enter Banco Elca S.A., but neither did it obtain any real benefit from those movements, save, then, the accounting one only, and whose sole purpose was to simulate a healthy financial situation, just as Superintendent R. pointed out: “The nature of those operations was something fictitious, also the purpose because the bank was showing normality when it was in irregularity two. The true financial situation was being hidden. The entity’s equity situation was being improved. Files were reviewed and it was determined that they did not meet requirements. Since March it was evident that the bank was at risk, just by reviewing 15%, it was not the first time it was in that situation in irregularity one and two. If it had continued operating the public would have lost their business.” Although the accused A. testified in the trial, he made no mention of the topic addressed in this section of the judgment, in addition to the fact that he refrained from answering questions from the procedural parties. The foregoing despite the fact that, in writing (cf. folios 4059 to 4065 of volume X of the main file) there is an extensive statement by him on the related back-to-back credits which, although it does not greatly detract from the Court’s elaboration, does seek to evade his responsibility. Conversely, to what was stated there by the accused A., (cf. article 343, paragraph 3 of the Code of Criminal Procedure (Código Procesal Penal)) his private defense counsel now affirms that the cited back-to-back credits produced fresh income for the bank, among other reasons because they produced commissions on the order of one million dollars ($1,000,000.00) that entered its coffers. However, this is no more than a defense argument and does not merit credibility, as it is once again verified that it involves, not a distinct fresh money, but the same money that served as the basis to generate the back-to-back credits and that returned to the checking account of Corporación Elca Internacional, S.A. from which it originally came, as has already been established.”</span></i><span lang=EN-US style='font-family:"Times New Roman";vertical-align:baseline'> (folios 17405-17413). On the other hand, if SUGEF authorized those operations – incidentally, in a conditional manner (which was disrespected) – it was under the belief that the information provided by the accused and his bank was reliable, something which in the end was revealed as mistaken, since he sought to hide that these operations were a simple accounting maneuver to feign that the financial institution’s situation was not so critical. Thus, regardless of the possible anomalies in the granting of the credits in question, what is relevant is that the entire succession of operations was nothing other than a setup.

Faced with this entire situation, the importance of the financial report conclusion provided by the defendant is unclear, which on folio 26 accounts for a “rejected legalized obligation” (sic) for 1,006,047 dollars produced by the reversal of the commissions from the aforementioned back to back operation, as this does not certify, much less, that this money was generated as profit, but rather that what exists is an accounting obligation, whose final destination depends on the corresponding judicial resolution.

**XXXI.-** As a second procedural ground, the accused reproaches that the existence of intent (dolo) in the fraud (estafa) of which he was accused was not proven. He comments that the references made to this point in the judgment are brief and lack evidentiary support, which is not mentioned by the Judges. On the contrary, he asserts, many of the elements taken into account by the lower court (a quo) confirm the inexistence of that intent (dolo), for which he seeks support in some parts of the judgment that he transcribes. He says that Mr. G. made investments on at least three different occasions with his bank, two of which were positive, and that in the third he tried to honor his commitments, responding with his own resources, on which he expounds by recounting the efforts in that sense and what the witnesses said. The ground is not admissible. All those aspects, the consideration of the judgment paragraphs referred to by the petitioner, were already discussed and resolved in recitals II, IV, V, and VI, in which it is stated what specific evidence the lower court (a quo) took into account to demonstrate the various components of the fraud (estafa), including the fraudulent intent (dolo defraudatorio), for which the interested parties are referred to what is recorded therein.

**XXXII.-** As the next ground, the accused claims the illegal incorporation of evidence originating from the Bahamas, for which it was not proven that bank secrecy had been lifted or that the chain of custody was respected. Being evidence that does not benefit the suspect, the lack of objection or the use of these pieces of evidence by the defense does not cure the defects they contain and they must be excluded. The matter has already been resolved in the twentieth recital when addressing the appeal of his co-defender. Abide by what was ordered therein.

**XXXIII.-** In the fourth claim, it is argued that due process was violated, as the hearing was not conducted in the two phases that had been agreed upon in the intermediate stage. *“…this procedure has caused serious harm to the accused's rights, as he was denied the possibility of presenting to the members of the Tribunal the means of proof aimed at providing more information for the purpose of setting the penalty to be imposed.”* The reproach is not receivable. The matter was already resolved in recital XIV of this resolution, so one must abide by what was decided there. Besides the fact that the appellant does not indicate what means of proof he could not present in the closing arguments that he could have raised in the second stage of the hearing that he misses, or what he could have said in that stage that he could not in the trial as it was held. Therefore, the complainant provides no additional reason beyond those that were analyzed in the already referenced recital.

**XXXIV.-** Continuing with the trend of reiterating grounds already filed by his defenders, the defendant alleges that the penalty imposed on him lacks sufficient reasoning. He says that article 142 of the Code of Criminal Procedure (Código Procesal Penal) imposes the duty to provide reasoning for decisions, and that article 71 of the Penal Code (Código Penal) establishes the parameters that must be considered for determining the penalty, all of which was disregarded by the lower court (a quo), which did not evaluate the personal qualities of the accused, such as his studies or age. He concludes by saying that the purpose of the sanction must be resocialization, and therefore twenty-three years of imprisonment are disproportionate. All those aspects were already debated in recital XV, consequently referring the interested parties to what was established therein.

**XXXV.-** Finally, in an additional brief, A. presented a sixth procedural ground, in which he denounces erroneous evaluation of the evidence, by giving credit to witnesses who *“…clearly possessed a very particular interest, specifically the interest of not being implicated as defendants in the same acts…”* He alludes to the testimonies of H and J. He then transcribes doctrine and jurisprudence of the Spanish Constitutional Court regarding what constitutes the correct evaluation of evidence, as well as extracts from the judgment highlighting the participation as actors, and later as witnesses, of both subjects. He ends by saying that there was no independent evidence to corroborate the information they provided, and once again turns to doctrine on “negative intrinsic criteria.” The ground is declared without merit. The fact that doctrine and jurisprudence assert that special care must be taken in the evaluation of persons who are linked by relationships of friendship or enmity, or by interests concordant or contrasting with the accused, does not mean that those statements must be disqualified, but rather (and in this the complainant agrees) that greater attention must be paid. However, in turn, that does not prove that in this case those witnesses were untruthful, something that not even the accused in his appeal attempts to demonstrate; instead, he simply casts a shadow of suspicion with which he seeks to devalue said evidence, without specifying in what aspect they are not true or which evidence discredits them. On the contrary, as explained pages ago, said testimonies, although coming from persons who had an accessory participation in some of the acts (for which they reached a conciliation), proved to be consistent and internally logical, as well as consistent with the context and the other evidence presented. Furthermore, it must be categorically stated that there was indeed independent evidence that confirmed the statements of those witnesses, as was developed in recitals II, III, and XXI, when addressing the issue of the reliability of witnesses F., E., and G. The appeal filed by the defendant A. is without merit.

**XXXVI.-** The representatives of the civil defendant, the bankruptcy of Banco Elca sociedad anónima, filed an appeal, claiming in the first ground, which they head as *“violation of the rules of sound criticism,”* that the lower court (a quo) infringed substantive law, because in the present matter no patrimonial injury was caused to the sociedad anónima of Mr. M. Leaving aside the technical imprecision of jointly alleging reasoning problems and incorrect application of substantive law to the factual species being questioned (which is a claim for indirect violation of the law), it must be said that the appellants are not correct. After transcribing *in extenso* the relevant part of the judgment, said applicants say that the investment certificates issued in exchange for the three million dollars delivered by Mr. G.'s representative to A. were genuine; and that, on the other hand, these funds had to be deposited outside Costa Rica. If the bank in Belize could not take deposits at that time, that does not mean it was not bound by such certificates, and therefore they should have been collected there. On the contrary, it was not demonstrated that the aggrieved party undertook efforts to collect the money in the place where she voluntarily sent it, or that it did not arrive at that destination, which they emphasize on the following pages. The objection is not admissible. Both in this ground and in the subsequent ones, the constant will be that the appellants seek to suppress the fundamental fact about the category of the events that concern us: that this is not a mere financial negotiation, but the commission of a crime. So much so that even if the funds were destined for another location or a banking agency of another country was mentioned, this in no way inhibits the national courts from hearing the matter and ruling according to the law, given that the events took place in Costa Rica, where both the deception and the patrimonial injury to which it led occurred. This aspect, which is criticized by the petitioners, who deny that such deception and injury occurred, is amply demonstrated, as there exists reliable evidence already recapitulated above showing that A. received three million dollars from Mr. G., to whom he had offered the offshore services of the Banco Elca in Belize. These were not delivered “voluntarily,” but with a will vitiated by the error into which the accused made him fall, by telling him that such services existed when in reality the respective permit was barely being processed, but this was useful so that, trusting in that version, G. delivered the money and A. diverted it to an account of his own, without sending it to Belize, where it was not possible in any case, given that the activity of the cited agency was a fallacy. It goes without saying that G. could not recover his funds. Therefore, focusing on the events as if it were a simple financial transaction and demanding that solutions consistent with such condition be sought (collection efforts, verification of deposits, and other proceedings), ignores that this is not a simply commercial situation, but rather it was a crime, which was carried out through the simulation of false data or circumstances (an inoperative agency, facilities that simulated being active, fictitious certificates, a deposit in an account that was not such, etc.), which the appellants take as true to request a different solution than the civil conviction of their represented party, something illogical and precisely what is being demonstrated was a fallacy. To conclude, what was established by the lower court (a quo) in this regard cannot be omitted from citation, as it is even more clarifying. *“It has been alleged (folios 16637 a 16639 of volume XXVII principal) that the Costa Rican judges are not competent—although in reality it is a matter of lack of jurisdiction of the national courts—to rule on the civil lawsuit since the certificates in favor of Night Glow S.A. (in accordance with the principle of literality inherent to negotiable instruments), must be considered issued in Belize, which is the place determined in the contract, and therefore it is in that country where the contract must be fulfilled and any controversy settled, as established by articles 1907, 323, and 324 of the Code of Private International Law commonly known as the Bustamante Code, as it will continue to be called. **This argument must be rejected.** Firstly, it must be said that Belize does not appear to date as a signatory, adherent, or ratifying country of the Bustamante Code (see official information on the OAS page: http://www.oas.org/juridico/spanish/firmas/a-31.html), so it is not observed how a regulation that is not part of its legal system could be applied to it. Secondly and more importantly, whoever formulates this reproach attempts to overlook the essential element of this discussion, which is that the aforementioned securities lack value as such (that is, as negotiable instruments) because they were part of the means used by the defendant C. to induce the offended entity into error. And it is said that they are not securities properly speaking because at the time of their issuance, Elca International Bank and Trust Limited of Belize was not authorized to take deposits from the public and, therefore, to bind itself in a contract of the nature of the one discussed, as recorded in the documents on folios 35 a 40 of the complaint file of Cori Consulting and Financial Services S.A. On the other hand, the obligation being claimed with the civil lawsuit is not properly derived from the referenced certificates—which would presuppose their validity—but rather one derived from a crime (estafa) and that crime was committed in Costa Rica because the money was delivered at the facilities of Banco Elca in San José to C., who, although not present at that moment, gave instructions to H. for its reception and disposal for his benefit. It was in that place that A. appropriated it by ordering it to be transferred to an account of his own outside the country, over which he later disposed for a purpose different from that contracted. If the crime occurred in Costa Rica and the documents were only a means to cause the offended party to fall into error, it is in Costa Rica where the claim must be brought, this being the court, after the other stages of the process have been completed, competent to rule on the merits, being the criminal treasury court with jurisdiction to hear the crimes indicated in numeral 1 of Law No. 8275 creating the Criminal Jurisdiction of the Treasury and the Public Function, among which are those provided for in the Organic Law of the Central Bank of Costa Rica and, by connection, any other related act either because it is committed by the same defendant—as here occurs—or due to other circumstances provided for in the norm (articles 50 and 51 of the Code of Criminal Procedure). As if what has been said up to this point were not sufficient for the rejection of the claim, it must be added that the check with which R. pays the three million dollars is delivered to H. at Banco Elca of Costa Rica on May 31, 2002 at 10:50 a.m., and that is the same date appearing on the certificates (See folios 2588, 2590, 2592, and 2594 of volume VII principal), which were also withdrawn in San José, Costa Rica, which, added to the fact that at that time there was no license to take deposits and that the local bank handled documentation with the letterhead of the Belize bank, allows for the inference that this issuance never occurred in Belize, although it is recorded as such, but rather was made in Costa Rica.”* For all the foregoing, the ground must be declared with merit.

**XXXVII.-** As second and third grounds, the appellants underline that it is not true that the negotiation with the sociedad anónima Night Glow was on behalf of Banco Elca with A. acting as an intermediary *“…because the evidentiary elements presented during the adversarial proceedings only reflect that the aforementioned financial transaction was personally with (sic) C. and J…”* Resorting to compiling some traces of the testimonial evidence, the petitioners reiterate that the Belize agency existed and that the money was voluntarily delivered with the purpose of being deposited there, and not in Banco Elca of Costa Rica, to which in any case it did not arrive, as it was deposited by A. in an account of his own. Moreover, that G., being a successful businessman, and his representative an experienced lawyer in the field, confused both financial entities. It is for this reason that, according to those testimonies and documentary evidence insufficiently weighed by the lower court (a quo), it could be demonstrated that this debt was not the responsibility of Banco Elca, to the point that it was rejected as part of its contractual obligations. The appellants are not correct, as they continue to confuse the typology of the events. Banco Elca is liable for the civil consequences of the fraud (estafa) committed to the detriment of Night Glow sociedad anónima, not because it had any contractual obligation with it—something that is amply ruled out and on which the appellants unnecessarily insist, as it is not being discussed, the appellants insist. The liability arises from a criminal act, from a crime, and the extracontractual consequences it entailed. It is, therefore, irrelevant whether the meetings held at the facilities of Banco Elca in San José contractually bound it or not; or whether those funds were destined to be deposited there or not; or whether Gaber and his representatives were susceptible to confusion. The crux of the matter does not lie in what were the commitments acquired by Banco Elca and accepted by the counterparty, which is what the representatives of the civil defendant meticulously try to debate, but rather the extracontractual liability it bears by virtue of the criminal offenses committed by its representative, who, using the means and credibility that his status as president of Banco Elca and the apparent solidity thereof provided—from which he even offered offshore services—was able to deceive G. and make him deliver three million dollars. Regarding that issue, cutting a considerably documented and logical argument like the one made by the lower court (a quo) from folio 17290 onwards, for the sake of conciseness, does not do justice to the judgment. *“What remains to be determined, then, is whether there are grounds to civilly convict the bankruptcy of Banco Elca S.A.? That is, it is necessary to analyze whether the Bankruptcy of Banco Elca S.A. has passive standing to be sued or whether, on the contrary, and as the defenses of the civil defendants have alleged, there is an incomplete necessary passive joinder either because **Elca International Bank and Trust Limited** was not brought as a defendant, or Corporación Elca Internacional S.A., which was the regulator of the group. A parenthesis must be made to indicate that the civil defense of C. as a natural person lacks interest in referring to this matter as it only affects the Bankruptcy of Banco Elca, which is not represented by C. and there is a separation of assets and legal separation between natural and legal persons. That is, independently of what is resolved on this topic, C. as a natural person always answers for the civil consequences of his crime. Despite what has been said, the topic will be addressed jointly. The unanimous criterion of the tribunal is that the Bankruptcy of Banco Elca does have standing to be sued passively, and that there is no necessary passive joinder pending completion that prevents issuing a ruling. The latter because, although Corporación Elca was the regulator of the economic group, its liability is subsidiary (article 142, second paragraph, of the Organic Law of the Central Bank) and, in any case, C. openly stated—including to the offended entity—that the offshore entity in Belize (which he indicated was already in operation or omitted to say lacked a license to take deposits) was a branch of Banco Elca S.A. and not of the Corporation, although indirectly it did belong to it. If it was a branch of the bank, Banco Elca S.A. (today its bankruptcy) answers for it, as the President of said bank mentioned it as another service of the bank, an aspect in which—precisely—the ruse consisted. In this sense, refer to what was already stated in section VI.1.(ii) (iii) of this judgment. On the other hand, Elca International Bank and Trust Limited was the ruse deployed by the defendant A.

If he had offered documents from a non-existent entity, that non-existent entity could not be sued. In this case, he offered to invest in an existing entity but without permission to take deposits at that time and issued certificates in its name but without registering the funds with it, so it is he and the bank of which the offshore was going to be a service that must answer. Finally, if there were any liability on the part of Elca International Bank and Trust Limited (whose name changed to Interbank and Trust Limited), it would be joint and several, and in that case the creditor may choose against whom to direct its claim (article 640 of the Civil Code: "The creditor may claim the debt against all the joint and several debtors simultaneously or against only one of them"), without prejudice to the co-debtor summoning the other co-debtors, a power that was not exercised in this case by the civil defendants. The passive standing of the Bankruptcy of Banco Elca comes from two sources. First, because the law itself establishes a strict liability (responsabilidad objetiva)—which merits no assessment whatsoever—and is based on a kind of protection of third parties who saw the administrator acting in representation of the company and, although it may seem contradictory, on a form of "objectivized sanction against the company for fault in choosing and in supervising (culpa in eligiendo e in vigilando)" with which it acted when choosing said officer. Thus, article 106, subsections 2 and 3 of the Criminal Code establishes that those jointly and severally obligated with the perpetrators of the punishable act to pay the damages are "legal entities whose managers, administrators or legal representatives are found responsible for the punishable acts" as well as "the (...) legal entities that own establishments of any nature, in which a punishable act was committed by their administrators, employees and other workers in their service." Similarly, article 137 of the 1941 Criminal Code (rules on civil liability in force pursuant to Law No. 4981) provides that companies are jointly and severally liable with the perpetrator "for estafas, defrauds and forgeries of any kind that, in the exercise of their powers and on the occasion of and in the performance of the service of those entities, are committed by their directors, managers, administrators, agents or employees." It has been duly demonstrated, as was extensively set forth when assessing the evidence, that C. was the President, representative and de facto administrator (with hierarchical authority superior to that of the general manager) of Banco Elca S.A. and that, acting in functions proper to his office, he offered the offended entity the offshore services of that bank in Belize—which bore the name Elca International Bank and Trust Limited—thereby making it appear that it was the same entity, as normally operated in other banking institutions in the country. C. has been found to be the responsible perpetrator of the crime of estafa, an illicit act that was consummated at the facilities of Banco Elca in Costa Rica when R. appeared to deliver the check for three million dollars and, because A. was not there at that moment, H. received it, who, after a telephone communication with A. who gave him the instructions to follow, made a note—on letterhead of Elca International Bank and Trust Limited—giving instructions on how to proceed with said money. Therefore, the joint and several civil liability of Banco Elca (today of its Bankruptcy represented by the Liquidation Board (Junta Liquidadora), which is the succession of that legal entity) is imposed. In this sense, both doctrine and jurisprudence have already pronounced: ¬"…since 1962, our jurisprudence has established that legal entities incur direct liability for the acts of their governing and executive bodies, which means that the fault of the body is the fault of the legal entity and, therefore, once the fault of the body is established, and that it caused the damage in the exercise of or on the occasion of its functions, the legal entity is automatically liable, and nothing releases it from liability (...) Therefore, if the official of a legal entity is criminally liable for a crime committed in the exercise of his duties, the legal entity has no other way to exonerate itself." TAMAYO JARAMILLO, J. Indemnización de los perjuicios en el proceso penal. Biblioteca Jurídica Diké, Medellín, 1st edition, 1993, pp. 137-138. ¬"...by operation of Law, the civil liability of legal entities is exhaustively determined, whose managers, administrators or legal representatives are found responsible for punishable acts. This rule does not establish any exception, in such a way that it is not possible to disapply it even in the event that the civilly liable legal entity is also the party offended by the criminal act committed by its representatives; to act otherwise would be contrary to Law and therefore what is requested by the challenger must be disregarded." Third Chamber of the Supreme Court of Justice, vote No. 2005-1114 at 3:45 p.m. on September 29, 2005. But, on the other hand, even if there were no legal provision in that sense, such liability would still be established because if the circumstantial evidence is analyzed, it is then determined that there is no possibility of understanding that passive standing is held only (although it may also be jointly and severally liable, in which case the creditor reserves the possibility of proceeding against whomever it deems pertinent, without having done so in this case and without that implying any procedural sanction against it: articles 637, 640 and 646 of the Civil Code) by Elca International Bank and Trust Limited," as argued by the defense of A. and the Liquidation Board (Junta Liquidadora). This is so because A. created an artificial, fictitious situation, to make it appear that it was just another operation of Banco Elca S.A. in which case, in application of the theory of piercing the corporate veil and the appearance of the legal situation, Banco Elca S.A.—which was the true creator of the entire situation through its president—is the one who must answer (now through the representatives of the Liquidation Board (Junta Liquidadora) of its decreed Bankruptcy, as provided by national legislation) since: "In large companies—very particularly corporations and other stock companies—the origin and nature of the operation, its orientation and the radical transformations that it may undergo emanate from a reduced group of people and sometimes from just one, who have full dominion and governance of the company. When the collapse of the entity occurs, a deep deterioration or a maneuver aimed at defrauding other shareholders, poorly rendered accounts will hardly appear. The fraudulent acts assume other forms, of much greater caliber, which have sometimes been carried out within a more or less formal framework and framed within the governing powers of their leaders. But they abusively exceed what is permitted and, in violation of the duties of good administration, they profit from the criminal acts and harm the rest of the shareholders or abusively oblige them (…) The most usual and skillful are the emptying of companies and the veil, under which a fraudulent reality is covered." MILLAN, Alberto. Los delitos de administración fraudulenta y desbaratamiento de derechos acordados. Buenos Aires, 1976, pp. 39-40. Circumstantial evidence constitutes the common way of proving certain types of criminality, particularly when it comes to "hiding" realities behind legal shells. Therefore, in crimes such as estafa, simulation fraud and fraudulent administration, this evidence is extremely important which, in accordance with the system of freedom of proof that governs us (article 182 of the Criminal Procedure Code), is fully admissible (RODRÍGUEZ RESCIA, Marcos and ESPINOZA OBANDO, Marianella. Fraude de simulación, IJSA; San José, 1st edition, 1997; CASTILLO, Francisco. “La prueba indiciaria”. In: Revista Judicial No. 1, San José, 1979; GIANTURCO, Vico. Los indicios en el proceso penal. Translation by Julio Romero Soto, Bogotá, 1974; ROCHA DEGREEF, Hugo. Presunciones e indicios en juicio penal, Ediar S.A., 2nd edition, Buenos Aires, 1997; JINESTA LOBO, Ernesto. La simulación en el derecho privado. Escuela Judicial, San José; 1990). Among the circumstantial evidence to determine the reality of what happened—which prevails over the form or appearance that was given—which is not numerus clausus and following the exposition of the last author, the following applicable to this case appear: *Causa simulandi*, motive or interest one has for presenting as real something that is not: C. required new investments to clean up his Bank and to be able to carry out other operations in which he was immersed. By May 2002 the bank had gone through states of financial irregularity decreed by SUGEF, A. was immersed in new financial projects (founder of Hospital Cima San José, among others), the national banking market maintained strong competition with powerful international banks that were arriving in the country and forcing alliances, mergers or absorption of small banks, Banco Elca did not have at that date any offshore branch that other banks did maintain, which reduced its competitiveness. Therefore, A—who personally used to attend to important clients of the institution—so that the various operations that M. was willing to conduct would not leave his institution, offers the services of an offshore branch in Belize that A. knew was barely in process and that was not yet authorized to take deposits, because F.y and G. had told him so on the occasion of that specific negotiation. A. presents this as another service of Banco Elca S.A. to the point that the money is received at its facilities, where instructions are given to the alleged bank in Belize on letterhead of the bank in Belize, which bore the same name and the same external signs as the national one, all of which is discussed before senior managerial levels of the Costa Rican bank and by delivering in Costa Rica, through the staff of Banco Elca S.A. and at its facilities, the investment certificates and interest coupons of the bank in Belize, only to later request their custody. *Neccesitas:* The accused A: needed that simulated business to happen because he derived benefits from it and obtained money to meet his obligations. Note that he managed to obtain three million dollars (plus some immediate or momentary cash flow from using the bank's platform for international transfers) that ended up in the account of Bosques de Ayarco BA S.A. which he dominated, an account that A. used to pay overdrafts as indicated by H. *Affectio:* the existence of family, friendship, dependency, business or other relationships are important for the simulator. As A could not carry out the scheme by himself, he avails himself of the broad prestige and respect that all his employees and all the institution's personnel rendered him, because he behaved, as such, as the general hierarchical superior, above the general manager and not as a "passive" board chairman. It is important to remember that no witness referred to C. in a disqualifying manner. One indicated that he had "him covered in medals" although they later fell off one by one (Varela). All witnesses highlighted the gift of people skills, the kind and respectful treatment and the trust they had in him because he even prayed in the mornings before starting the workday (in this sense E). The trust, respect and even unconditional admiration held for him was the norm. A. avails himself of this so that people he had brought into the bank (H. and J.) keep silent about many aspects they knew were not correct at that moment and trust that A. would not perform any act with an illicit result even if the means were not regulated. Therefore, at the meeting with G. and his associates, A. calls people from the bank with important hierarchical positions and before them speaks of the offshore branch as another service of Banco Elca S.A., all of them knowing that it was not yet in operation but only in process, which gave the appearance of verisimilitude, before his trusted personnel, to A.'s efforts, especially when he claimed to be solvent and to pledge his wealth and prestige for the final satisfaction of the client. A. puts at the head of the Belize operation someone of his complete trust, as was J, a person until then of recognized banking prestige, who had opened offshore branches of other banks (Banco del Comercio, for example) and who held an honorary position in the country where the branch would be opened, so there was no reason whatsoever to doubt the lawfulness of what A. was presenting at that moment as real. *Notitia* or knowledge of the simulation by the accomplice: How could J. not know that the offshore bank in Belize did not exist or did not have the authorizations to take deposits when he himself was aware of the process? How could he not notice that situation when signing the investment certificate? Evidently he did know of said situation and he himself said so. Even Bolívar reported that F.y once had him sign other certificates of that bank and told him that the Belize one was a clone of the Costa Rica one and that those authorized to sign locally were also authorized abroad, which F.y himself knew was not the case. When F.y and A. sign the investment certificates of Elca International Bank and Trust Limited in favor of Night Glow S.A., they knew that the bank was not operating but that their client trusted in what they made appear real to him, both acting in the exercise of their positions as President and advisor of Banco Elca S.A. and acting at the facilities of this bank. *Habitus, character:* any antisocial or unlawful conduct is important and must be taken into account. The witnesses indicated that Night Glow S.A. was not the only entity to which the offshore bank service of Banco Elca S.A. was offered, but rather that A. offered it left and right and "his mouth could not be shut" as indicated by H. reported that he signed certificates of that bank in favor of J. and there is also admitted documentary evidence referring to similar certificates in favor of Cori Consulting and Financial Services S.A., facts that were not the subject of this debate because a conciliatory agreement was reached. It was said in part VI.1 (ii) (iii) that A. offered the offshore branch without objection as another service of the bank. This reveals a pattern of behavior of the accused A. and the lack of fault of the victim since all of them, recognized national and foreign businessmen with extensive financial, banking and investment backgrounds, believed in A. because of the way he presented the business (at the facilities of Banco Elca, with its managerial personnel, on letterhead of the Belize entity, alluding to an entity with the same name as the Bank and the same external signs and availing himself of the trust placed in him due to the prestige he had until then). It will also be determined in this judgment that those were not the only irregular, immoral or illicit acts committed by A. but that, some time later, he created fictitious loans, managed to evade the normal procedure for credit applications approving or extending them by himself, in favor of companies related to himself, authorized early redemptions of certificates in favor of his family but not of third parties and, knowing the serious situation the bank was going through that would warrant the imminent decree of a degree of irregularity by SUGEF, he created fictitious operations to "window-dress" the institution's accounting reports, etc. That is, there is simultaneous and subsequent behavior of the accused A. that denotes disrespect for rules and procedures and his eagerness to present as real forms that were not. *Subfortuna:* the lack of economic means necessary to continue performing the banking activity on the part of the simulator is evidenced, in this case, by the fact that, although on a personal level and before any ordinary person he maintained a solvent economic position, the institution he represented did not have it before the banking environment. That is, it lacked the resources required to stay in the financial system with a bank open and operating regularly. Let us remember that although the certificates in question were issued in May 2002 and SUGEF notified it some time later that it had to significantly increase reserves due to various irregularities in credits that had been observed (many of which are closely and directly related to A.'s personal management as will be analyzed in other considerandos), several witnesses said that the bank had already been in a significant degree of irregularity, that F.y lent his accounts to A. to obtain resources that he could no longer obtain on his own, etc. (thus the statements of H, C, etc.), so that obtaining resources was pressing for A. and doing so by pretending that they would be invested in an offshore branch of that bank abroad (which, in itself, was a common practice in other banks of the country at that time) was the appropriate way to obtain them. *Banking movement:* patrimonial legal transactions always entail a banking movement, especially given the magnitude of certain operations. In this case, it is proven that the sum of three million dollars was debited from the account of Montañas Mágicas del Sur (also owned by M)—along with other amounts not claimed—and with the cashier's check that was created—in the name of the bank where A. held the account of his company Bosques de Ayarco S.A. because A. requested it as part of the procedure to deposit the money into the account in Belize—it was delivered to the person authorized for that purpose by C., none other than the general manager of Banco Elca. Later the money was deposited in the account of Bosques de Ayarco, owned by C. as stated at folios 53-54 of the complaint file of Cori Consulting and Financial Services and from there it went to various accounts related to C. as H. indicated. It is not recorded that A. ever transferred that sum to any international bank in the name of the offended entity (and not in his own), so the mention contained in the investment certificates referring to Elca International Bank and Trust Limited is just that, letters on paper, without that money being received by the bank that, later, was authorized to operate but with a change of name (folios 35 to 40 of the complaint file of Cori Consulting and Financial Services S.A.), all without the victim's knowledge, and it was sold to the Venezuelans as A. himself said and as stated in the email at folio 7209 of Volume XV of the main file in which he attempts to disengage from the obligation based on the legal forms cited, forgetting these elements that stood out from the appearances of the business originally agreed upon. *Retentio possessionis:* maintaining possession of the thing or lack of execution of the simulated contract: this is evidenced when the accused A. and F.y keep under their custody (the latter materially and the former by dominion of the situation) the original investment certificates and do not deliver them to R. despite this person's persistent requests. That possession of the certificates was also achieved thanks to the trust and credibility that said persons deserved and the fact that, as F.y was consul in Belize and in charge of traveling constantly, he would eventually have greater ease in negotiating the said negotiable instruments if required (as the victim was told). However, the retention of the certificates demonstrates the need for the victims not to have documents proving the falsehood of everything being feigned. On the other hand, the retention of possession of everything that occurred in the Bank of Belize is evidenced because even the expenses of that institution were attempted to be introduced into the financial statements of Banco Elca S.A. (see folio 10496 of Volume XIX of the main file), which determines the dominion of one over the other. *Tempus:* it was already said that there is suspicion due to the time of execution of those contracts because by May 2002, Banco Elca S.A. required significant resources with which to meet the various obligations it had, including that of maintaining a face of normality before national supervisory institutions. A. himself indicated that he had had a significant "run" of investors following acts in which a presumed investor (M) was involved, who dedicated himself to picketing in front of the bank and H, reported that this caused so much damage to Banco Elca S.A. that C. began to receive money from "mechudos," that is, investors from casinos, with cash from Colombia, etc. *Insidia:* maneuvers of the simulator that exceed the levels of social tolerance by making the victim participate in the simulation: how could one forget that A. summoned the complainant to meetings in Guatemala to make him participate in supposed forms of payment and meetings so that he would capitalize his investments? *Provisio:* these are the simulator's provisions to achieve the end and avoid the betrayal of the accomplice (Varela saw how A. carried away documentation from the bank shortly before the intervention; later, documents related to this operation appeared at his father's house. Álvaro Castro indicated that A. called him to tell him that he would side with him or with F.y and G. and, in this case, "little papers" would appear that compromised him, with which he intended to secure his loyalty and silence. *Incuria:* carelessness in accidental elements of the simulated business. Notwithstanding what has been said so far, it is clear that A. neglected details that, nevertheless, were useful for making the victim fall into the deception. He uses as the name of the offshore branch the same "Elca Internacional" that the controlling corporation of Banco Elca S.A. (Corporación Elca Internacional S.A.) had, and the external signs are the same (if one observes the logo of the original certificates next to contemporary documents, it is clearly perceived that it is the same way of writing the name, the same colors, etc.) and he holds the meetings within the same Banco Elca S.A., summoning the managerial officers of the institution who thus become witnesses to the proven irregularity. A. also neglected, in this attempt to separate both institutions, that a special account had been opened in the name of J. in the financial statements of Banco Elca with which the expenses of the supposed bank in Belize would be paid (folio 10496 of Volume XIX) and that, to set it up for operation, at a date much later than the victim's certificates, part of the local staff had to be taken there, with expenses covered by Banco Elca S.A., as the compliance officer indicated. *Inertia:* the accomplice shows a passive attitude. Note that according to what G. indicated in debate, J. showed himself to be willing, in C.'s absence, to give them various documents. He always assented that the money would be delivered, that they were making arrangements, and gave excuses for the delay, but the one who ended up giving the final word (negotiating to convert them into shareholders of the bank in Belize and saying, simply and plainly, that he was not going to pay) was C. *Dominance:* dominant role of the principal, which in this case is A., whom everyone obeys and pays homage to, believing everything he says and trusting everything he does. *Intra-procedural circumstantial evidence:* which manifests itself with the parsimony in explanations of central themes and eloquence in trivial or marginal themes; the occlusive and omissive conduct tending to hinder the evidentiary work manifested by the refusal to deliver the original documents originally displayed by F.y or in the proposal of a defense strategy, material and technical, aimed at blaming everyone—except A.—for everything and in expositions with broad analysis of small details that leave aside the central theme. All these pieces of circumstantial evidence, weighed together, allow us to conclude that what happened was not that an international bank intervened as a third party in a national negotiation, as has been attempted to make it appear, but rather that Banco Elca S.A., through its President and legal representative, feigned the existence, under conditions of normality, of an institution in order to take deposits in its name of funds that, in reality, never entered said entity because not only was it proven that the money entered the account of Bosques de Ayarco S.A. belonging to or dominated by C. but also because, at that time, the said institution did not have a license from Belize to take deposits. Consequently, it is the one who created the appearance (Banco Elca S.A. through its officers) who must answer and not necessarily a third party whose name was used.

The same would occur if the entity used had not existed at all (and not, as in this case, where it was in the process of being set up but could not operate with respect to taking deposits) or if, existing legally and lawfully, its name is used, without its consent, for the business of others. It is those others who are liable and not those whose name was improperly used. All of this, of course, without prejudice to any joint and several liability (solidaridad) that may exist (given that at the time of the facts the representatives of the Belize entity were A. and F.), which as such does not prevent Banco Elca S.A., now its Bankruptcy (Quiebra) and Liquidation Board (Junta Liquidadora), from having to answer in this case, at the free choice of the civil plaintiff as occurs in joint and several obligations (solidarias) (Article 640 of the Civil Code)…. By virtue of all the foregoing, if—as has been proven—C. had the intention, when issuing certificates of Elca International Bank and Trust Limited of Belize, of presenting that institution as an offshore branch of Banco Elca S.A., an entity in which he acted as its representative, in order to later use the asset and legal separation of the companies to evade liability for the money received, it is clear that he abused the right and, therefore, the legal form (two separate companies) must not be considered, but rather the appearance presented to the victims (C. acting on behalf of Banco Elca S.A. and committing himself in the name of that institution, for which it answers) and, therefore, the court—having the obligation to prevent a crime from having major legal consequences—cannot consider that Banco Elca S.A. (now its bankruptcy and Liquidation Board) lacks civil liability. It is by virtue of what has been said that the exceptions of lack of passive standing (legitimación pasiva), lack of active standing (legitimación activa), lack of right, and the generic sine actione agit (see folio 13853) must be rejected and the civil compensatory claim filed by Night Glow S.A. must be upheld not only against C. acting in his personal capacity (as the perpetrator of the crime) but also against Banco Elca S.A., now its Bankruptcy represented by the Liquidation Board. Night Glow S.A. has the right to have its money returned, as it was delivered in good faith and involved in a crime already declared. Even if the money could have come from another entity (Montañas Mágicas del Sur S.A.), there is freedom of disposition of assets and if the representative of Montañas Mágicas S.A. invests it in the name of Night Glow S.A. and the latter does not recover the investment, it is the latter who has active standing to sue, without prejudice to the liability that the representative may have for that transfer if any illicit act was involved, which this is not the avenue to declare nor do the civil defendants have an interest in that. It does not matter, for the purposes of active standing, who is the sole owner of the shares of such entities, since its general judicial attorney-in-fact always acted in the process in accordance with the documents at folio 952 of volume III principal and 118-119 of the civil claim file (among others) and its special attorneys-in-fact (see folio 121 of the civil claim file). A. and the Bankruptcy of Banco Elca S.A. (as the successor of the bankrupt Banco Elca S.A.) have standing to be civilly sued, one being the perpetrator of the crime and the other the company in which it was committed, by its attorney-in-fact, administrator, and legal representative, and giving the appearance that it was binding that institution and acting within the proper scope of its functions. There is a current interest because the damages (daños y perjuicios) have not been compensated, they have already come into legal existence, they are not expectations of a right, and they are not time-barred because the period for that runs from their recognition in a judgment (Article 138 of the current rules of the 1941 Penal Code on civil liability according to Law Nº 4891 and 868 of the Civil Code).” In summary, as this Chamber already stated above, concurring with the weighted and documented exposition of the a quo, since A. acted in his capacity as president of Banco Elca and using the credentials it possessed, the Bank assumed the condition of jointly and severally liable (obligado solidario) party for the illicit acts he incurred. This being so, although the transaction for three million dollars was carried out with the alleged agency located in Belize, that is not an obstacle for the Bankruptcy of Banco Elca to assume that liability on extracontractual terms. Both grounds are dismissed.

**XXXVIII.-** As a fourth procedural ground, the appellants return to the topic that only the plaintiffs claimed to be unaware that the offshore agency of Banco Elca in Belize did not have a license to take deposits; that it later obtained that license; that the transaction with Mr. G. was a personal business of A. and that the agency in Belize belonged to the Elca Corporation, and not to Banco Elca, for which reason the latter should not answer; that it was not proven that the funds were not credited in that place; that there must be sufficient provisions in said entity to honor the debt with G.; and, again, that there is no causal link that binds or makes their represented party liable for those facts. The claim is without merit. It must again be explained to the petitioners that their analysis starts from erroneous normative premises, as it is assumed that it was a financial transaction and, from that fact and the rules governing the matter, they draw their conclusions. However, as has been repeatedly stated in this resolution, this was not a normal financial transaction, but rather a crime that was expressed through it, thus changing the applicable regulations, as was extensively set forth in the preceding Considerando. That being explained there, a segment in which all the topics the appellants again raise in this ground are addressed, the parties are referred to what was decided.

**XXXIX.-** The next issue the appellants question is the active legitimation ad causam (legitimatio ad causam activa) held by Night Glow sociedad anónima, since this was recognized to it after being discussed in the process, despite the fact that the record shows that the money delivered to A. came from the account of another sociedad anónima of that same businessman, namely Montañas Mágicas del Sur. Therefore, they affirm, the former could not appear in the process as a civil plaintiff nor be indemnified, given that it was not harmed and cannot act on behalf of the other company. Since no representative of Montañas Mágicas del Sur appeared, the action could not be substantiated or granted. Furthermore, it was not proven through the means prescribed by the Commerce Code who the partners of both legal entities are. Both allegations are without merit. In a criminal process, it is not required, as the appellants indicate, that the status of partners be demonstrated through the Shareholders' Registry Book, which may be required in other proceedings, but not in criminal proceedings, where, as is known, the principle of freedom of proof (libertad probatoria) stipulated in Article 182 of the Criminal Procedure Code governs. In application of this principle, relevant facts can be proven by any lawfully obtained means, such as the testimonies given in the debate, none of which called into question that G. was the sole partner of those two legal entities; rather, those who claimed to know about the matter confirmed it. On the other hand, the fact that the money came from another sociedad anónima or, in general, any other person, to be invested on behalf of Night Glow, does not mean that the former had to appear and not the latter. What is important is that the latter is the injured party, because the money was deposited on its behalf. Consider, for example, funds that any person deposits on behalf of another, or that are lent to another for investment. Obviously, in such situations, the one who is offended by any misdeed is the beneficiary of the deposit or loan, and not the one who delivered the money under whatever title (depositor or lender, for example). In short, as in any other similar scenario, the one who is aggrieved is the holder of the right, the one in whose favor the deposit or investment was made, and not the source of origin of the funds, because nothing prevents, according to the principle of free disposition of assets, any person from making an investment for the benefit of another (provided the latter does not reject it), with the latter, and not the former, being the one who would be harmed if those funds disappear or deteriorate. In summary, the fact that the money invested on behalf of Night Glow came from Montañas Mágicas del Sur, or any other company or person, did not imply that the latter was the one who had to appear at trial, because the status of offended party belongs to Night Glow, and not the source of the funds, which for these purposes is irrelevant as to where they come from or under what title. On these questions, it is again worth referring to what was established by the a quo, which stands out for its clarity and forcefulness. “Regarding the substantive exception of lack of active standing (ad causam), it is also not deemed admissible because, as will be analyzed extensively when the specific topic is addressed, G., as the sole owner of the share capital of Night Glow S.A. (as indicated by him as well as by R. and J. and as recorded in the documents at folios 16144-16149 of volume XXVI principal and 16630 of volume XXVII, which is a public document and has not been argued as false in the corresponding avenue: Article 370 of the Civil Procedure Code), is the one who delivers the money and authorizes R. to deliver the cashier's checks to make the investment of three million dollars. According to the instructions given, R. delivers the money to H.—on the orders of C., who was acting as President of Banco Elca (since A. was not present at that moment, as indicated by H., who stated that he called him and A. told him to receive the checks and gave him the specifications for the investment certificates (certificados de inversión) to be made out in the name of Night Glow S.A.)—so the former, in said capacity, has standing to sue the person who subsequently refused to return the invested funds and who had provided incorrect information about the said investment, that person being the defendant here, who acted, at the time, both in his personal capacity and in his capacity as President of Banco Elca S.A., for which reason he can now be sued in his personal capacity and the same can be done with respect to those who now hold the representation of Banco Elca, as will be analyzed in due course. The statements by the defense of Mr. C. to the effect that it was not proven that M. is the owner and sole shareholder of Night Glow S.A. or of Montañas Mágicas S.A. or that the money belongs to the latter entity and not to the former, so the representatives of Montañas Mágicas del Sur S.A. are the ones who have to sue, are also without merit. It must be remembered that in criminal matters the principle of freedom of proof governs (Article 182 of the Criminal Procedure Code), so everything can be proven by any legitimate means of proof, unless there is a prohibitive provision to the contrary, which there is not for these purposes. Mr. G., as well as Mr. R. and J., stated that both Montañas Mágicas del Sur S.A. and Night Glow S.A. are companies whose sole shareholder is Mr. G. and that while the money was taken from the accounts of the first company, it was to invest in certificates of deposit in the name of the second company, with the principle of free disposition of assets making that possible, so that the entity with the standing to sue is the company in whose name the investment certificates were constituted (Night Glow S.A.) even though the funds may have come from another source, and, therefore, no defect is observed in this regard. Furthermore, should any controversy exist regarding the ownership of the money, it is something that the entities Montañas Mágicas del Sur S.A. and Night Glow S.A. must resolve, and the civil defendants or criminal defendants have no interest in any potential controversy that might arise, as they have standing to be sued by those in whose name the instruments were issued, as was indeed done, regardless of whether or not some agreement mediated the issuance of those documents.” (folios 17037-17038). It is thus explained that, contrary to what was argued by the petitioners, the sociedad anónima Night Glow did have standing to appear in the process and that the authority (personería) of Mr. G. over it was correctly accredited. Consequently, with all that has been said, the ground is declared without merit.

**XL.-** In the last procedural ground, the appellants assert that the judgment granted the liquidation of interest on the sums owed even after the bankruptcy of Banco Elca was declared, which was declared on February 24, 2005. This goes against what is established by Article 885 of the Commerce Code, which causes the accrual of ordinary and default interest vis-à-vis the estate to cease immediately from that moment. They add that, apart from creating a disadvantage for the other creditors, it represented an excess on the part of the a quo by making a liquidation that the civil plaintiff did not make, which should have been rejected as generic. Furthermore, they say, the rate used is the one specific to civil obligations, which is incorrect. Finally, the complainants say, the request was to protect the deposits, whereas the a quo grants them as compensation. The allegation is without merit. Indeed, the rate used is the one that corresponds to civil obligations, because the liability that arose from the facts is of a civil nature, and not commercial or of another nature. This, it must be remembered again, does not originate from a commercial act, but from a criminal one, making civil legislation applicable in this respect. For that very reason, the cessation of interest ordered by commercial legislation with respect to the entity's obligations upon bankruptcy is not applicable to this case, in which what is being dealt with is not a commercial obligation and its ordinary or default interest, but a civil liability arising from a crime, which has a status that effectively makes it different from the other obligations of the bankrupt entity, which arose as commercial in nature and, consequently, are governed by the regulation that mandates such cessation. But, as has been stressed to the point of exhaustion, in this matter the category and legal discipline of the facts is different, because one is dealing with a criminal offense and not a mere commercial transaction, which is a distinction that the appellants have systematically omitted. Furthermore, it is not true that the plaintiff did not liquidate the sums it was claiming. For this purpose, it referred to the rates in force at each time, which are and can be known by the interested parties. In other words, when indicating that the liquidation of interest must be performed according to the rate in force during the different periods that make up the time elapsed from the criminal act, it is not necessary to ritually mention the different rates in force in each period, as these are set by the Central Bank of Costa Rica, without needing proof because they are a parameter of general knowledge. Moreover, the legal concept by which the compensation for interest is requested is irrelevant, as it is up to the Judges to apply the regulations in force, in accordance with the principle iura novit curia, because it is a matter of Law. The relevant point is that the party demanded that compensation and it was grantable, even if the normative basis was different from that mentioned by the plaintiff.

**XLI.-** In the substantive ground, the issue is raised again that the interest was not liquidated by the plaintiff according to the rate in force for each of the periods elapsed, so by doing so on its own account the Court substituted the will of the plaintiff and granted more than what was requested. The issue was already discussed and resolved in the preceding Considerando, so what was established there must stand.

**XLII.-** In the sole ground that makes up his cross-appeal (recurso por adhesión), the attorney for the complainant and civil plaintiff challenges the incorrect application of the substantive rules. He maintains that, when liquidating his fees, the a quo applied the fee schedule of N° 20307-J, but that his intervention and that of his client in this matter began on August 22, 2005, when the new tariff, N° 32493-J, was already in force (in effect since its publication in La Gaceta N° 150, of August 5, 2005). He indicates that, although that decree contains a transitional provision prescribing that processes already begun are governed by the repealed schedule, the truth is that, for his client, the proceeding began in August 2005, when she intervened in it. The ground is not admissible. Before addressing the claim, the party must be informed that the counter-evidence to the testimony of Dr. Carazo Serrano offered by the cross-appellant at 18412 ceased to have procedural relevance, as the testimony of the cited physician was rejected in this venue (folio 18550), which is why its submission was not pertinent. Regarding the allegation presented by Licentiate R., it must be noted that the process does not begin for a party when they intervene, but when the proceeding of the cause has started. Thus, even if the intervention may be late, the truth is that this cannot lead to maintaining that the process “began” then, which would make the “start” of each proceeding relative to each of the intervening parties, with the consequence that, as in this matter, professional fees would be different according to the date on which participation in the process began. To the contrary, it must be clear that the beginning of the process is one thing, and the beginning of the intervention in it is another, and they are not the same. The former can develop and exist even if a specific party does not intervene, or when their intervention is delayed; the latter begins with the proceeding or, as happens here, finds it already begun. Consequently, it is not admissible to argue, as the appellant says, that because his client appeared in the process on August 22, 2005, the applicable fee schedule is the one published a few days earlier, because this schedule contains a transitional provision which states that for matters already begun, the previous schedule would continue to govern. Therefore, as this cause is among those that had begun before the enactment of the professional tariff schedule of 2005, it must continue to be governed by the one that preceded it, that is, decree 20307-J. In conclusion, the point is correctly resolved by the Court and the appeal must be declared without merit.

**XLIII.-** Regarding the evidence presented by defense attorney Elizondo Breedy dated June 29 and filed at folios 18673 and following, it should be noted that, as the appellant himself acknowledges, regarding the nature of the back to back operations, they do not provide any novel argument, as this element was already discussed in earlier pages. The fact that they were made by the representative of the creditors of Banco Elca on the Liquidation Board does not add any other factor of consideration to the actions of A. analyzed herein nor do they in the slightest contradict the fraudulent maneuvers that were carried out under the pretext of said operations.

**XLIV.-** Then, regarding the conduct observed by the defendant A.

as a person deprived of liberty, and the request that the "cruel penalty (pena cruel)" (in the words of the defense attorney) imposed on that fifty-year-old citizen be reduced, the matter was also resolved in the preceding pages, declaring that said penalty is not deemed disproportionate, and the conditions of the accused in his capacity as a person deprived of liberty may be taken into account by the Prison Administration (Administración Penitenciaria) or even the Judge of Execution of the Sentence (Juez de Ejecución de la Pena) to determine the specific patterns by which, according to the circumstances, the service of the prison sentence imposed in the judgment on A. will be governed.

Por Tanto:

The appeals in cassation and the joinder filed are declared without merit.

dm had been repeatedly told that it could not operate and that Mr. C.<span style='mso-spacerun:yes'> </span>was offering it (...to) Mr. J. (...) he was entrusted with opening a bank license in Belize, it was the only bank without an offshore bank. The decision was made to incorporate it, but it was not part of <st1:PersonName ProductID=\"la Corporaci&#65523;n\" w:st=\"on\">the Corporation</st1:PersonName> even though the partners, natural persons, were largely the same (...) The administration did not like having offshore matters handled at Elca if they were not related, and that is why F.'s<span style='mso-spacerun:yes'> </span>office was moved to an office in <st1:PersonName ProductID=\"La Sabana. El\" w:st=\"on\">La Sabana. El</st1:PersonName> offshore bank was incorporated and obtained its operating license around 2002, but it obtained the license to raise funds at a date after the funds were raised (...) Despite the fact that it could not raise money and the warnings from me and J., <b>not only to G. but to other persons was the possibility of making these investments offered, and this was done directly by Mr. C.</b> <span style='mso-spacerun:yes'> </span>because I did not allow things to be mixed up and J.<span style='mso-spacerun:yes'> </span>would get angry w<b>hen, at a meeting at the bank, this was offered to a client</b>. J.<span style='mso-spacerun:yes'> </span>was very reserved regarding Belize matters, and as far as I know, he did not make offers, nor did I, nor did any bank official (...) <b>Offers were made for investments in the Belize bank at Elca's facilities</b> but they were not offered by the corporation. The administration did not agree, but we could not silence Mr. C. The person offering that was Mr. C., he attended to very important clients and was in charge of clients of a certain magnitude. (...) <b>I know for a fact that the facilities were used to offer the international bank, I heard Mr. C.<span style='mso-spacerun:yes'> </span>making the offers</b> and Mr. J.<span style='mso-spacerun:yes'> </span>scolding Mr. C.<span style='mso-spacerun:yes'> </span>because <b>the investor was confused because a bank that did not form part of it was offered as if it formed part of the corporation, and this was not told to the investor.</b> We were concerned that Mr. C.<span style='mso-spacerun:yes'> </span>would assign a bank officer to give them information, and she (M.<span style='mso-spacerun:yes'> </span>for example) had no idea what they were talking about, and that is why J.<span style='mso-spacerun:yes'> </span>entered the scene. I can think of two or three more clients who invested in the Belize bank (...) The bank license was in place but not the license to raise funds, and offers were made before that, not because I heard them but because I found out. One of those is C.'s<span style='mso-spacerun:yes'> </span>(...) Mr. C.<span style='mso-spacerun:yes'> </span>openly offered the Belize bank (sic) and J.<span style='mso-spacerun:yes'> </span>was like a tomb (...) the creation of the Belize Bank (sic) was not a decision of Elca's Board of Directors; it was Mr. C.'s<span style='mso-spacerun:yes'> </span>and his partners' (...) Mr. C.<span style='mso-spacerun:yes'> </span>was obviously warned that the bank was not authorized to operate (...) and also not to mix Belize operations nor Elca employees in that type of transactions (...) At Elca International Bank and Trust Limited, I do not recall if at J.'s<span style='mso-spacerun:yes'> </span>request I signed something for KPMG (...) I have never been to Belize.' But the matter also came to the attention of <st1:PersonName ProductID=\"la SUGEF\" w:st=\"on\">SUGEF</st1:PersonName>, as Ms. C., Director General of Private Banks at that entity, stated: 'In August 2002, Mr. Bernardo Alfaro, former superintendent, received an anonymous email reporting that Elca had an entity domiciled abroad. It indicated that the Central Bank of Belize had authorized a banking license but they were formalizing. Follow-up was given, and in September 2003, Mr. C.<span style='mso-spacerun:yes'> </span>reported that the Board of Directors had agreed that the company would not be part of the financial group. We were very clear that this entity had to be part of the group and that they had to request authorization for the offshore and incorporate it into the financial group, hence the report. He said they were going to be outside the Elca Corporation, and I was informed of Elca Bank & Trust or something similar, and he was told they must proceed to eliminate the name Elca so as not to create confusion among the public. In October, we responded to J.<span style='mso-spacerun:yes'> </span>stating that they would not conduct intermediation operations in Costa Rica and that they had reserved the bank's new name, which did not include the name Elca. I do not know if the bank began to operate. I know H(...) I am unaware if he was related to the offshore bank. An offshore entity operates outside the country. The local bank of an offshore group can provide certain services to an entity domiciled abroad provided that it forms part of the financial group and there is a contract regulating that situation. There is no possibility of raising investments if it does not form part of a Costa Rican financial group; it is only a transfer of funds at the account and risk of the person making it (...) I do not know if <st1:PersonName ProductID=\"la Junta Directiva\" w:st=\"on\">the Board of Directors</st1:PersonName> of Elca approved that offshore, nor did they inform me. The definitive name of the bank in Belize was Interbank and Trust; I do not know if it operated.' This statement finds support in what is established by the official communication at folio 4413 (main volume X) signed by S.<span style='mso-spacerun:yes'> </span>and addressed to C., as legal representative of <st1:PersonName ProductID=\"la Corporaci&#65523;n Elca\" w:st=\"on\">Corporación Elca</st1:PersonName> Internacional, on February 17, 2003, and received by the general management on that same date. Therein, A.<span style='mso-spacerun:yes'> </span>is reminded that since <b>December 18, 2002</b>, 'this Superintendency requested information about the current status of the steps being taken by that <b>Financial Group</b> to obtain a license to operate an offshore bank in Belize and the date on which they expect to begin procedures before <st1:PersonName ProductID=\"la SUGEF\" w:st=\"on\">SUGEF</st1:PersonName> for the acceptance of said location, prior to the request to incorporate said entity into the Financial Group, which to date had not been answered,' which coincides with the reference made by the court-appointed administrator, M.<span style='mso-spacerun:yes'> </span>, in saying: 'I did not participate in the period prior to the intervention, but it was mentioned to us that the group had requested to establish an offshore in Belize and that an agreement had been reached not to include it in the financial group, and the steps were taken by Mr. J. People came forward stating they had participated in the bank or through the bank. Carabetta with Inversiones Savinelli and Cori Consulting came forward saying that: that they had carried out steps at the bank but not necessarily at the offshore.'<span style='mso-spacerun:yes'> </span> The fact that the offering of the Elca International Bank and Trust Limited certificates was made to various persons finds evidentiary support in the documents at folios <st1:metricconverter ProductID=\"1064 a\" w:st=\"on\">1064 to</st1:metricconverter> 1071 of volume III. There is a copy of a note (with the received stamp of Banco Elca, General Management, and addressed to the general manager of Banco Elca) dated October 1, 2002, in which the representative of Cori Consulting and Financial Services S.A. delivers to Banco Elca the original interest coupons of Elca International Bank and Trust Limited for custody, to be exchanged upon maturity and deposited "free of national banking commissions." There is no document determining that H.<span style='mso-spacerun:yes'> </span>formally formed part of the representatives of Elca International Bank and Trust Limited, so the fact that this correspondence was sent to him and that he was aware of these operations denotes that the offshore operations in Belize were considered as just another service of the Costa Rican Banco Elca S.A., since otherwise, how can it be explained that this note is sent to the general manager of this institution? Would it be sent the same way to the general management of any other bank? Evidently not, only from related institutions or from those that provided the service referred to therein. It should be noted that, according to the document at folio 42 of volume I issued by the Central Bank of Belize, it is precisely October 1, 2002, when the bank has permission to operate as an offshore (without yet having a license to raise funds, which they would not obtain until early 2004), and by then, other certificates and their interest coupons had not only been issued but were close to their maturity. Likewise, in volume XV (documentation seized at J.'s house), there is a certified copy of evidence file No. 19, which records copies of certificates issued by Elca International Bank and Trust Limited, with the same format as the one presented by the plaintiffs, signed either by J.<span style='mso-spacerun:yes'> </span>or by him and C.<span style='mso-spacerun:yes'> </span>and issued starting from February of <st1:metricconverter ProductID=\"2003 a\" w:st=\"on\">2003 to</st1:metricconverter> the name of entities such as F.y Rosados S.A. or Olga Rozados Pazos, Arjuna Limited, Veda Inc., Nirvana Inc., Jiva Inc., Rank Inc., Deva Inc., Sage Inc., Sahara Inc., Valley International Inc., and Top-co. Inc. (see folios <st1:metricconverter ProductID=\"6608 a\" w:st=\"on\">6608 to</st1:metricconverter> <st1:metricconverter ProductID=\"6612 a\" w:st=\"on\">6612 to</st1:metricconverter> 6623), without forgetting the documents that, in the same vein, Bolívar was asked to sign in favor of Mr. Penón, as that witness stated. Of course, the matter was known to the person in charge of creating that branch, J., who said that "he (C.<span style='mso-spacerun:yes'> </span>) offered it (referring to Elca International Bank and Trust Limited) like offering confetti on Central Avenue. I clearly told him it could not be done, but he<span style='mso-spacerun:yes'> </span>put the entire corporation at its service, as a package."<span style='mso-spacerun:yes'> </span> Furthermore, from some correspondence issued by F.<span style='mso-spacerun:yes'> </span>, it is clear that there was an initial interest in the Bank being part of the Elca Financial Group of Costa Rica, and that if this could not be achieved, it was due to the interventions of the authorities of the respective countries, such as <st1:PersonName ProductID=\"la SUGEF\" w:st=\"on\">SUGEF</st1:PersonName> in Costa Rica (through the mechanism mentioned above and described by Ms. C.) or due to opposition from the Central Bank of Belize to requirements from North American authorities. Thus, in main volume XV, there is a certified copy of evidence file No. 21 (documentation seized at J.'s<span style='mso-spacerun:yes'> </span>house, according to seizure report 362112 of July 22, 2004, visible at folio 573 of main volume II) and in folios <st1:metricconverter ProductID=\"7290 a\" w:st=\"on\">7290 to</st1:metricconverter> 7292 there is a copy of a memorandum addressed by J.<span style='mso-spacerun:yes'> </span>(representative of Cori Consulting and Financial S.A.) in which F.<span style='mso-spacerun:yes'> </span>informs Tinoco that the Bank in Belize begins operations on January 16, 2004, and that it could not be put into operation earlier because the United States began to '...require from offshore centers their collaboration so that in cases where there are banking operations (parallel banking structures) related (by management or affinity of their shareholders) to other financial districts (Case of the Elca-SUGEF Financial Group), uniformity criteria should be promoted so that a single regulator controls two or more groups/banks...' and adds that the new license is in the name of Interbank and Trust Limited and was not objected to by <st1:PersonName ProductID=\"la SUGEF\" w:st=\"on\">SUGEF</st1:PersonName><span style='mso-spacerun:yes'> </span>as long as it was an international bank and was not included in the Elca Financial Group. That is to say, the name change was not only due to <st1:PersonName ProductID=\"la SUGEF\" w:st=\"on\">SUGEF's</st1:PersonName> recommendation given the confusion caused among investors (and this Court adds, no longer only because of the similar name "Corporación Elca Internacional"/"Elca International Bank..." and the almost identical logos, but also due to the common use of facilities, personnel, and even the attempt - halted by <st1:PersonName ProductID=\"la SUGEF-\" w:st=\"on\">SUGEF-</st1:PersonName> to include the expenses of one in the financial statements of the other entity) but also to the change of having it no longer as an offshore of the national bank but as an international bank. Even this last aspect was referred to in a different manner by C.<span style='mso-spacerun:yes'> </span>in his inquiry. While in the trial he indicated that 'The offshore bank is developed as an alternative for competitiveness, it was managed as a foreign bank, it is not really an offshore but an international bank managed abroad,' he incurred in a true lapsus by initially recognizing that it was an offshore branch (that is, part of Banco Elca S.A.) and then, aware of what he had just said, clarifying that it was not that but an international bank. In his earlier inquiry (folios <st1:metricconverter ProductID=\"4043 a\" w:st=\"on\">4043 to</st1:metricconverter> 4089, especially folios 4088 et seq. of volume X, which can be assessed under the terms of section 343, third paragraph, of the Criminal Procedure Code), he refers to the Belize bank as the "offshore bank" and to G.'s<span style='mso-spacerun:yes'> </span>investments in Banco Elca as being very large sums, which implies his acceptance that this business was presented as if it were an investment in the national group and just another service of Banco Elca S.A. Here, the defendant mentions a possible investment at the meeting in Guatemala but hides that, by then, it had already occurred.

From this group of evidentiary elements - whose statements were clear, precise, withstood cross-examination correctly, and for which the court has no element to doubt their credibility, as their accounts correlate with each other and with other evidentiary elements, reasons for which they generally merit absolute credibility, except when expressly indicated otherwise, in which case the reason was explained - <b>it can be concluded</b>, then, with absolute certainty, <b>that the defendant C.<span style='mso-spacerun:yes'> </span>intended to create an offshore bank in Belize and offered it - even without having the license to raise funds there, nor being integrated in Costa Rica into the economic group - as part of the services that Banco Elca would provide, since his bank was one of the few, in the national market, that lacked that service, which reduced its competitiveness.</b> Although later, due to requirements from <st1:PersonName ProductID=\"la SUGEF\" w:st=\"on\">SUGEF</st1:PersonName> and complications in the process in Belize, Elca International Bank and Trust of Belice changed its name to Interbank and Trust Limited and was established that it would be an international bank unlinked from the Elca Economic Group, both due to the initial conception and the practical manner in which A.<span style='mso-spacerun:yes'> </span>handled the matter (expenses of that bank were attempted to be introduced into the financial statements of Banco Elca S.A., A.<span style='mso-spacerun:yes'> </span>offered it as a service of said bank, the same name and logo were used, there was confusion of personnel and tasks as the Costa Rican representatives were presented as if they were those of Belize, the Costa Rican facilities were used for functions of the supposed Bank of Belize to the point that G.<span style='mso-spacerun:yes'> </span>reports not having traveled to Belize on those dates, despite which he signs documents in the name of Elca International Bank and Trust of Belice, changes its name to Interbank and Trust Limited, etc.), said bank was always offered as another service of the Elca financial group and, specifically, of Banco Elca S.A. And it was so to such an extent that its officials were authorized or sent to go to Belize to provide computer or compliance officer services, the national facilities were used, it was publicly offered to clients and to other members of the Financial Group, and Banco Elca S.A. employees were even told that it was going to be a clone of the national bank and that those who were authorized to sign here could do so there"</span></i><span lang=ES-CR style='mso-ansi-language:ES-CR'> (folios 17228-17235). In conclusion, as stated, there is abundant evidence that the bank offshore service offered by A. to Mr. G.<span style='mso-spacerun:yes'> </span>(among other persons) was not operating at that time, but rather was part of a deception used to make them transfer money for alleged investments that never came to be such, but were diverted funds, as will be explained below. […].<o:p></o:p></span> <p class=MsoNormal><span lang=ES-CR style='mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal><b><span lang=ES-CR style='mso-ansi-language:ES-CR'>V.- </span></b><span lang=ES-CR style='mso-ansi-language:ES-CR'>In the fifth ground, the complainant argues that his defendant was a distinguished person of impeccable life until these events, and therefore he did not need to incur in this type of action to acquire capital. </span><i><span lang=ES-TRAD style='mso-ansi-language:ES-TRAD'>"When the disbursement for the three million dollars was made, the transfer was requested by Mr. R.<span style='mso-spacerun:yes'> </span>as directed to Transamerica Bank and Trust of Bahamas. From the beginning, the plaintiff party knew perfectly well that the money was not being transferred directly to Belize (sic)"</span></i><span lang=ES-CR style='mso-ansi-language:ES-CR'>. He indicates that the fact the money was not sent to Belize did not constitute an appropriation thereof, but rather an irregular deposit, the bank being able to use it at its discretion.<span style='mso-spacerun:yes'> </span>He says that the check for three million dollars was made out to Transamerica Bank and Trust, and that neither Banco Elca nor EIBT-Belize participated in that transfer. Then, he returns to the idea that the non-existence of that offshore agency in Belize at that time was not proven; that the money received was as an "irregular deposit"; that the agreement reached in the city of Guatemala and the lack of a request for the original certificates show the trust that G. still had in the defendant; that, at most, it was all an infraction of banking legislation; and, that A.'s willingness to put his assets up to respond proved that he had not acted with fraudulent intent. </span><u><span lang=ES-TRAD style='mso-ansi-language:ES-TRAD'>The claim is dismissed</span></u><span lang=ES-CR style='mso-ansi-language:ES-CR'>. It is not worth revisiting the topic of the non-existence of the offshore banking in Belize as a service of Banco Elca, which is already established from the first recital of this resolution, so the parties are referred to what is stated there. Now, regarding whether the injured company and its representatives knew that the money was not being destined for that agency, but rather to Transamerica Bank and Trust, where the accused had an account, this is an irrelevant matter, because the deposit can perfectly well be made in favor of<span style='mso-spacerun:yes'> </span>a banking entity different from the recipient of the funds, so that the former channelizes them. </span><i><span lang=ES-TRAD style='mso-ansi-language:ES-TRAD'>"…common practice at that time"</span></i><span lang=ES-CR style='mso-ansi-language:ES-CR'>, said R.<span style='mso-spacerun:yes'> </span>(folio 17057). But this in no way implies that A. was authorized to give them a destination different from the one agreed upon by the parties; namely, to invest them and not use them for other purposes, such as the personal obligations of the accused, as certified by witness G. Therefore, that this money was channeled through that account and not directly to Belize, which was impossible given that said offshore agency was not operating at that time, but rather there were facilities that simulated a proper operation (a matter already discarded here), does not mean that the offended party authorized a different destination for its money.<span style='mso-spacerun:yes'> </span>This, contrary to what the defense counsel holds without any basis, was not an "irregular deposit," or an act in which someone places a good or value in the care of another with more or less powers, for which a lawful placing into possession is required. In the present matter, the placing into possession was not lawful, as it was preceded by a deception, into which Mr. G.<span style='mso-spacerun:yes'> </span>had been induced and which has already been repeatedly described and is otiose to explain again. The truth is that, although these monies did not pass through EIBT-Belize, which was not feasible as it did not exist then, nor through Banco Elca, what is beyond dispute is that they did pass through A.'s hands, who disposed of them distancing himself from his commitment to the investing company whose owner had been deceived, for which purpose he used the appearance of solidity and respectability that the bank and his personal background conferred upon him. So, to maintain here, the same as the accused tried to do before the creditors, that this is not a matter of Banco Elca, is to ignore the circumstances in which the deception operated. In another sense, the fact that during 2002 the business of that injured party and Banco Elca were positive does not entail that they continued trusting in the latter when they reached an agreement in Guatemala, in which a new payment schedule was planned. Rather, as the representative of Mr. G. said, they did it to recover "the hat from a drowning man," but that by then they had the certainty of having been deceived, a thing they ratified when A. expressly told them he was not going to pay the owed money (folios 17058, 17059, and 17061). In that same meeting, Mr. G. said, </span><i><span lang=ES-TRAD style='mso-ansi-language:ES-TRAD'>"I was more convinced that A.<span style='mso-spacerun:yes'> </span>and F.<span style='mso-spacerun:yes'> </span>were thieves"</span></i><span lang=ES-CR style='mso-ansi-language:ES-CR'> (folio 17161). Thus, it is not true that by accepting that arrangement proposed in the city of Guatemala, the offended party condoned or ratified the actions of the accused, but rather was trying to recover his money, which was not possible because the alleged agreement was not honored by A. Even after that, according to what witness N said, </span><i><span lang=ES-TRAD style='mso-ansi-language:ES-TRAD'>"…we left convinced that criminal action had to be filed, but G.<span style='mso-spacerun:yes'> </span>wanted a financial settlement"</span></i><span lang=ES-CR style='mso-ansi-language:ES-CR'> (folio 17141), which discredits the defense counsel's thesis that he<span style='mso-spacerun:yes'> </span>used the criminal process to safeguard his funds in the face of Banco Elca's bankruptcy. In summary, the problem was not disrespect for Costa Rican or Belizean banking legislation or not, but rather that the economic harm had been caused to G.'s company using a deception or artifice on the part of A., thus constituting a crime of fraud. Faced with a situation like that, having left the supposed original certificates in F.'s custody was definitively an error, as was revealed later, but at that time the fraud was not foreseen, only until the breach of obligations occurred. Once the deception was discovered and efforts to recover the money were fruitless, the proper course was not to request the certificates, but to denounce the facts, as was indeed done. To conclude, it is not true that A.'s willingness to hand over some of his assets to answer for his debts shows that he did not have fraudulent intent. In the first place, because this would merely have an indemnifying value regarding the crime that had already been consummated some time ago. And, most importantly, because those assets did not cover the defrauded amount and were not reliable.</span> According to witness N, “…even through Mr. A. some properties were offered to us, they went to see them but they did not measure up in value or they were entangled” (folio 17141).” **II.-** In the second complaint, it is said that proven facts XV and XVI, which refer to the receipt of Mr. G.’s money (to be invested in the name of the corporation Night Glow) by the accused and its deposit in account N° 6096-1 of the Transamerica Bank Trust Co., belonging to a company controlled by A., the corporation Bosques de Ayarco BA, are supported solely by the testimony of H. This witness, says the appellant, was the subject of a criminal complaint by the offended company, but they settled for the sum of one hundred thousand dollars and his word to testify in this case. This should have been considered, as well as that the check is dated May 31, 2002, and the memorandum to dispose of the funds is dated June 6 of the following year, which would have led to dismissing his version that he had had to call A. to ask for instructions. It became clear, says the defender, that G. could disobey A.. Subsequently, there is a discussion about the interests that the offended parties may have had in a conviction of the defendant and the role that this witness and J. may have had in that plan. He adds that the bank was not a “kindergarten,” in which A. gave orders and the others blindly obeyed. The reproach is not admissible. The fact that G. had settled for a sum much smaller than that demanded by the offended company, or that he showed some level of reluctance at having been involved in these events, is not sufficient reason to deny credibility to his statement. National jurisprudence has repeatedly stated that the credibility of a piece of evidence lies in its own coherence and verisimilitude, as well as in its comparison with the others. Not in speculation about the motives someone has for saying one thing or another. In this case, there is no indication whatsoever that G. did not tell the truth, so in the absence of valid arguments, the defender speculates about his disposition towards A. and the benefit that others might have obtained from it. Thus, with those suspicions, there is no reason to call into question the statement of that declarant. This evidence, moreover, is consistent with the rest of the testimony given by the bank staff who appeared at the hearing, who unanimously stated that the person in charge at the bank was its owner and president, A.. He was the one who gave orders, and this is testified throughout the evidentiary synopsis, making a specific reference to it redundant, as it is a fact present in all the testimonies adduced. In such a way that, then, it is reasonable that although G. sometimes had criteria different from those of A., it was the latter who made the arrangements and decisions regarding relevant matters, such as precisely the deposit of three million dollars, received to invest in an offshore service that he had offered but that was not operating. Besides, as witness J. said: “I believe I could oppose C.’s orders, but if I did, being a salaried employee, he would fire me.” To conclude, it is not clear what the relevance is that the check received bore one date and the memorandum on the destination of the funds was another, because for whatever reason A. was not on site, and had to be located by telephone, receiving the pertinent instructions from him (folio 17089). In summary, it is not demonstrated that G. failed to tell the truth and, through that avenue, that proven facts XV and XVI are untenable. The ground is dismissed.” **III.-** […] As the lower court correctly stated, the principle of freedom of evidence allows relevant circumstances to be demonstrated by any lawfully obtained means. Therefore, as there was nothing unlawful in the fact that it was during the trial that (as it is a truly novel circumstance) the declarant F. produced those documents and made them available to the lower court and the parties (who were able to examine them and, if applicable, challenge them), these could be fully taken into account as evidence in the judgment. That those documents or an action by F. are being heard in another case does not prevent them from being weighed by the judges for the purpose of resolving the present one. Neither was it prevented by the lack of handwriting analysis evidence to verify that the signature appearing on the titles was A.’s, as there is no indication whatsoever to suppose that the signature appearing there is not that of the defendant. On the contrary, F.’s declaration is emphatic that the signatures are his and [the co-defendant’s]. (folio 17050), which is consistent with the tenacious and irresponsible involvement that A. [the co-accused] had with the purported offshore bank project in Belize, which has already been extensively cited. Even more, in the email whose incorporation the defender censures, A. [the declaring co-accused] himself acknowledges that that is his signature. To conclude, reference must be made to the litigant’s allegation regarding the violation of the accused’s privacy and the Ley de Registro, Secuestro y Examen de Documentos Privados, which is also not admissible, because as F. was the recipient of the electronic communication sent to him by A., he was the holder of his own privacy and could make it available to the lower court in that sense. That is, contrary to the reading the appellant makes, it is understood that when referring to whether there are multiple holders, the provision of Article 29 of that law refers to there being multiple subjects located at the same end of the communication; but not when there is one subject on each side, because in this case either of them may consent to its use. This is so much the case that if the provision referred to hypotheses, like the present one, where there is a sender and a receiver, it would be unnecessary for it to contemplate the special situation of there being “multiple holders,” since all communication, in order to be such, requires at least two subjects. That is, they would always be “multiple,” which would render the distinction sterile.

This demonstrates that, in the case of a recipient (as F was), their authorization was sufficient for the use of such email that A sent him..” VII. […] To put things in their proper perspective, it is worth recalling that the Use of Privileged Information (Uso de información privilegiada) is provided for in Article 245 of the Criminal Code (Código Penal), which literally states: “Anyone who, knowing privileged information relating to securities traded on the stock exchange, their issuers, or relating to the securities markets, acquires or disposes of, for themselves or through a third party, securities of said issuers with the aim of obtaining an undue benefit for themselves or for a third party, shall be punished with a prison sentence of three to eight years. For the purposes of this article, privileged information is considered to be that which by its nature may influence the prices of issued securities and which has not yet been made known to the public” (as added by Article 185, subsection b), of the Securities Market Regulatory Law (Ley Reguladora del Mercado de Valores) No. 7732 of December 17, 1997.). Consequently, as the defense attorney points out, it is vital to resolve the claim to determine whether A. [the accused], thanks to having control of privileged information about securities traded on the stock exchange, their issuers, or markets, disposed of or acquired securities from said issuers with the aim of obtaining an undue benefit for himself or for a third party. Again, to have at hand what was established in the judgment in this regard, it is appropriate to transcribe the part conducive to the fact under discussion. From folio 17328 to 17337, the lower court (a quo) stated: “It was alleged and proven that during the course of June two thousand four, Messrs. F, M, F., and M., all members of the H family, as investors of Banco Elca, requested the accused C for the early redemption of four certificates of investment, namely No. 200027349, No. 200028337, No. 200027929, and No. 200026056, whose total amount amounted to approximately six hundred fifty-two thousand seven hundred twenty-six dollars and fifty-six cents ($652,726.56) and which matured, the first two, on September thirteenth, two thousand four, the third on April seventh, two thousand five, and the last on October seventh, two thousand four, the accused denying such possibility under the pretext that it would be detrimental to cash flow, something that, as we have already indicated, he did not argue regarding the requests from his father and wife but that, in any case, denotes - once again - the knowledge he had of the bank's irregular situation and the consequences of those redemptions. Instead, A. offered to exchange said certificates of investment for a “loan” that, in their favor, Banco Elca S.A. had with Inversiones Kiona San Francisco S.A. for four hundred fifty thousand dollars and which had as a pledge (prendaria) guarantee thirty-five percent (35%) of the shares of Financorp Puesto de Bolsa and thirty-five percent (35%) of the shares of Financorp SAFI, owned by A., a loan unilaterally and irregularly approved by A. as will be addressed later (section X). On June twenty-eighth, two thousand four, the siblings F. and M. appeared at Banco Elca S.A. and handed over to C. the respective certificates of investment duly endorsed and signed some notes, that the aforementioned accused presented to them, in which Banco Elca S.A. was requested the early redemption of the titles that until then belonged to them. Immediately after, the accused ordered the early redemption of those titles and their corresponding interest and proceeded to cancel the loan that Inversiones Kiona San Francisco S.A. had with Banco Elca S.A.. Since Messrs. H. also had debts with said entity the accused, with the remaining money and at their request, decided to cancel the loan operations No. 000300012946, No. 000300012679, and No. 000300012429. The day after that operation, Banco Elca S.A. was intervened and, shortly thereafter, Financorp Puesto de Bolsa S.A. and Financorp Sociedad de Fondos de Inversión S.A. were intervened as well. As has been stated, there is no restriction from the SUGEF for banking entities to make early cancellations of certificates of investment, when so requested by the client. Similarly, it is up to each Bank or financial entity to regulate everything concerning that point, as Banco Elca S.A. indeed did when it approved the “Manual of Policies for the Issuance of Certificates of Investment” ("Manual de Políticas de Emisión de Certificados de Inversión") on April 15, 2002. As part of the requirements for those redemptions, it was established that the investor had to request the early cancellation of their respective certificate in writing and that they would be authorized and approved by the Presidency (Presidencia), Assistant General Management (Subgerencia General), or General Management (Gerencia General), with no limitation regarding the amount. They could also be consented to by the Financial and Operations Management (Gerencia Financiera y Operaciones), the Head of Customer Service (Jefatura de Servicio al Cliente), or Treasury (Tesorería), the Supervision of Service Platform (Supervisión de Plataforma de servicios), but these latter ones did have limits on the amounts. From the foregoing and always in accordance with the referenced “manual,” it is clear that when the early redemption of the certificates of investment in favor of the H. Brothers was requested in June two thousand four, the accused C, as Executive President and owner of Banco Elca S.A., did have the possibility of early redeeming the H family's certificates of investment, only that on this occasion he did not want to do so under the pretext that it was a very large sum of money and that it was impossible for the bank. How did the early redemption of the certificates of investment (approved by the accused on May 28, 2004) of his father, which reached a total sum of ninety-nine million, six hundred twenty-five thousand, one hundred ninety-six colones and fifty-six cents (99,625,196.56), not represent a problem for the bank? An aspect that we must not overlook is that, as stated when analyzing the early redemption of his relatives' certificates of investment (VII.1), the accused, at the cited time, had full knowledge of the degree of irregularity in which the Bank he directed found itself. We rescue here the official letters SUGEF-623-2004 of February 17, 2004 (folio 50 volume I), SUGEF 1082/200402588 of March 17, 2004 (folio 19 volume I), and SUGEF 1881-2004 of May 13, 2004 (folio 93 volume I), addressed to J, then Acting General Manager (Gerente General a.i.) of that entity, to the Board of Directors (Junta Directiva) of Banco Elca S.A., and to A., General Manager of the bank as of May 13, 2004, it being unthinkable that, because they were addressed to other persons, they were unknown to the owner and Executive President of that banking entity, whose experience in the financial area allowed him to foresee, in “the very near future,” the negative consequences of the irregularities found by the respective authorities of the Superintendency (Superintendencia). As already stated, the testimonies of M, J, J, E, M., W, M, M, R, P, W, among other witnesses, have been very clear in describing the atmosphere of tension and uncertainty that the Bank's employees experienced prior to the intervention, of how meetings were held in which the accused A. participated, with the sole intention of “calming them down,” of how, even before the intervention was decreed, there were already officials from the SUGEF at the Bank's facilities who were dedicated to investigating and detecting the anomalies. Recall, for example, what was indicated by M “...the atmosphere in the bank in the first quarter of 2004 was very tense, there were many changes, at the labor level there was uncertainty, it was said that the Bank needed to increase its equity, problems were spoken of... there was talk that capital was coming from Venezuela, of a possible purchase by a larger bank, we didn't know if we would stay or be fired, meetings were held and we were informed, Mr. C. participated actively, he informed us, he showed himself enthusiastic about that business...” and J. “in October 2003 the Sugef evaluates the portfolio, the SUGEF went too far and forced us to create an excessive provision of 477 million colones in addition to the one we already had, which was 570 million. The minimum required provision was 1,100 million colones. We followed the paths and there was no way to change that. That situation forced the Bank, if the provision was created, to come out with negative results and to fulfill the rescue plan and come out with normal risk, the loan portfolio had to rise like crazy. Mr. H. was not there. The situation was presented to Mr. C.” All of this to reaffirm, once again, that it is not true - as has been insisted - that the accused C. was unaware of the bad situation that Banco Elca was going through, and that he was unaware that the SUGEF was carrying out studies in order to detect the reason or reasons that precisely led, some time later, to its intervention being ordered. It is worth clarifying that the issue here is not whether the accused C. could or could not approve and sign the early redemption request that the H. brothers had requested (which was already said earlier that he could), but precisely the “use of information” that he used to benefit himself unduly because, although it is true that he did not approve at first the request made to him in favor of the investors themselves, he did agree to make a change, consisting of the H. brothers handing over to him the four certificates of investment they had in the bank for an approximate amount of six hundred fifty-two thousand seven hundred twenty-six dollars, with fifty-six cents ($652,726.56) and he, in their place, gave them a loan that Banco Elca S.A. on May 31, 2004 had granted to Inversiones Kiona S.A. for an amount of four hundred fifty thousand dollars ($450,000), whose guarantee consisted of 35% of the shares of Financorp Puesto de Bolsa S.A. and 35% of the shares of Financorp Sociedad Administradora de Fondos de Inversión, such that, once the proposal was accepted, the accused intelligently proceeds, now yes, to early cancel those four certificates of investment and with the money product of that redemption, not only cancels three loan operations that the H. family and its companies had with Banco Elca but also hurries to cancel the loan that he himself had irregularly granted to Inversiones Kiona S.A. (this point will be addressed later). It is precisely this maneuver that is questioned, since the objective he pursued by “acquiring” the H family's certificates of investment by that means is more than clear. Now, let us then proceed to the examination of the evidence related to the H. brothers that, ultimately, comes to corroborate what was stated in the preceding lines. Mr. F tells us that he and his family were clients of Banco Elca both personally and on behalf of their companies Industria Textil, Industria Ella S.A., Dulce Cuidado S.A., and Importaciones Herrero. They had, in said entity, the certificates of investment No. 200027349, No. 200028337, No. 200027929, and No. 200026056, which matured on December 13, September 13, 2004, April 07, 2005, and October 07, 2004, respectively. Likewise, their companies had acquired loans No. 000300012946, No. 000300012679, and No. 000300012429 in the same Banco Elca. He points out that for the first half of two thousand four, the investments they had were approximately three hundred sixty thousand dollars ($360,000) and one hundred ten million colones (110,000,000 colones). Noting that when rumors were heard that the bank was doing poorly (which, therefore, if they were public knowledge, its President C knew all the more reason), he decided to seek out C. so that they would redeem the certificates they had, even if they lost a percentage of the value, but he told them it was not possible because the sum was too high, telling him to rest easy because there were two or three purchase offers for the bank, one from a Mexican group and another from an American bank. The witness continues saying “I insist and what he told me was to exchange the investments for sound loans in other companies, he offers me a loan from Inversiones Kiona for four hundred fifty thousand dollars and it had as guarantee 66% of the shares of Financorp puesto de bolsa and Financorp, he gave me balance sheets from the previous month, I studied them, the balance sheets reflected very pleasant information.” Reasons why he finally decides to accept C.'s proposal with the understanding that the owner of Inversiones Kiona S.A., Mrs. E, would give him a first installment of one hundred twenty thousand dollars ($120,000), that the loan operations of his companies would be canceled, and, with the remaining balance, the exchange of his investments for the loan from Inversiones Kiona S.A. would be made. All of this happens on June 28, 2004. However, the next day the intervention of Banco Elca S.A. is ordered and subsequently the intervention is extended to other entities related to Corporación Elca S.A., such as Financorp Puesto de Bolsa and Financorp Puesto de Fondos de Inversión, thereby harming the interests of the H. family. The witness E. is of interest, who worked for Financorp from 1996 to August 2004, not only because she has a direct relationship with Mr. C.'s negotiations around the redemptions of the H family's certificates of investment but also because she clarifies points regarding the company Inversiones Kiona S.A. that are also important in the matter of the back-to-back (back to back) operations (to which we will return in section X). She states that on some occasion C. suggested that she buy 5% of Financorp puesto de bolsa, so Bancrecen granted her a loan through a company she bought called “Inversiones Kiona S.A.,” a loan that she is still paying. By 2004, the accused told her that the Venezuelans - in point X of the judgment, that fact is highlighted as part of the “rescue plan” ("plan de salvamento") of Banco Elca - were no longer interested in buying the Stock Brokerage Firm or the Investment Funds Firm and offered to sell her 50% of the shares of Financorp, telling her that the Bank could lend her around four hundred fifty thousand dollars ($450,000) and that a company of his, named Santa Damiana, would lend her the rest. The purchase was made in the name of Inversiones Kiona and the shares of Financorp Puesto de Bolsa and Puesto de Inversiones were given as guarantee, in total the obligation amounted to approximately nine hundred thousand dollars.

The debtor, then, was Inversiones Kiona which did not have a current account and had to open one at Banco Elca, and there the two loans were disbursed. Regarding the investment certificates of the H. family, it is important to highlight textually the following: “at some point, Mr. C. told me that he was meeting with the superintendent of banks and that he was objecting to the credit that had been given to Inversiones Kiona; I asked him why, if it was backed by shares, and he told me that they insisted that Inversiones Kiona cancel that credit because otherwise they would rate it poorly and provision (provisionar) the money, this gave me terrible anguish but I told him that I could not pay overnight, and he told me that there was a client of the bank in various matters who was willing to buy the credit from the bank, that he wanted to see Financorp's financial statements; I went to the bank, I met with that person F, I brought him the financial statements of both companies, he told me he would think about it, he was accompanied by his advisor, I don't know if financial or legal, and very close to that, Mr. C. told me that his client had agreed to sign the credit; I was still a debtor, to whom I owed was indifferent. I signed the credit with that person; the shares were released from the trust of Banco Elca and were assigned to Kiona's new creditor.” See clearly here why, for C., by June 28, 2004, it was already urgent to obtain money to cancel the credit granted —irregularly— to Mrs. E. (that is, to avoid a reclassification of the loan that implied an increase in provisions), and the easiest way to obtain it was by **acquiring** the investment certificates of the Herrero family since, otherwise, he had no money to do so. Regarding the credit granted on May 31, 2004, to the company Inversiones Kiona San Francisco S.A. —full legal name— whose legal representative and general unlimited power of attorney holder is E., the following observation must be made. As some witnesses have indicated, especially former employees of Banco Elca, the approval of a credit first had to pass through a credit committee (comité de crédito) that met every week and was composed of C., J., H., the credit manager, and the head of business management. Thus, J. tells us that the cases were prepared by the business executives and first passed through a pre-committee (pre comité) one day before the weekly meeting; on that day, everything processed by the executives was brought forward and the credit cover sheet (carátula de crédito) was circulated with the operative part (parte resolutiva), and the signatures of those present were stamped so that the credit would thus be approved; afterward, the formalization process (proceso de formalización) would follow. He notes that on some occasions, a credit application could circulate among the different approval levels without the credit committee being convened, but that this did not mean non-compliance with procedures; in fact, at the committee’s next session, the respective approval minutes had to be included. He points out that by 2004, there were credits that did not pass through the credit committee and were signed only by Mr. C. or Mr. H., and sometimes by both. Regarding the credit to Inversiones Kiona, he indicates that, among the irregular operations he encountered, was the formalization of a credit that the defendant C. processed directly in the name of a company owned by E., which was canceled fifteen or twenty-two days earlier so that it would not appear in the entanglements of the SUGEF, and this did not go to the credit committee. In a similar vein, witness M. speaks to us of the existence of a credit committee that studies the different credit applications and then must make a collegial decision; he mentions —as an important detail— the hierarchy of signatures that could be classified as A or B; in his personal case, he was a B signature and did not have the authority to approve a credit on his own; the defendant C., Mr. J., and Mr. H., according to his version, were class A signatures. In such a way that a credit could be approved with one A signature and one B signature, with two A signatures, or three A signatures according to the regulations, but, in fact, one A signature was enough “especially if it came from Mr. C. or Mr. H., it is very likely that it would be done; in a Bank, if the highest-ranking person orders it, one cannot oppose unless they fire you.” Witness H. also refers, in his extensive statement, to the credit committee and the signatures required for the approval of a credit; he stated, “The credits were submitted to the Credit Committee after analysis by the respective area; the committee met on Tuesdays, it was composed of certain bank officials with Z., F., the head of collections, the credit manager, account executives, E., A., and I; the credit documents were signed, approving or rejecting. Normally, there were type A and type B signatures, and I believe even type C, because the committee sometimes did not meet in full and two A signatures and one B were required, or three B and one A; right now (ahorita) I don't recall what the mix was, but there was a composition to approve credits. All members of the committee had participation to sign; mine was type A. It is not necessary for everyone to be together to approve a credit; sometimes they were approved as a circulated committee (comité circulado), going one by one to those who were present. Normally, it was the account executive who circulated it, or the credit manager for business loans. Once the signatures were collected, the file returned to the business or personal credit department, and then the formalization was coordinated.” Again, witness M. refers to the credit committee, indicating that it met every week and a study was conducted, discussing whether to approve or not. Regarding the members, he mentions C. and J.; in said committee, a cover sheet was made with all the details of the operation, but there were credits that, despite not meeting the requirements, were approved by simple order of the Presidency or the Management because they said that “they were important clients and that they would later collect the documents.” These were credits that did not meet the minimum requirements, that sometimes had no guarantee. He indicates that the credit category is assigned by the financial analyst, but in those credits, the category was already assigned on the cover sheet. Like the previous witnesses, he alludes to the circulated committee regarding credits that were urgent, or due to the type of client, they were processed with a lack of signatures, which would later be collected. We also have the statement of E., former director of the Bank, who indicated, “I did have knowledge of credits that were not approved as I indicated; it could be due to urgency because the committee met once a week; I believe it was called the 'circulated committee'; a credit cover sheet was requested that circulated among middle management of the bank. With only one signature, I don't believe one could speak of a circulated committee; I believe there was a regulation on the number of signatures a document had to bear.” He points out that there had to be a combination of signatures, for example, that of the credit manager, plus that of the head of credit, and Mr. C. For his part, Mr. Oscar Rodríguez, in his capacity as Superintendent of Financial Activities, in relation to the issue of the credit granted to Inversiones Kiona San Francisco S.A., stated that this operation denoted high risk because, according to the analysis of payment capacity, this company was left with an indebtedness of 80% and could only pay interest and not the principal (for it must be remembered that the loan given to E. so that she could carry out the acquisition was “while” she could locate investors to make the acquisition of those companies, as she stated). The superintendent added that the credit approval policy is particular to each entity, that the SUGEF cannot impose it, but that it does require that clear policies exist; that according to the bank's internal regulations, a combination of signatures was required for approval, and that, in the case of Banco Elca, this requirement was sometimes not met. The statements brought to bear clarify for us what the policy to follow for the approval of a credit was, policies that, in the case of Inversiones Kiona San Francisco S.A., were not followed, since said operation under No. 300012945 was approved only by the defendant. Remember that the same C. is the one who tells Mrs. E. that the Bank could lend her four hundred fifty thousand dollars ($450,000) and that a company of his —Santa Damiana— would lend her the remainder so that she could thus buy 70% of the shares of Financorp, an operation canceled on June 29, when he had already acquired the investment certificates of the H. family. What has been narrated so far allows us to outline two independent facts: on the one hand, the irregular approval of the credit in favor of Inversiones Kiona S.A. made by the defendant, a fact that —as will be indicated— is one more of those that make up the crime of fraudulent administration (administración fraudulenta) with which he is being charged, and, on the other, the early redemption (redención anticipada) of the investment certificates of the Herrero siblings, without any study on the impact this would have on the diminished finances of Banco Elca S.A. at that date, with the aim of, using that money thus acquired and knowing the information of scarce circulation about the seriousness of the finances of the entity he directed, being able to cancel that credit granted a few days earlier. The legal consequences of this, as well as of the other redemptions, will be analyzed immediately.” Thus, it is evident that the maneuver developed by A. was preceded by an anomalous action on his part, such as the granting of a credit to Mrs. E., to whom he had offered to sell 50% of the shares of Finacorp. When she told him she had no money, he offered to give her a loan of $450,000 from Banco Elca and the rest from a company of his called Santa Damiana. The credit, contrary to the bank's internal regulations, was granted individually by the accused to Inversiones Kiona of San Francisco, which remained as debtor and gave the shares of Financorp as collateral (garantía prendaria). After this, the accused needed to cancel the irregular credit that he had granted to this latter company, for which he used the certificates of the H. family. With this objective, when the holders of those certificates appeared to request their redemption, A. told them it was not possible because it would affect the cash flow (contra el flujo de caja) (contrary to what the appellant now argues). As an alternative, and knowing the precarious situation of the banking entity from the sources the judgment lists, he offered them, in exchange for the certificates, a credit that the Bank had for four hundred fifty thousand dollars with the company Inversiones Kiona San Francisco S.A., and which had as collateral (garantía prendaria) thirty-five percent (35%) of the shares of Financorp Puesto de Bolsa and thirty-five percent (35%) of the shares of Financorp SAFI, a deal to which they agreed. It was when the H. siblings appeared at the bank to hand over the endorsed investment certificates, that A. presented them the notes requesting the redemption, despite having previously told them it was not possible. Then, the accused himself ordered the redemption using said notes and canceled the aforementioned irregular credit with the proceeds. The next day, both the bank and the Financorp companies were intervened (intervenidas). In summary, up to this point, it is established that A. used privileged information (información privilegiada) he had about the situation of the stock market securities of Elca and Financorp, as well as their issuers. Now it remains to be resolved whether, in pursuit of an unjust benefit (beneficio injusto), that accused proceeded to acquire or dispose of securities of said issuers. The answer is affirmative. To cover up his anomalous actions, he had to cancel them before they came to light, especially when the intervention of Banco Elca was imminent. To do this, as the Court stated, “…the easiest way to obtain it was by **acquiring** the investment certificates of the Herrero family since, otherwise, he had no money to do so.” In other words, he acquired the investment certificates of the H. Siblings, the very ones he had previously refused to redeem, since that act was detrimental to the cash flow; but now, once he had obtained them, he proceeded to exchange them and cancel the loan that he himself had granted to Mrs. A.'s company so that she could buy shares of other companies of his (A.'s). In summary, there was indeed a use of privileged information (uso de información privilegiada) under the terms of the legislation referred to above. The ground is dismissed.

**VIII.-** In the following ground, it is reproached that when the use of privileged information is attributed, it is required that this be specific data, and not an assumption. In the case of the Herrero Zamora siblings, the information was not privileged, since they requested the redemption of the certificates when they heard a rumor about the poor situation of Banco Elca, so it was of a public nature. The defense counsel states that throughout the judgment, it is not stated what information is deemed privileged. In that sense, he transcribes some paragraphs of the resolution, from which he asserts it cannot be inferred that privileged information was present. What happened was that the Herrero Zamora siblings, faced with comments about the failure of Banco Elca's conversations with a group of Venezuelans to purchase it, preferred to exchange their certificates, as the alternative offered by the defendant to acquire a credit from a company that showed no financial problems was a fully legal business. **The ground is inadmissible.** To begin with, it is not true that the company Kiona of San Francisco had the solvent situation now suggested. Alvarado Moya knew that, in order to buy the shares of Financorp, it had had to obtain a loan for the entirety of its value, remaining with an indebtedness of 80%, and being able to pay only interest and not the principal. Furthermore, the fact that rumors or public comments were heard about the situation of Banco Elca does not at all imply that its internal situation was of public domain, as the defense counsel proposes. Outside the bank, there could have been a feeling or a comment that things were not going well. But from there to managing the internal situation, with its amounts, points of weakness, or eventual strengths, possible or closed exits, alternative liquidation scenarios (alternativas liquidatorias), and, above all (as it is pertinent to the case), irregularities to cover up and the imminence of an intervention that loomed in view of the repeated warnings from the SUGEF, these were all aspects within the knowledge of very few people, and mainly, of Alvarado Moya. Hence, having carried out the transactions already explained in the preceding consideration (considerando), using his knowledge of such vicissitudes, was indeed a use of privileged information (uso de información privilegiada).

347-348." "X.- In the tenth ground, it is argued that it is impossible to commit a fraudulent administration against oneself, since the owner of Banco Elca was the accused A., who exercised ownership over that entity through a series of companies also his own. To ratify this, the defense counsel transcribes some parts of the judgment in which this was held as true. Because of this situation, he indicates, those harmed by a fraudulent administration are the company's shareholders, which in this case do not exist, but rather it is the accused himself. Regarding these irregular deposits, in which a transfer of ownership occurs in favor of a bank, Costa Rican legislation is sparse. It must be taken into account, he adds, that in the case at hand, the Court considered the situation of the savers and investors who had their funds deposited in said entity. This money, however, is incorporated into the bank's assets. The complainant then makes a disquisition on the nature of regular and irregular deposits, which are characterized by the depositary's duty, not to preserve the same thing (as in the case of a regular deposit), but rather an equal amount of the same quality and kind. This creates a "dual availability," in which, on the one hand, the depositary becomes the owner of the asset and the depositor can, in turn, withdraw it. A consequence of this is that the loss of the assets is suffered by the depositary, who acts as their owner. Therefore, since A. was the owner of the bank in question, the assets received on deposit were his property and he could not fraudulently administer them to his own detriment. The reproach is unfounded. The appellant's argumentation starts from a fallacy or poor understanding of the concept he discusses; namely, that upon becoming the owner of the deposits, the depositary-administrator, or the person who owns the entity that receives them, can dispose of them at will, without any responsibility. To begin with, it must be clear that when it is said that in irregular deposits the depositary is obligated to deliver a similar amount and of the same quality of the received assets, this does not mean that he becomes the owner of them, but rather that he continues to be a depositary. What happens is that, due to the type of assets habitually received in such transactions, these cannot be preserved in their individuality, but are confused materially—NOT juridically (since they continue to belong to the depositor)—with the rest of the available patrimonial pool, whether this is destined for investment, loans, or simple hoarding. But, as is obvious, the same happens in every "regular deposit" in which the assets are fungible, because the fact that the depositary later returns other bills that are not the same ones previously delivered by the depositor does not mean that in that act he had become their owner. Therefore, the fact that he can dispose of the assets delivered to him as if he were the owner does not at all suppress the fact that he remains their depositary and the depositor their titleholder. That is to say, the assets remain the property of another. In the case under discussion, the matter is palpable. If the sophistry displayed in this ground were correct, it would imply that the assets or values received by [the indictee] A. through the Bank became his property, as the objector maintains. That is, they were his, which is very wrong, because it is notorious that this was not the intention of the depositors, who delivered them with the hope and the Bank's commitment to return them opportunely with a gain. That was not only known by the depositors, but was a matter of common sense; above all for the accused, who systematically acted to circumvent those commitments. In a previous resolution, to which both the cassation judgment and the appellant allude, this office stated: "Article 222 of the Criminal Code, which penalizes fraudulent administration, establishes a special own offense, since it delimits the possible circle of authors to that person who 'for any reason, having in his charge the management, administration, or custody of another's assets, harms their titleholder by altering the prices or conditions of contracts in his accounts, supposing operations or expenses or exaggerating those he might have made, hiding or retaining values or using them abusively or improperly.' It is a special own offense because it cannot be committed—as an author—by just any individual, but only by one who manages, administers, or takes care of another's assets and carries out one of the typified conducts. The foundation of this particular punishment is due to the fact that the active subject assumes tasks or functions over a patrimony that is partially or totally alien to him and, therefore, a series of legal duties weigh upon him that he infringes with his actions. The legislator also takes into account the existence of a bond that brings with it the trust placed in the agent by the passive subject, who expects loyalty and correctness in the management of his assets, rights, and patrimonial expectations. In summary, the defense attorneys N and R. allege that the accused did not exercise administration functions over the patrimony of the savers and investors, but rather committed themselves before them as debtors of an obligation; and that the funds, once deposited in the Banco Germano Centroamericano, became the exclusive patrimony of the latter and could be destined for various uses. On this subject, it is prudent to make some reflections. Banking activity, both in Costa Rica and in other nations, is strictly regulated in order to ensure the healthy economic development of the country and, among other reasons that are not of interest to delve into here, because it is carried out essentially with capital belonging to others and not with that belonging to the owners or shareholders of the bank: 'The referred activity is carried out with capital belonging to others or predominantly belonging to others. The origin of this capital comes basically from the public (depositors or savers) with which a financial intermediation is managed. Thus, funds are captured paying an interest rate to lend them at a higher rate and profit from the differences between the two. Its determining characteristic results from the alien nature of the lendable funds and the object of financial intermediation. That intermediation does not use or risk 'own' capital (as happens in other activities) but rather one of collective origin, definitively finite, quantifiable, unique in the country, and non-replaceable.' (PORCELLI, Luis A., "Entidades financieras privadas. Funcionalidad e historia de su regulación", in Crisis. Liquidación y quiebra de bancos. Responsabilidad, Ediciones Jurídicas Cuyo, Buenos Aires, 2001, p. 347-348). These distinctions must not be lost sight of, because otherwise it is easy to incur error when appreciating the nature of the functions that banking entities fulfill. They always work with the capital or the patrimony of others and that character of being alien property does not disappear at any moment nor can it be confused with the capital contributed by the partners or shareholders of the company (which, of course, can also be the object of fraudulent administration). In the present case, both the Germano International Bank and the Banco Germano Centroamericano captured resources from the public, through distinct means: deposits in savings or checking accounts; trust commissions, FOPEX and FODEIN funds, and monies that had to be paid to the Central Bank for the purchase of foreign currency or to the client's creditors abroad. Deposit contracts for savings and checking accounts have been classified by the doctrine within the concept of 'irregular deposit' because, contrary to what occurs in the regular one, the depositary is permitted to make use of the assets. Therefore, the notion that they constitute a loan agreement (mutuo) or a money lease is discarded (see DÍAZ RAMÍREZ, Enrique, Contratos bancarios, Temis, Bogotá, 1993, p. 92), which would indeed signify a displacement of patrimony. That the sums deposited in checking or savings accounts maintain their character of being alien property in our environment (that is: they belong to whoever deposited them) is evident from the provisions contained in articles 529, 612, 617, 630, and 631 of the Commercial Code and chapter V, Title III of the Organic Law of the National Banking System, No. 1644 of September 26, 1953, and its amendments; because although the bank is permitted certain discretionary use of the funds—however, with various restrictions—the depositor continues to be the owner of the monies, they can be embargoed or frozen by judicial order and constitute an active part of his patrimony and not an 'account receivable.' Hence, article 3 of the cited Law No. 1644 defines the function of banks in this matter as that of 'safeguarding and managing the bank deposits of the community'; a definition that, in reality, even if it were not in the law, would be extracted from the other rules that were previously cited and, in the end, only serves to describe a phenomenon." (see vote 231, of 8:45 a.m. on April 9, 2003). Thus, apart from the impact on public trust, national market finances, and other human repercussions, there was indeed a violation of a legal duty towards the depositors, who, even admitting the thesis of "dual availability," could not dispose of their assets or values; even if their profile were reduced to a mere credit right, which would have equally been frustrated. Indeed, also in this latter case, in which that right of restitution would be seen as diminished to a credit right, it cannot be overlooked that the realization of the same is subject to the sound administration of the assets or values delivered, so that even within this thesis, the administrator cannot behave with respect to them as if he were "their owner," because that would undermine the effectiveness of the credit; but, more importantly, the understanding of the parties is that the assets continue to be part of the depositor's patrimony. Hence, the aforementioned jurisprudence already issued by this Chamber in this regard, which the litigant attempts to argue does not apply in this matter, must be reiterated and considered applicable." "XV. [...] Finally, it must be underlined that it is true that the penalty has the purpose of rehabilitation, but the necessary margin for this is established by the legislator within the minimum and maximum sentencing limits; therefore, it cannot be said that, for example, in a very serious offense, in the case of an elderly person, because he has little time left to live, the sanction should even be less than the minimum. One must respect such margins and adjust the sanction within the parameters postulated by Article 71 of the Criminal Code, which mandates looking not only at the personal circumstances of the participant, such as his age, but also at the motives he had, the possibilities of adjusting his conduct in accordance with the Law, the damage generated to the number of victims, and his subsequent behavior after the events, areas in which, as has been extensively explained, [the accused] A. M.

is in a position of blameworthiness." --- "XIX.- As a third argument, it is said that the documents issued by the Liquidation Board (Junta Liquidatoria) of Banco Elca, regarding transactions held with Inversiones Tres Mil and Grupo Prisma Asem, both corporations (sociedades anónimas) and represented by [the accused] J. F. E., were excluded as useful evidence. Said evidentiary materials were important to demonstrate his participation in the investigated acts. However, those documents were excluded because they had not been requested by the interested party nor had the lifting of bank secrecy (secreto bancario) been judicially ordered in this regard. *“…Banco Elca S.A. is a bank declared Bankrupt (sic) by a judicial resolution, consequently subject to a bankruptcy process. The distinguished Tribunal does not analyze that, under this legal condition, Banco Elca S.A. lacks a Banking License…”* Immediately after, it provides some provisions of the Organic Law of the Central Bank (Ley Orgánica del Banco Central), none of which has a direct relationship with the point under discussion, except for 133, which establishes the duty of discretion and restricted handling of information. The reproach is not admissible. That last cited provision rather reinforces what was held by the lower court (a quo); namely, the obligation of those involved in banking transactions not to reveal information related to the interested parties. Thus, that generic duty does exist, called “bank secrecy,” so that such information does not transcend to persons outside the transaction, except by contrary judicial order. The fact that Banco Elca was declared bankrupt does not mean an exemption from that duty or bank secrecy, since what is protected is the information related to the persons involved in those transactions, who still have the right that such information not be disclosed, even when the Bank has been declared bankrupt. There is no doubt that such information reached that bank precisely as a result of its commercial activity, just as there is no doubt that, whether that entity is bankrupt or not, such clients have the right to have restricted access to their information protected. This being so, the Tribunal correctly proceeded by excluding the aforementioned documents, since these, not having been requested by the rightsholder nor judicially ordered, violated that duty of confidentiality and even the very provision adduced by the complainant.” --- "XX.- As the fourth and fifth grounds, defense counsel states that the documents from the Bahamas regarding the current account of the corporation Bosques de Ayarco at the Transamerica Bank and Trust, lacked the applicable authentications and were not transferred following the chain of custody. He points out that this limited his client’s defense, without it being valid to say that by having made use of said evidence, the defense had cured any defect it contained. The challenger is not correct. Certainly, the argument that, by having used them, the interested parties cured the defects of the evidence is not valid, since it would imply that, no matter how illegitimate it was, by being used by the counterparty, evidence acquires legitimacy. However, that is not the lower court’s reasoning. It was instead concerned with the repercussions of the defects in the processing and transfer of those evidentiary materials, concluding that neither in one case nor the other did they have any relevance. In this regard, it stated: *“Therefore, the defense would be right in its initial approach (but not regarding bank secrecy, since it is the regulations of the receiving state that must determine whether it exists or not, whether it is lifted or not, etc., without it being for the national judge to decide it, and those foreign provisions must be proven), but upon having made use of the evidence, it validated the formal errors and granted it validity, so this leads to the rejection of the request. As for the chain of custody of the evidence, no specific grievance is argued regarding it. It is recorded that the competent body of the Bahamas directly sent the documentation to the national Prosecutor's Office, and the evidence is easily reproducible upon a new request, so the argument again leads to worshipping formalities for their own sake. Notwithstanding the foregoing, it should be noted that even if the defense were given complete reason and all those documents were hypothetically suppressed, this would in no way affect the conclusions reached by this tribunal concerning, as will be indicated below, the criminal liability of C. A. for the crime of fraud (estafa) to the detriment of Night Glow S.A., since that evidence file No. 91 (and its respective translation on folios 14958 to 15087 of volume XXV) only allows one to infer the final destination of part of the funds received by C. A., without this being necessary because, having been proven that he received them and thereby obtained an unlawful (antijurídico) financial benefit (as will be analyzed in due course), it matters little what route the money followed, since that receipt alone, the deposit into personal accounts, the non-accreditation in favor of the offended entity in Grupo Elca accounts (as indicated by the intervenors in the documents on folios 9814 to 9816 of volume XIX and the Belizean authorities in the documents on folios 35 to 40 of the complaint file of Cori Consulting and Financial Services S.A., when qualifying as of doubtful legality the certificates issued with a date prior to the one authorized for that bank to operate and take deposits) and the non-return of the funds when required, determine that both the harm and the undue financial benefit existed, as requirements of the objective elements of the crime: ‘...the only lawful—not unlawful—destination that could be given to the assets was that imposed by the laws or the contracts entered into between the banks and their clients; any other destination that does not derive from any of those normative sources is intrinsically and by definition, undue. In other words, and by way of example, the final use that can be made, in accordance with the law, of saved monies is to return them to the saver (obligation arising from the contract and the law), or transfer them to a third party in exceptional cases, or retain them (e.g., by judicially decreed seizure or immobilization). Thus, the thesis that the whereabouts of the funds are unknown is completely useless to show or suggest any lawful destination (the very fact that their whereabouts are unknown already violates the right) and rather demonstrates, without any doubt, that an unjust financial harm was consummated as a counterpart to an undue economic benefit.’ Sala Tercera, Voto No. 231-2003 (highlighting is from the original). Furthermore, there is the independent source, which is the very statement of Hernán González, who related—before being shown that file—that the money was deposited in the account of Bosques de Ayarco, a company that belonged to C. A. and that was used to pay overdrafts of Alvarado himself, a statement supported by the reports of the OIJ that also pronounce on the matter before receiving the cited file. Ergo, even if the entirety of evidence file No. 91 and its respective translation were hypothetically suppressed (which does not have to happen given the convalidation of non-absolute formal defects and an independent source of that information), the conclusions about C. A.’s criminal liability for the crime of fraud to the detriment of Night Glow S.A. remain unscathed, as will be further explored in the respective section (Considerando V).”* (folios 17047-17049). Therefore, since the grievance effectively suffered from the handling given to that evidence was not specified, nor that it was adulterated or devalued as a result, the issue of non-observance of the chain of custody dissipates. In this regard, national jurisprudence has been reiterative in indicating that the mere allegation that the chain of custody was not observed is not sufficient for the ground to be admissible. It is necessary to demonstrate that some irregularity occurred and that it had repercussions on the quality of the evidence or its content, either deteriorating or adulterating it. Thus, even if there were some anomaly, it would have no procedural interest if, as in this matter, those consequences cannot be determined, being at most an administrative infraction, but without procedural interest for the resolution of the case. However, what is truly important is that, as the lower court said, hypothetically disregarding the cited documents, the incriminating conclusions against [C. A.] remain firm, since those pieces proved matters of little interest, such as the handling of the suspect’s bank accounts, while the relevant circumstances they demonstrated were also proven through multiple independent sources. The grounds are dismissed. [...]

XXII.- In the seventh ground of procedural error (forma), the complainant challenges the illegal incorporation of documentary evidence, consisting of the complaint from Cori Consulting and Financial, a corporation. This, says the co-defense counsel, refers to acts being tried in another venue and was not brought to the attention of the parties. Furthermore, the Tribunal did not assess the evidence on folios 17164 to 17185 but only cites it. The ground must again be rejected for lack of procedural interest. As already noted above, the mere enunciation of a fault or irregularity (if it exists) is not enough to deem that it constitutes a defect in the judgment or that it even leads to its nullity. It is a requirement for this that it be demonstrated that the fault in question (if it exists) has had repercussions on the judgment and that its relevant content cannot subsist with that defect. However, if, as in this matter, the complaint is that evidence from a complaint in another proceeding was taken into account (for which, indeed, there is no impediment, due to the principle of freedom of evidence already explained), or that it was not brought to the attention of the parties, or that this evidence is only cited in the ruling without being fully weighed, it is necessary to demonstrate the procedural grievance. That is, what was the specific injury alleged to have been caused. Therefore, it is necessary to explain why that evidence was important, how things would have changed without it or if the parties had had access to it, or what was the appreciable need for all the listed evidence to be explicitly assessed. But, the appellant merely reproaches that certain evidence was incorporated, without even mentioning its content and even less its importance. Likewise, he does not explain why he considers that any of the documents listed by the lower court within that body of evidence was not pondered or its significance. In fact, he complains that all the documents were not assessed, without explaining why it was important to do so for any one specifically or which of them was of interest and why.

For the rest, the Chamber must certify that the evidence weighed by the a quo is the important one, without it being noticeable that any relevant piece remained unexamined, something which, as stated, the appellant does not even attempt to demonstrate." **XXVII.-** For his part, the accused A. M. filed an appeal in cassation, alleging in the first place that the funds of Banco Elca were not alien to him, but rather his own, since as it concerns irregular deposits, he assumed the character of owner with respect to these, and therefore a fraudulent administration could not be configured. To support his allegation, he resorts to citing various authors and to saying that the precedent issued by the Chamber in this regard was different, because in that case there were no "irregular deposits" but rather "trust commissions." The objection is without merit. The issue has already been discussed and resolved in the tenth considering of this resolution, so the provisions set forth therein must be upheld. In any case, it is pertinent to explain to the complainant that the fact that Article 116 of the Organic Law of the Central Bank (Ley Orgánica del Banco Central) prescribes that financial intermediation (intermediación financiera) is carried out *"for the account and risk of the intermediary,"* in no way means that the latter becomes the owner of the funds entrusted to him. Even more so, this is evidenced by who is affected by the failure, which is not concentrated solely on the intermediary; a fact that proves that depositors maintain a preponderant role, which as stated is not simply a credit right, but rather they lose their assets. So much so that, when things are not managed well, the risk is not run only by the depositary (depositario), but by the depositors, and even in many cases (like the present one) the intermediary is not the one assuming that risk, but rather extends it to the savers and it is the latter (and not the former) who suffer the consequences of the events, without the intermediary assuming the financial responsibility incumbent upon him. Subsequently, the erroneous reading that the applicant makes of Article 528 (related to 524 and 529) of the Commercial Code must be corrected. When that rule indicates that: *"In deposits of fungible things the depositor may agree to be restituted things of the same kind and quality. In this case, without the obligations of the depositor ceasing, the depositary shall assume the character of owner for the purposes of the losses, damages, and impairments that the deposited things may suffer"* (the underline is supplied), it is obvious that it is referring to the vicissitudes or fickleness that may befall such goods or values, which, being in custody or administration for their use, must be guaranteed in their safety and solidity, so that in case of loss or deterioration, the loss is not faced by the depositor, but by the depositary. But, *contrario sensu*, for all other effects, the depositary does not acquire the character of owner, as the appellant mistakenly says, since he is only authorized for their use, but does not acquire ownership thereof. The objection is dismissed." **XXVIII.-** In the second ground, it is affirmed that the Tribunal erroneously applied the criminal type of fraudulent administration, given that there is a legal framework that is more specific to banking matters than this one. *“…the legislator's intention was to create a specific regulatory legal jurisdiction for this type of activities carried out by public and private banks, because these institutions simply differ in their very nature and in the ends pursued from any other conventional commercial activity…”* With reference to the jurisprudence of this Chamber on drug trafficking matters, it assures that the actions attributed to the accused are configurative of the criminal conduct described in Article 159 of the Organic Law of the Central Bank (Ley Orgánica del Banco Central), in relation to Article 241 of the Penal Code, and not a fraudulent administration. The former imposes a prison sentence for the directors, administrators, managers, or legal representatives of an entity subject to oversight by SUGEF who incur in the actions foreseen in Article 241 of the Penal Code, that is, who lend their concurrence or consent for acts contrary to the statutes or the law to be carried out, from which prejudice may derive for their represented entity or the public. In support of his petition, the defendant refers to some passages of the appealed judgment, in which it is stated that he improperly authorized credits or manipulated them in favor of his companies. He insists that, since the Organic Law of the Central Bank (Ley Orgánica del Banco Central) contains specific regulations for that type of entities and their officers, the liability of the latter will be covered by those norms and not others.

From another angle, the petitioner reproaches that Article 239 of the Criminal Code was not applied to him, instead of the crime of fraud (estafa), because the former punishes anyone who offers bonds, shares, or obligations to the public <i>“…concealing or hiding true facts or circumstances or affirming or implying false facts or circumstances…”</i>, thus describing the actions attributed to him as having been carried out to the detriment of the corporation Night Glow. <b><u>The objection is not admissible</u>.</b> There is a fundamental difference that the accused is not making: the criminal offenses contained in Articles 239 and 241 of the Criminal Code protect good faith in business. In this matter, we are not only facing an infringement of that legal interest, but also patrimonial harm, which those articles do not cover. Therefore, from the very beginning, it must be ruled out that we are dealing with norms that regulate the same acts. That is to say, it must be ruled out that we are facing a case of apparent concurrence of norms (concurso aparente de normas) by consumption of the wrongfulness (disvalor). But, to explain the matter more gradually, it is opportune to recapitulate here the basic notions of an apparent concurrence of norms. This, as is known, occurs when two or more precepts concur to regulate an action, but they exclude each other. In such cases, according to Article 23 of the Criminal Code, the special rule prevails over the general one, the rule that completely contains another prevails over the one contained, and the rule that the law has established as dominant prevails over the subordinate ones. Consequently, before entering into a discussion of how to resolve this matter, in order to determine if there is a special criminal offense or one that contains the wrongfulness (desvalor) of the other, or whose application has been conditioned on another not being applied, it must be defined for the first argument (that is, the authorization of improper acts versus fraudulent administration (administración fraudulenta)) whether both articles, besides constituting crimes in themselves, refer to the commission of <u>other</u> criminal acts in turn. The answer is negative, and this saves, once again, having to delve into the topic of apparent concurrence. This is unnecessary simply because the two cited norms allude to different situations. There are other characteristics that must be noted apart from the determining characteristics of the protected interests referred to above; that is to say, neither Article 239 nor Article 241 of the Criminal Code punishes patrimonial harm, something that Articles 216 and 222 of that same law do, which is why they turn out to be the ones that best describe the proven factual species. Thus, while fraudulent administration (administración fraudulenta) refers to an activity composed of criminal acts in themselves, the authorization of improper acts refers to acts that are not criminal; that is, the authorization of improper acts consists of giving one's consent or concurrence for acts contrary to the law or statutes to be carried out, but which are not criminal, since in such a case the criminal offense of Article 241 of the Criminal Code would not be applied, but rather the corresponding criminal figure. Or, to put it another way, the criminal offense of Article 241 is subsidiary; it is applied if those acts are not sanctioned by another specialized norm, with the result that this specialized norm is the one that qualifies as criminal the acts that compose the sanctioned activity, unlike mere “improper acts,” which is a generic qualification of unlawfulness to the detriment of good faith in business. That is to say, it also does not contemplate the possibility of patrimonial harm, but rather the mere performance of the improper acts, this being another circumstance that differentiates it from fraudulent administration (administración fraudulenta). This same thing <u>excludes the possibility of speaking or thinking about the possibility of a sort of transit crime (delito de pasaje) between one conduct and the other</u>, since as is known, the transit crime (delito de pasaje) is the progressive affectation of the same legal interest, which is excluded in this case, where the compromised legal interests are different: the patrimony in the crimes of defraudation and good faith in business against public trust, meaning they punish, in that order, different things such as harm to the patrimony and damage to public trust, respectively. Therefore, it is not true that said norms are in apparent concurrence with each other. Additionally, there is another difference, which consists in the fact that in Article 241 of the Criminal Code, the administrator or manager <i>“lends his concurrence or consent” (presta su concurso o consentimiento)</i>, that is, he condones the acts of others, he does not carry them out himself. In such cases (as well as in those where commission by omission is applicable due to being in the position of a guarantor), the applicable crime will be the corresponding one, but not the generic authorization of improper acts, which is provided for acts by other subjects. In the present matter, it is consequently obvious that the applicable criminal offense was indeed that of fraudulent administration (administración fraudulenta), both because the authorship of the actions was not by other subjects, but rather [the accused] A. M., who did not lend his concurrence or consent, but performed the irregular acts himself, and because those irregular acts were not simply “improper,” but criminal and which, apart from a harm to good faith in business, resulted in patrimonial harm for the victims. Regarding the actions committed to the detriment of Mr. Garber and his company Night Glow, it must be said that the appellant again confuses the taxonomy of both norms. The fraudulent offering of credit instruments does not cover the causation of patrimonial harm, but rather is a crime (like that provided for in Article 241) against public trust. So the mere offering of those bonds, shares, or obligations is enough for the crime to be considered as configured, even if no one had acquired them or had been affected by being induced into error. When that happens, the events transcend to the level of crimes against patrimony and are susceptible, not only to being prosecuted as a fraudulent offering of credit instruments (something which, by the way, was overlooked for debate in this case), but also as fraud (estafa), since besides an injury to good faith in business, it is also an injury to the patrimony of the aggrieved parties, this wrongfulness (desvalor) being neither described nor contained in the cited Article 239. Hence, just as with the topic of the authorization of improper acts, we are not, as the appellant says, facing an apparent concurrence of crimes, but rather two norms that do not exclude each other nor protect the same interests, since one can make a fraudulent offering and thus affect good faith in business, without generating patrimonial harm, or vice versa, which corroborates that they are not norms that refer to the same factual species, nor does one contain the wrongfulness (desvalor) of the other.” and that is the same date that appears on the certificates (See folios 2588, 2590, 2592 and 2594 of the main volume <span class=SpellE>VII</span>) which were also withdrawn in San José, Costa Rica, which, added to the fact that at that time there was no license to take deposits and that the local bank handled documentation with the letterhead of the Belize bank, allows for the inference that this issuance never took place in Belize, even if stated as such, but rather was done in Costa Rica.”</span></i><span lang=ES-CR style='font-family:\"Times New Roman\";mso-ansi-language:ES-CR; vertical-align:baseline'><span style='mso-spacerun:yes'> </span>For all of the foregoing, the ground [sic] must be declared with merit.<o:p></o:p></span></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:right 81.0pt'><span lang=ES-CR style='font-family:\"Times New Roman\"; mso-ansi-language:ES-CR;vertical-align:baseline'><span style='mso-spacerun:yes'> </span><span class=SpellE><b>XXXVII</b></span><b>.- </b>As second and third grounds, the appellants underscore that it is not true that the negotiation with the corporation Night <span class=SpellE>Glow</span> was on behalf of Banco <span class=SpellE>Elca</span> with A. acting as an intermediary </span><i><span lang=ES-TRAD style='font-family:\"Times New Roman\"; mso-ansi-language:ES-TRAD;vertical-align:baseline'>“…since the evidentiary elements presented during the adversarial process only reflect that the aforementioned financial transaction was conducted personally with (sic) C. and J…”</span></i><span lang=ES-CR style='font-family:\"Times New Roman\";mso-ansi-language: ES-CR;vertical-align:baseline'><span style='mso-spacerun:yes'> </span>Resorting to a compilation of some traces of the testimonial evidence, the <span class=SpellE>appellants</span> reiterate that the Belize agency existed and that this money was voluntarily delivered for the purpose of being deposited there, and not in Banco <span class=SpellE>Elca</span> of Costa Rica, which in any case it never reached, since it was deposited by A. into an account of his own. Moreover, that, G.<span style='mso-spacerun:yes'> </span><span class=GramE>being a</span> successful businessman and his representative an attorney experienced in the matter, confused both financial entities. That is why, in accordance with those testimonies and documentary evidence insufficiently weighed by the court a quo, it was possible to demonstrate that this debt was not the responsibility of Banco <span class=SpellE>Elca</span>, to the point that it was rejected as part of its contractual obligations. </span><u><span lang=ES-TRAD style='font-family:\"Times New Roman\"; mso-ansi-language:ES-TRAD;vertical-align:baseline'>The challengers are incorrect</span></u><span lang=ES-CR style='font-family:\"Times New Roman\"; mso-ansi-language:ES-CR;vertical-align:baseline'>, as they continue to confuse the typology of the events. Banco <span class=SpellE>Elca</span> is liable for the civil consequences of the fraud committed to the detriment of Night <span class=SpellE>Glow</span> corporation, not because it had any contractual obligation with it, a matter which is amply discarded and which, the appellants unnecessarily insist upon, as it is not the subject of discussion. Liability arises from a criminal act, from a crime and the tort (extracontractuales) consequences it entailed. It is, therefore, irrelevant whether the meetings held at the facilities of Banco <span class=SpellE>Elca</span> in San José contractually bound it or not; or whether those funds were intended to be deposited in it or not; or whether <span class=SpellE>Gaber</span> and his representatives were people susceptible to confusion. The crux of the matter does not lie in what commitments were acquired by Banco <span class=SpellE>Elca</span> and accepted by the counterparty, which is what the representatives of the civil defendant lengthily try to debate, but rather the tort (extracontractual) liability that falls to it by virtue of the criminal offenses committed by its representative, who, availing himself of the means and credibility that his status as president of Banco <span class=SpellE>Elca</span> and the apparent solidity thereof provided, of which he even offered offshore (offshhore) services</span><span class=SpellE><i><span lang=ES-TRAD style='font-family:\"Times New Roman\";mso-ansi-language:ES-TRAD;vertical-align: baseline'>offshhore</span></i></span><span lang=ES-CR style='font-family:\"Times New Roman\"; mso-ansi-language:ES-CR;vertical-align:baseline'>, was able to deceive G.<span style='mso-spacerun:yes'> </span><span class=GramE>and</span> make him deliver three million dollars. Regarding this subject, the judgment is not served by cutting, for the sake of conciseness, the argumentation, considerably documented and logical, made by the court a quo from folio 17290 onwards. </span><i><span lang=ES-TRAD style='font-family:\"Times New Roman\";mso-ansi-language:ES-TRAD; vertical-align:baseline'>“What remains to be determined, then, is: are there grounds to civilly hold the insolvency estate (quiebra) of Banco <span class=SpellE>Elca</span> S.A. liable? That is, it must be analyzed if <st1:PersonName ProductID=\"la Quiebra\" w:st=\"on\">the Insolvency Estate (la Quiebra)</st1:PersonName> of Banco <span class=SpellE>Elca</span> S.A. possesses passive standing to be sued or if, on the contrary and as the defenses of the civil defendants have alleged, there is an incomplete necessary passive joinder of parties (litis consorcio pasivo necesario) either because <span class=SpellE><b>Elca</b></span><b> <span class=SpellE>International</span> <span class=SpellE>Bank</span> <span class=SpellE>and</span> <span class=SpellE>Trust</span> <span class=SpellE>Limited</span></b> or Corporación <span class=SpellE>Elca</span> Internacional S.A., which was the regulating entity of the group, was not brought in as a defendant. A parenthesis must be opened to indicate that the civil defense of C. as a natural person lacks standing to refer to this issue as it only affects <st1:PersonName ProductID=\"la Quiebra\" tabIndex=\"0\" w:st=\"on\">the Insolvency Estate (la Quiebra)</st1:PersonName> of Banco <span class=SpellE>Elca</span> which is not represented by C. and there is a patrimonial and legal division between natural and legal persons. That is, regardless of what is decided on this topic, C. as a natural person is always liable for the civil consequences of his crime. Despite what has been said, the issue will be addressed jointly. The unanimous criterion of the tribunal is that <st1:PersonName ProductID=\"la Quiebra\" w:st=\"on\">the Insolvency Estate (la Quiebra)</st1:PersonName> of Banco <span class=SpellE>Elca</span> does have standing to be sued passively and that there is no pending necessary passive joinder of parties to be completed that prevents issuing a ruling. This latter point is because, although <st1:PersonName ProductID=\"la Corporaci?n Elca\" tabIndex=\"0\" w:st=\"on\">Corporación <span class=SpellE>Elca</span></st1:PersonName> was the regulating entity of the economic group, its liability is subsidiary (Article 142, second paragraph of <st1:PersonName ProductID=\"la Ley Org&#65505;nica\" w:st=\"on\">the Organic Law (la Ley Orgánica)</st1:PersonName> of the Central Bank) and, in any case, C. openly stated -including to the aggrieved entity- that the Belize offshore (offshore) (which he indicated was already in operation or omitted to say lacked a license to take deposits) was a branch of Banco <span class=SpellE>Elca</span> S.A. and not of <st1:PersonName ProductID=\"la Corporaci?n\" tabIndex=\"0\" w:st=\"on\">the Corporation</st1:PersonName>, although indirectly it did belong to it. If it was a branch of the bank, Banco <span class=SpellE>Elca</span> S.A. (today its insolvency estate (quiebra)) is liable for it when the President of said bank mentioned it as another service of the bank, an aspect on which -precisely- the scheme (ardid) consisted. In this sense, reference is made to what was already stated in section VI.1<span class=GramE>.(</span><span class=SpellE>ii</span>) (<span class=SpellE>iii</span>) of this judgment. On the other hand, <span class=SpellE>Elca</span> <span class=SpellE>International</span> <span class=SpellE>Bank</span> <span class=SpellE>and</span> <span class=SpellE>Trust</span> <span class=SpellE>Limited</span> was the scheme (ardid) deployed by the accused A. If he had offered documents from a non-existent entity, that non-existent entity could not be sued. In this case, he offered to invest in an existing entity but without permission to take deposits at that time and issued certificates in its name but without registering the funds in it, meaning it is he and the bank of which the offshore (offshore) was going to be a service who must answer. Finally, if there were any liability on the part of <span class=SpellE>Elca</span> <span class=SpellE>International</span> <span class=SpellE>Bank</span> <span class=SpellE>and</span> <span class=SpellE>Trust</span> <span class=SpellE>Limited</span> (whose name changed to <span class=SpellE>Interbank</span> <span class=SpellE>and</span> <span class=SpellE>Trust</span> <span class=SpellE>Limited</span>), it would be joint and several (solidaria) and in that case, the creditor may choose against whom to direct its claim (Article 640 of the Civil Code: "The creditor may claim the debt against all the joint and several (solidarios) debtors simultaneously or against only one of them"), without prejudice to the co-debtor's right to join the other co-debtors, a power that was not exercised in this case by the civil defendants. The passive standing of <st1:PersonName ProductID=\"la Quiebra\" tabIndex=\"0\" w:st=\"on\">the Insolvency Estate (la Quiebra)</st1:PersonName> of Banco <span class=SpellE>Elca</span> comes from two sources. First, because the law itself establishes strict liability (responsabilidad objetiva) -which requires no assessment whatsoever- and is based on a kind of protection for third parties who saw the administrator acting in representation of the company and, although it may seem contradictory, in a form of "objectivized sanction" towards the company for the fault in eligendo and in vigilando (culpa in eligiendo e in vigilando) with which it acted in choosing said agent. This is established in Article 106, subsections 2 and 3 of the Penal Code when stating that jointly and severally (solidariamente) liable with the perpetrators of the punishable act for the payment of damages and losses are "legal persons whose managers, administrators, or legal representatives are found responsible for the punishable acts" as well as "persons (...) legal entities owning establishments of any nature, in which a punishable act was committed by their administrators, dependents, and other workers in their service." In the same vein, Article 137 of the 1941 Penal Code (rules on civil liability in force pursuant to Law Nº 4981) stipulates that jointly and severally liable with the perpetrator are companies "for the scams (estafas), defraudations, and forgeries of any kind that, in the exercise of their powers and on the occasion of and in the performance of the service of those entities, are committed by their directors, managers, administrators, agents, or dependents." It has been duly demonstrated, as extensively set forth when evaluating the evidence, that C. was the President, representative, and de facto administrator (with hierarchical authority superior to that of the general manager) of Banco <span class=SpellE>Elca</span> S.A. and that, acting in functions proper to his position, he offered the aggrieved entity the offshore (offshore) services of that bank in Belize -which bore the name of <span class=SpellE>Elca</span> <span class=SpellE>International</span> <span class=SpellE>Bank</span> <span class=SpellE>and</span> <span class=SpellE>Trust</span> <span class=SpellE>Limited</span>- thereby making it seem that it was the same entity, as normally functioned in other banking institutions in the country. C. has been found to be the responsible perpetrator of the crime of fraud (estafa), an offense that was consummated at the facilities of Banco <span class=SpellE>Elca</span> in Costa Rica when R.<span style='mso-spacerun:yes'> </span><span class=GramE>showed up</span> to deliver the check for three million dollars and, since A.<span style='mso-spacerun:yes'> </span><span class=GramE>was not</span> there at that time, it was received by H.<span style='mso-spacerun:yes'> </span><span class=GramE>who</span>, after a telephone conversation with A.<span style='mso-spacerun:yes'> </span><span class=GramE>who</span> gave him the instructions to follow, made a note -on <span class=SpellE>letterhead</span> paper of <span class=SpellE>Elca</span> <span class=SpellE>International</span> <span class=SpellE>Bank</span> <span class=SpellE>and</span> <span class=SpellE>Trust</span> <span class=SpellE>Limited</span>- giving instructions on how to proceed with said money. Therefore, the joint and several civil liability (responsabilidad civil solidaria) of Banco <span class=SpellE>Elca</span> (today of its Insolvency Estate (Quiebra) represented by <st1:PersonName ProductID=\"la Junta Liquidadora\" tabIndex=\"0\" w:st=\"on\">the Liquidation Board (la Junta Liquidadora)</st1:PersonName>, which is the successor of that legal person) is imposed. Both doctrine and jurisprudence have already pronounced in this sense: ¬“…since 1962, our jurisprudence has established that legal persons incur direct liability for the acts of their organs, both directive and executive, which means that the fault of the organ is the fault of the legal person and, therefore, once the fault of the organ is established, and that it caused the damage in the exercise or on the occasion of its functions, the legal person is automatically liable, and nothing releases it from liability (...) Therefore, if the official of a legal person is criminally liable for a crime committed in the exercise of his functions, the legal person has no other way to exonerate itself.” TAMAYO JARAMILLO, J. Indemnización de los perjuicios en el proceso penal. Biblioteca Jurídica <span class=SpellE>Diké</span>, Medellín, 1st edition, 1993, pp. 137-138. ¬"...by mandate of Law, the civil liability of legal persons is exhaustively determined, whose managers, administrators, or legal representatives are found responsible for punishable acts. Said norm does not establish any exception, such that it is not possible to disapply it even in the event that the civilly liable legal person is also the offended party by the criminal act committed by its representatives; to act otherwise would be contrary to Law and, therefore, what is requested by the challenger must be dismissed." <span style='letter-spacing:-.15pt'>Third Chamber (Sala Tercera) of <st1:PersonName ProductID=\"LA CORTE SUPREMA\" tabIndex=\"0\" w:st=\"on\">the Supreme Court of Justice (la Corte Suprema de Justicia)</st1:PersonName>, voto</span> No.<b><span style='letter-spacing:-.15pt'> </span></b><span style='letter-spacing:-.15pt'>2005-1114 at 15:45 hrs. of September 29, 2005. </span>But, on the other hand, even if there were no legal provision to that effect, said liability would still be established because if the analysis of the circumstantial evidence (prueba indiciaria) is carried out, it is determined that there is no possibility of understanding that passive standing is held only (although it may also be jointly and severally liable, in which case the creditor reserves the possibility of filing an action against whomever it deems pertinent, without having done so in this case and without that implying any procedural sanction against it: Articles 637, 640, and 646 of the Civil Code) by <span class=SpellE>Elca</span> <span class=SpellE>International</span> <span class=SpellE>Bank</span> <span class=SpellE>and</span> <span class=SpellE>Trust</span> <span class=SpellE>Limited</span>" as the defense of A.<span style='mso-spacerun:yes'> </span><span class=GramE>and</span> of <st1:PersonName ProductID=\"la Junta Liquidadora.\" w:st=\"on\">the Liquidation Board (la Junta Liquidadora)</st1:PersonName> alleges. This is so because A.<span style='mso-spacerun:yes'> </span>created an artificial, fictitious situation to make it seem that it was just another operation of Banco <span class=SpellE>Elca</span> S.A., in which case, in application of the theory of piercing the corporate veil (corrimiento del velo) and of the appearance of the legal situation, Banco <span class=SpellE>Elca</span> S.A. -which was the true creator of the entire situation through its president- is the one that must answer (now through the representatives of <st1:PersonName ProductID=\"la Junta Liquidadora\" tabIndex=\"0\" w:st=\"on\">the Liquidation Board (la Junta Liquidadora)</st1:PersonName> of its decreed Insolvency Estate (Quiebra), as provided by national legislation) since: “In large companies -very particularly corporations (sociedades anónimas) and other stock companies- the origin and the nature of the exploitation, its orientation, and the radical transformations it may undergo emanate from a small group of people and sometimes from only one, who have full dominion and control of the company. Upon the collapse of the entity, a profound deterioration, or a maneuver aimed at defrauding other shareholders, poorly rendered accounts will hardly appear. Fraudulent acts take other forms, of much greater scale, which at times have been carried out within a more or less formal framework and fit within the governing powers of their leaders. But they abusively exceed what is permitted and, in violation of the duties of good administration, profit from the criminal acts and harm the rest of the shareholders or abusively compel them (…) The most common and skillful are the emptying of companies and the veil (velo), under which a fraudulent reality is covered” <span class=SpellE>MILLAN</span>, Alberto. Los delitos de administración fraudulenta y desbaratamiento de derechos acordados. Buenos Aires, 1976, pp. 39-40. Circumstantial evidence (prueba indiciaria) constitutes the common form of proving certain types of crimes, particularly when “hiding” realities through legal shells is involved. Therefore, in crimes such as fraud (estafa), simulation fraud, and fraudulent administration, said evidence is extremely important, which, according to the system of freedom of evidence (libertad probatoria) that governs us (Article 182 of the Code of Criminal Procedure (Código Procesal Penal)), is fully admissible (RODRÍGUEZ <span class=SpellE>RESCIA</span>, Marcos and <span class=SpellE>ESPINOZA</span> OBANDO, <span class=SpellE>Marianella</span>. Fraude de simulación, <span class=SpellE>IJSA</span>; San José, 1st edition, 1997; CASTILLO, Francisco. “La prueba indiciaria”. En: Revista Judicial Nº 1, San José, 1979; <span class=SpellE>GIANTURCO</span>, <span class=SpellE>Vico</span>. Los indicios en el proceso penal. Translation by Julio Romero Soto, Bogotá, 1974; ROCHA <span class=SpellE>DEGREEF</span>, Hugo. Presunciones e indicios en juicio penal, <span class=SpellE>Ediar</span> S.A., 2nd edition, Buenos Aires, 1997; <span class=SpellE>JINESTA</span> LOBO, Ernesto. La simulación en el derecho privado. Escuela Judicial, San José; 1990). Among the indicia (indicios) to determine the reality of what happened -which prevails over the form or appearance given to it- which are not <span class=SpellE>numerus</span> <span class=SpellE>clausus</span> and following the exposition of the last author, the following applicable to this cause appear: <b>*Causa <span class=SpellE>simulandi</span></b>, the motive or interest one has to present as real something that is not: C. required new investments to clean up his Bank and to be able to carry out other operations in which he was immersed. By May 2002, the bank had experienced states of financial irregularity decreed by <st1:PersonName ProductID=\"la SUGEF\" w:st=\"on\"><span class=SpellE>SUGEF</span></st1:PersonName>, A.<span style='mso-spacerun:yes'> </span><span class=GramE>was</span> immersed in new financial projects (founder of Hospital Cima San José, among others), the national banking market maintained strong competition with powerful international banks arriving in the country, forcing alliances, mergers, or absorption of small banks to occur, Banco <span class=SpellE>Elca</span> had no offshore (offshore) branch at the time, which other banks maintained, diminishing its competitiveness. For this reason, A. -who personally used to attend to important clients of the institution- in order that the various operations that M.<span style='mso-spacerun:yes'> </span><span class=GramE>was</span> willing to carry out did not leave his institution, he offered the services of an offshore (offshore) branch in Belize that A.<span style='mso-spacerun:yes'> </span><span class=GramE>knew</span> was barely in process and was not yet authorized to take deposits, since <span class=SpellE>F. and</span> G.<span style='mso-spacerun:yes'> </span><span class=GramE>told him so</span> on the occasion of that specific negotiation. A. presented that as another service of Banco <span class=SpellE>Elca</span> S.A. to the point that the money was received at its facilities, where instructions were given to the supposed Belize bank on <span class=SpellE>letterhead</span> paper of the Belize bank, which bore the same name and the same external signs as the national one, all of which was discussed before high managerial levels of the Costa Rican bank, and delivering in Costa Rica, through the personnel of Banco <span class=SpellE>Elca</span> S.A. and at its facilities, the investment certificates and interest coupons of the Belize bank, later requesting their custody. <b>*<span class=SpellE>Neccesitas</span>:</b> The accused A.: needed this simulated business to occur, since he derived benefits from it and obtained money to meet his obligations. Note that he managed to obtain three million dollars (plus some immediate or momentary liquidity flow for using the bank's platform for international transfers) that ended up in the account of Bosques de <span class=SpellE>Ayarco</span> <span class=SpellE>BA</span> S.A., which he controlled, an account that A.<span style='mso-spacerun:yes'> </span><span class=GramE>used</span> to pay overdrafts as indicated by H. <b>*<span class=SpellE>Affectio</span>:</b> the existence of familial, friendly, dependency, business, or other kinds of relationships are important for the <span class=SpellE>simulator (simulante)</span>. Since he could not carry out the scheme (ardid) by himself, A. availed himself of the ample prestige and respect that all his employees rendered to him and <o:p></o:p></span></i></p> <p class=MsoNormal style='margin-top:5.1pt;margin-right:0cm;margin-bottom:5.1pt; margin-left:0cm;text-align:justify;line-height:200%;mso-pagination:widow-orphan; tab-stops:right 81.0pt'><i><span lang=ES-TRAD style='font-family:\"Times New Roman\"; mso-ansi-language:ES-TRAD;vertical-align:baseline'>all the personnel of the institution who saw him, because he behaved that way, as the general hierarchical superior, above the general manager and not as a "passive" board chairman. It is important to remember that there was no witness who referred to C. in a <span class=SpellE>disqualifying</span> manner. There was one who indicated that he had him "covered in medals" although later they fell off one by one (Varela). All the witnesses highlighted his people skills, his kind and respectful treatment, and the trust he inspired, as he even said a prayer in the mornings before starting the workday (in this sense E). The trust, respect, and even unconditional admiration held for him was the norm. A.<span style='mso-spacerun:yes'> </span><span class=GramE>availed</span> himself of this so that people he had brought to the bank (H.<span style='mso-spacerun:yes'> </span><span class=GramE>and</span> J.) <span class=GramE>would keep silent</span> about many aspects they knew were not correct at that time and would trust that A.<span style='mso-spacerun:yes'> </span><span class=GramE>would not</span> carry out any act with an illicit result even if the means were not the regulated ones. For this reason, in the meeting with G.<span style='mso-spacerun:yes'> </span><span class=GramE>and</span> his associates, A.<span style='mso-spacerun:yes'> </span>called people from the bank with important hierarchical positions and before them spoke of the offshore (offshore) branch as another service of Banco <span class=SpellE>Elca</span> S.A., all of them knowing that it was not yet in operation but only in process, which<span style='mso-spacerun:yes'> </span>gave an air of verisimilitude, before his trusted personnel, to A.'s dealings.<span style='mso-spacerun:yes'> </span><span class=GramE>especially</span> when he claimed to be solvent and to commit his assets and prestige for the final satisfaction of the client. A.<span style='mso-spacerun:yes'> </span>put someone of his complete trust at the head of the Belize operation, as was J., a person until then of recognized banking prestige, who had opened offshore (offshore) branches for other banks (del Comercio, for example) and who held an honorary position in the country where the branch would open, so there was no reason whatsoever to doubt the lawfulness of what A.<span style='mso-spacerun:yes'> </span><span class=GramE>presented</span> at that time as real. <b>*<span class=SpellE>Notitia</span> or knowledge of the simulation by the accomplice:</b> <span class=GramE>How</span> could J.<span style='mso-spacerun:yes'> </span><span class=GramE>not</span> know that the offshore (offshore) bank in Belize did not exist or did not have the authorizations to take deposits if he himself was aware of the procedures? <span class=GramE>How</span> could he not have noticed, when signing the investment certificate, that situation? Evidently he did know of said situation and he himself said so. Bolívar even reported that <span class=SpellE>F. once</span> had him sign other certificates from that bank and told him that the one in Belize was a clone of the one in Costa Rica and that those authorized to sign at the local level were also authorized abroad, which <span class=SpellE>F. himself</span> knew was not the case. When <span class=SpellE>F. and</span> A.<span style='mso-spacerun:yes'> </span><span class=GramE>signed</span> the investment certificates of <span class=SpellE>Elca</span> <span class=SpellE>International</span> <span class=SpellE>Bank</span> <span class=SpellE>and</span> <span class=SpellE>Trust</span> <span class=SpellE>Limited</span> in favor of Night <span class=SpellE>Glow</span> S.A., they knew the bank was not operating but that their client trusted in what they made seem real, both in the exercise of their positions as President and advisor of Banco <span class=SpellE>Elca</span> S.A. and acting at the facilities of this bank. <b>*<span class=SpellE>Habitus</span>, <span class=SpellE>character</span>:</b> any antisocial or unlawful conduct is important and must be taken into account. The witnesses indicated that Night <span class=SpellE>Glow</span> S.A.

it was not the only entity to which the offshore bank service of Banco Elca S.A. was offered; rather, A. offered it left and right and "his mouth could not be shut," as indicated by H., who stated that he signed certificates of that bank in favor of J., and there is also admitted documentary evidence referring to similar certificates in favor of Cori Consulting and Financial Services S.A., facts that were not the subject of this proceeding because a conciliation agreement was reached. It was stated in section VI.1 (ii) (iii) that A. offered the offshore branch without reservation as just another bank service. This reveals a pattern of behavior by the accused A. and the lack of fault of the victim, since all of them—recognized national and foreign businesspeople with extensive financial, banking, and investment experience—believed A. because of the way he presented the business (at the facilities of Banco Elca, with its managerial staff, on letterhead of the Belize entity, alluding to an entity with the same name as the Bank and the same external signs, and taking advantage of the trust placed in him due to the prestige he had until then). It will also be determined in this judgment that these were not the only irregular, immoral, or illicit acts committed by A., but that, some time later, he created fictitious loans, managed to circumvent the normal procedure for credit applications by approving or extending them on his own, in favor of companies related to himself, authorized early redemptions of certificates in favor of his family but not of third parties, and, knowing the serious situation the bank was undergoing that would warrant the imminent decree of a degree of irregularity by SUGEF, he created fictitious operations to "window-dress" the institution's accounting reports, etc. That is, there is simultaneous and subsequent behavior by the accused A. that denotes disrespect for rules and procedures and his eagerness to present as real forms that were not. *Subfortuna: the lack of the necessary economic means to continue carrying out banking activity on the part of the simulator is evidenced, in this case in which, although on a personal level and in front of any average person he maintained a solvent economic position, the institution he represented did not have one in the banking environment. That is, it lacked the resources required to remain in the financial system with a bank open and operating regularly. Let us remember that even though the certificates in question were issued in May 2002 and SUGEF notified him some time later that it had to significantly increase reserves due to various irregularities in loans that had been observed (many of which are intimately and directly related to A.'s personal management, as will be analyzed in other considerandos), several witnesses said that the bank had already been at a significant degree of irregularity, that F. lent A. his accounts to obtain resources that he could no longer obtain on his own, etc. (thus the statements of H, C, etc.), so that obtaining resources was pressing for A., and doing so by pretending that they would be invested in an offshore branch of that bank abroad (which, in itself, was a common practice among other banks in the country at the time) was the appropriate way to obtain them. *Movimiento bancario: property-related legal transactions always entail a banking movement, especially given the magnitude of certain operations. In this case, it is proven that the sum of three million dollars was debited from the account of Montañas Mágicas del Sur (also owned by M)—along with other unclaimed amounts—and with the cashier's check that was created—in the name of the bank where A. held the account of his company Bosques de Ayarco S.A., because A. had requested it as part of the procedure to deposit the money into the account in Belize—it was handed over to the person authorized for this by C., none other than the general manager of Banco Elca. The money was then deposited into the account of Bosques de Ayarco, owned by C., as recorded on folios 53-54 of the complaint file of Cori Consulting and Financial Services, and from there it went to various accounts related to C., as indicated by H. There is no record that A. ever transferred that sum to any international bank in the name of the offended entity (and not his own), so the mention contained in the investment certificates referring to Elca International Bank and Trust Limited is just that, letters on a piece of paper, without that money being received by the bank that was later authorized to operate but with a name change (folios 35 a 40 of the complaint file of Cori Consulting and Financial Services S.A.), all of this without the victim's knowledge, and it was sold to the Venezuelans, as A. himself stated and as recorded in the email at folio 7209 of volume XV main, where he tries to disassociate himself from the obligation based on the cited legal formalities, forgetting these elements that stood out from the appearances of the transaction originally agreed upon. *Retentio possessionis: maintaining possession of the thing or failure to execute the simulated contract: this is evidenced when the accused A. and F. kept the original investment certificates under their custody (the latter materially and the former by controlling the situation) and did not hand them over to R. despite his constant requests. This possession of the certificates was also achieved thanks to the trust and credibility that the aforementioned persons inspired and the fact that, since F. was consul in Belize and responsible for traveling constantly, he would eventually have more facilities to negotiate said negotiable instruments if required (as the victim was told). However, the retention of the certificates demonstrates the need for the victims not to have documents that would prove the falsity of everything that was being simulated. On the other hand, the retention of possession of everything that occurred at the Belize Bank is evidenced because even the expenses of that institution were attempted to be introduced into the financial statements of Banco Elca S.A. (see folio 10496 of volume XIX main), which determines the control of one over the other. *Tempus: it has already been said that there is suspicion due to the timing of these contracts, since by May 2002, Banco Elca S.A. required significant resources to meet the various obligations it had, including maintaining a facade of normalcy before national supervisory institutions. A. himself indicated that there had been a significant "run" of investors following events involving an alleged investor (M) who engaged in picketing in front of the bank, and H. stated that this caused so much damage to Banco Elca S.A. that C. began receiving money from "mechudos," that is, casino investors, with cash from Colombia, etc. *Insidia: maneuvers by the simulator that exceed the levels of social tolerance by making the victim participate in the simulation: how can we forget that A. summoned the private prosecutor to meetings in Guatemala to make him participate in supposed forms of payment and meetings to capitalize his investments? *Provisio: these are precautions by the simulator to achieve the end and prevent betrayal by the accomplice (Varela saw how A., shortly before the intervention, took documentation from the bank; later, documents related to this operation appeared at his father's house. Álvaro Castro indicated that A. called him to tell him that he was siding with him, or with F., and G., and, in that case, "papelitos" (little papers) that compromised him would appear, with which he intended to secure his loyalty and silence. *Incuria: carelessness in accidental elements of the simulated transaction. Despite what has been stated up to now, it is clear that A. overlooked details that, nevertheless, were useful to him in causing the victim to fall into the deception. He uses the same name for the offshore branch, "Elca Internacional," as the controlling corporation of Banco Elca S.A. (Corporación Elca Internacional S.A.), and the external signs are the same (if one observes the logo on the original certificates compared to contemporaneous documents, it is clearly perceived that it is the same way of writing the name, the same colors, etc.), and he holds the meetings within the very heart of Banco Elca S.A., summoning the managerial officers of the institution, who thus become witnesses to the proven irregularity. A. also overlooked, in this attempt to separate both institutions, the fact that a special account had been opened in the name of J. in the financial statements of Banco Elca to cover the expenses of the supposed Belize bank (folio 10496 of volume XIX) and that, to put it into operation, at a date much later than the victim's certificates, he had to take some of the local staff there, with expenses covered by Banco Elca S.A., as indicated by the compliance officer. *Inertia: the accomplice shows a passive attitude. Note that, according to G.'s statement in the debate, J., in C.'s absence, was willing to hand over various documents to them. He always assented that the money would be delivered, that they were making arrangements, and he gave excuses for the delay, but the one who ended up giving the final word (negotiating to convert them into shareholders of the bank in Belize and saying, plainly and simply, that he was not going to pay) was C. *Dominancia: the dominant role of the principal, who in this case is A., whom everyone obeys and pays homage to, believing everything he says and trusting everything he does. *Indicios endoprocesales: manifested by the parsimony in explanations of core issues and eloquence on trivial or marginal topics; the obstructive and omissive conduct aimed at hindering the evidentiary work, manifested by the refusal to hand over the original documents originally deployed by F., or in the formulation of a defense strategy, material and technical, aimed at blaming everyone—except A.—for everything, and in presentations with extensive analysis of small details that leave the central issue aside. All of these indicators, assessed together, allow the conclusion that what happened was not that an international bank intervened as a third party in a national negotiation, as has been attempted to be shown, but rather that Banco Elca S.A., through its President and legal representative, simulated the existence under normal conditions of an institution to attract funds in its name that, in reality, never entered said entity, since it was not only proven that the money entered the account of Bosques de Ayarco S.A., owned or controlled by C., but that, at that time, said institution did not have a license from Belize to attract funds. Consequently, the one who created the appearance (Banco Elca S.A. through its officers) is the one who must answer, and not necessarily a third party whose name was used. The same would apply if the entity used had not existed at all (and not, as in this case, where it was in process but could not operate as far as attracting funds is concerned), or if, existing legally and licitly, its name is used, without its consent, for the business of others. It is those who answer, and not those whose name was improperly used. All of this, of course, without prejudice to any joint and several liability that may exist (since at the time of the facts, the officers of the Belize entity were A. and F.), which as such does not prevent Banco Elca S.A.—now its Bankruptcy (Quiebra) and its Liquidation Board (Junta Liquidadora)—from being held liable in this case, at the free choice of the civil plaintiff, as occurs in joint and several obligations (article 640 of the Civil Code)…. By virtue of all that has been set forth, if—as has been taken as proven—C. had the intention, when issuing certificates of Elca International Bank and Trust Limited of Belize, of presenting that institution as an offshore branch of Banco Elca S.A., an entity in which he acted as its representative, in order to later use the asset and legal separation of the companies to evade liability for the money received, it is clear that he abused the right and, therefore, one must not look at the legal form (two different companies) but at the appearance displayed before the victims (C. acting on behalf of Banco Elca S.A. and committing in the name of that institution, for which it is liable), and, therefore, the court—having the obligation to prevent a crime from having significant legal consequences—cannot deem that Banco Elca S.A. (now its bankruptcy and Liquidation Board) lacks civil liability. It is by virtue of the foregoing that the exceptions of lack of passive standing (falta de legitimación pasiva), lack of active standing (falta de legitimación activa), lack of right (falta de derecho), and the generic sine actione agit (see folio 13853) must be rejected, and the civil claim for damages (demanda civil resarcitoria) filed by Night Glow S.A. must be upheld, not only against C. acting in a personal capacity (as the cause of the crime) but also against Banco Elca S.A., now its Bankruptcy (Quiebra) represented by the Liquidation Board. Night Glow S.A. has the right to have its money returned, as it was delivered in good faith and involved in a crime already declared. Even if the money may have come from another entity (Montañas Mágicas del Sur S.A.), there is freedom to dispose of assets, and if the representative of Montañas Mágicas S.A. invests it in the name of Night Glow S.A., and the latter does not recover the investment, it is the latter who has active standing to sue, without prejudice to the liability that the representative may have for that transfer if any illicit act occurred, which is not the proper avenue to declare here, nor do the civil defendants have an interest in it. For the purposes of active standing, it does not matter who is the sole owner of the shares of such entities, since its general judicial attorney (apoderado general judicial) always acted in the proceedings in accordance with the documents at folio 952 of volume III main and 118-119 of the civil claim file (among others), and the special attorneys (apoderados especiales) of the latter (see folio 121 of the civil claim file). A. and the Bankruptcy (Quiebra) of Banco Elca S.A. (as the succession of the bankrupt Banco Elca S.A.) have standing to be sued civilly, being one the cause of the crime and the other the company in which it was committed, by its attorney, administrator, and legal representative, and giving the appearance that it was binding that institution and acting within the proper scope of its functions. There is a current interest because the damages (daños y perjuicios) have not been compensated, they have already come into legal existence, they are not expectations of rights, and they are not time-barred, because the period for that runs from their recognition in a judgment (article 138 of the rules in force of the 1941 Penal Code on civil liability, according to law No. 4891 and article 868 of the Civil Code)." In summary, as this Chamber already stated above, concurring with the balanced and documented exposition of the a quo, since A. acted in use of his capacity as president of Banco Elca and the credentials that this held, the Bank assumed the condition of a jointly and severally liable party for the illicit acts in which the former incurred. That being so, even though the transaction for three million dollars was supposedly carried out with the agency located in Belize, that is not an obstacle for, in extracontractual terms, the Bankruptcy (Quiebra) of Banco Elca to have to assume that liability.

Both grounds are dismissed.”</span></p> </div> </body> </html> On the other hand, the legal concept under which the compensation for interest is requested is irrelevant, as it falls to the Judges to apply the applicable regulations, in accordance with the principle of *iura novit curia*, since it is a matter of Law. What is relevant is that the party demanded such compensation and it was grantable, even if the normative basis was different from the one cited by the plaintiff.

**XLI.-** In the substantive ground, the issue is restated that the interest was not calculated by the plaintiff according to the rate applicable for each of the periods elapsed, so that by doing so on its own account, the Tribunal substituted her will and granted more than was requested. The issue was already discussed and resolved in the preceding recital, so the matter must rest on what was established there.” **“XLII.-** In the sole ground composing his appeal by joinder, the representative of the complainant and civil plaintiff claims the incorrect application of substantive regulations. He argues that, when calculating his fees, the court of first instance (a quo) applied the fee schedule No. 20307-J, but that his and his client’s intervention in this matter occurred as of August 22, 2005, when the new tariff, No. 32493-J, was already in effect (effective since its publication in La Gaceta No. 150 of August 5, 2005). He indicates that, although that decree contains a transitional provision stipulating that already-initiated proceedings are governed by the repealed schedule, the truth is that, for his client, the proceeding began in August 2005, when she intervened in this matter. The ground is not admissible. […] Regarding the argument presented by Licentiate R, it must be noted that a proceeding does not begin for a party when they intervene, but rather when the process of the case has started. Thus, although the intervention may be late, the truth is that this cannot lead to maintaining that the ‘process started’ only then, which would make the ‘start’ of each proceeding relative to each of the participants, with the consequence that, as in this matter, professional fees would be different according to the date on which participation in the process began. On the contrary, it must be clear that the start of the process is one thing, and the start of the intervention in it is another, and they are not the same. The former can develop and exist even if a specific party does not intervene, or when their intervention is delayed; the latter begins with the proceeding or, as happens here, finds it already initiated. Consequently, it is not admissible to argue, as the appellant says, that because his client appeared in the process on August 22, 2005, the applicable fee schedule is the one published a few days earlier, because this schedule contains a transitional provision stipulating that for matters already begun, the previous schedule would continue to apply. Therefore, since this case is among those that had begun before the enactment of the professional tariff schedule of 2005, it must continue to be governed by the one that preceded it, that is, decree 20307-J. In conclusion, the point is correctly resolved by the Tribunal, and the appeal must be declared without merit.” **Whereas:** **1.-** By judgment No. 165-2008, handed down at fourteen hundred hours on April thirtieth, two thousand eight, the Trial Court of the Second Judicial Circuit of San José, resolved: **"THEREFORE:** In accordance with the provisions of articles 24, 39 and 41 of the Political Constitution; Inter-American Convention on Private International Law (Bustamante Code); Vienna Convention on Consular Relations; article 26 of the Law on the registration, seizure, examination of private documents and intervention of communications; article 1 of the Organic Law of the Ministry of Foreign Affairs and Worship; articles 66 and 67 of the Organic Law of the Foreign Service; articles 4, 12, 41, 47 and 66 of the Organic Law of the Consular Service; numerals 14, 32 final paragraph and 34 subsection k of the Organic Law of Notaries; numerals 1, 18 to 23, 30, 31, 45, 47, 50, 51, 71 to 77, 103, 106, 109, 216, 222, 239, 240, 241, 245 of the Penal Code; articles 115 to 117, 120, 141-142, 147, 156-157 subsection b, 159 and 175 of the Organic Law of the Central Bank of Costa Rica; current rules of the 1941 Penal Code on civil liability according to Law No. 4981; articles 1, 9, 30 subsection a), 31, 175 to 179, 182, 184, 209, 238 to 243, 253-254, 257-258, 265 to 270, 311 subsection d), 324 to 372 and 376 to 379 of the Code of Criminal Procedure; articles 20 to 22, 868, 871, 1045 and 1163 of the Civil Code; numerals 2 and 35 of the Law for the Promotion and Effective Defense of the Consumer No. 7472; articles 419, 497, 529, 670, 984 of the Commercial Code; articles 17, 40, 41 and 44 of the decree on lawyer fees No. 20307-J and transitory I of the schedule of fees for professional legal and notarial services No. 32493-J, by unanimity in all operative provisions:

**(i)** The objection raised by the defense of C. regarding the lack of formal requirements of the complaint and the lack of active standing of the complainant is denied; **(ii)** The defective procedural activity raised by the defense of C. against the legality of the evidence contained in file No. 91 is denied; **(iii)** The argument of the defense of J. regarding the illegitimacy of the documents from folios 15846 to 15909 of the main volume XXVI concerning account statements of Inversiones 3000 S.A. and Grupo Prisma Asem S.A. provided by the defense of C. is granted, and, therefore, said documents and everything derived from them (e.g., witness references) are suppressed; **(iv) DEFINITIVE DISMISSAL DUE TO EXTINCTION OF CRIMINAL ACTION** by death is decreed, in favor of **E.** for the crimes of **COMPLICITY IN FRAUDULENT ADMINISTRATION** and **USE OF PRIVILEGED INFORMATION** which, to the detriment of **BANCO ELCA S.A.** , have been attributed to him, resolving with no special award of costs in the proceedings; **(v)** By virtue of the principle *in dubio pro reo*, **J.** is **ACQUITTED** of all penalty and responsibility for the crime of **FRAUDULENT ADMINISTRATION** which, to the detriment of **BANCO ELCA S.A.** , has been attributed to him, resolving with no special award of procedural and personal costs for the prosecutorial accusation.

**(vi)** **C.** is declared **GUILTY PERPETRATOR** of the crimes of **AGGRAVATED MAJOR FRAUD** to the detriment of **NIGHT GLOW S.A.** represented by M. (cc. R.) and J; **FRAUDULENT ADMINISTRATION OF A MAJOR AMOUNT** and **USE OF PRIVILEGED INFORMATION** both to the detriment of **BANCO ELCA S.A.** and of the crime of **SUPPLYING FALSE BANKING INFORMATION** to the detriment of the **NATIONAL BANKING SYSTEM**, all in material concurrence and, in such condition, the following penalties are imposed upon him: for the first crime **EIGHT YEARS OF IMPRISONMENT**; for the second crime **EIGHT YEARS OF IMPRISONMENT**; for the third crime **THREE YEARS OF IMPRISONMENT** and for the fourth crime **FOUR YEARS OF IMPRISONMENT**, for a total of **TWENTY-THREE YEARS OF IMPRISONMENT** which he must effectively serve in the respective penitentiary center, as determined by the regulations in force at that time and subject to the deduction of the pretrial detention he may have served; **(vii)** The exceptions of lack of active and passive standing, lack of cause, pendency of suit (litis pendencia), incomplete necessary passive joinder of parties (litis consorcio pasivo necesario) and the generic *sine actione agit*, all filed by the Liquidation Board of the Bankruptcy of Banco Elca and by the civil defense of C. against the civil compensation claim established against them by Night Glow S.A., are declared without merit, and the exception of lack of right is partially granted; **(viii)** The civil compensation claim filed by ***NIGHT GLOW** S.A*. against **C.** and the **BANKRUPTCY OF BANCO ELCA** is declared **PARTIALLY WITH MERIT**, and they are jointly and severally ordered to pay to the former, the following items and amounts: **a)-** for material damage, the sum of **three million dollars of the United States of America**; **b)-** for loss of profit consisting of interest at the civil legal rate (certificates of deposit in dollars at six months’ term of Banco Nacional) on the aforementioned sum from September seventeenth, two thousand three, to July fifth, two thousand five, and from November ninth, two thousand five, to April twenty-second, two thousand eight, equivalent to **five hundred seventy-nine thousand two hundred fourteen dollars of the United States of America and fifty-three cents**, for a total of three million five hundred seventy-nine thousand two hundred fourteen dollars of the United States of America and fifty-three cents, a sum from which must be subtracted the two hundred and fifty thousand dollars paid through conciliations of other co-defendants for these same facts, resulting in an outstanding and pending payment amount of **three million three hundred twenty-nine thousand two hundred fourteen dollars of the United States of America and fifty-three cents,** which is the amount on which costs will be calculated; **c)-** the procedural and personal costs of the civil compensation claim, whose professional fees are settled at the sum of **ninety-eight million two hundred ninety-six thousand six hundred fifty colones and seventeen céntimos.** **(ix)** The exception of prescription of interest raised by the Liquidation Board of the Bankruptcy of Banco Elca S.A. and by the civil defense of C. is declared without merit.

**(x)** The procedural and personal costs of the complaint and of the criminal process are borne by the convicted defendant as far as he is concerned, setting the professional fees for the complaint at the sum of thirty thousand colones.

**(xi)** The precautionary measures decreed against J. are hereby lifted, and, therefore, it is ordered to immediately notify the General Directorate of Migration and Foreign Nationals of the **lifting** of the prohibition on leaving the country; his passport shall be returned personally to Mr. J. and the mortgage encumbering the property in the Partido de San José, registration number […], must be cancelled.

**(xii)** The precautionary measures decreed against the accused **C** are **REVOKED** and, given the risk of flight in view of the high penalty imposed and the economic power and international contacts held by the defendant, which is evidenced by the number of bank accounts and corporations (sociedades anónimas) that have been proven he managed as sole shareholder without appearing directly as their representative, all of which would enable him to have the resources to leave the country illegally and remain abroad in order to avoid facing the consequences of his acts established and indicated here with a high prison sentence, **PRETRIAL DETENTION** is decreed for a term of **EIGHT MONTHS** to run from this date and until **DECEMBER THIRTIETH, TWO THOUSAND EIGHT** or, failing which, from the execution of the arrest. Therefore, once the accused is detained, the prohibition on leaving the country that weighs against him shall be lifted through a communication to be sent to the General Directorate of Migration and Foreign Nationals, his passport shall be delivered to the person authorized by him through an authenticated document, the deposited money shall be returned to the guarantor, and the mortgage encumbering the property in the Partido de San José, registration number […] in the name of Cerros de Carrillo S.A., shall be lifted.

**(xiii)** Once this judgment becomes final, the three investment certificates in Elca International Bank and Trust and their respective interest coupons (No. 100-1008-02 and coupons 100-1008-02-1, 100-1008-02-2, 100-1008-02-3; No. 100-1009-02 and coupons 100-1009-02-1, 100-1009-02-2, 100-1009-02-3 and 100-1009-02-4 and No. 100-1010-02 and coupons 100-1010-02-1, 100-1010-02-2, 100-1010-02-3, 100-1010-02-4 and 100-1010-02-5) shall be delivered to the legal representative of Night Glow S.A., making the express warning **on the back of each of the cited documents** that the obligation represented therein has been declared chargeable to the joint and several assets of the Bankruptcy of Banco Elca S.A. and C. through this judgment.

**(xiv)** Once this judgment becomes final, the relevant communications shall be issued to the Judicial Registry, the Sentence Enforcement Court and the National Institute of Criminology, and the sentence settlement order shall be issued. By reading, **NOTIFY**. **Ileana Méndez Sandí, Edwin Salinas Durán, Rosaura Chinchilla Calderón.** ” (sic).

**2.-** Against the preceding ruling, attorney Gonzalo Elizondo Breddy, in his capacity as co-defense counsel for the defendant C, filed an appeal for cassation (recurso de casación). Attorney Juan Carlos Sabravatti Montoya, in his capacity as defense counsel for the defendant C, filed an appeal for cassation. The accused C filed an appeal for cassation. Attorneys Manuel Eduardo Campos García and Leonardo Antonio Madrigal Moraga, in their capacity as special judicial representatives of the Civil Respondent Bankruptcy of Banco Elca S.A., filed appeals for cassation.

**3.-** A public oral hearing was held at eight hours forty minutes on January twentieth, two thousand nine.

**3.-** Once the respective deliberation was conducted, this Chamber considered the issues raised in the appeal.

**4.-** The pertinent legal requirements have been observed in the proceedings; and, **Considering:** **I.-** The defense counsel for C. filed an appeal for cassation against judgment No. 165, handed down by the Criminal Court of the Second Judicial Circuit of San José, at 14:00 hours on April 30, 2008, in which that defendant was declared the guilty perpetrator of a crime of aggravated major fraud, one of fraudulent administration and use of privileged information, to the detriment of Banco Elca, corporation; and a supply of false banking information, illegal financial intermediation and authorization of improper acts, to the detriment of the national banking system. As a result, a total of twenty-three years of imprisonment was imposed upon him. In the first ground of the appeal, the defense counsel alleges the lack of authenticity of an essential piece of evidence, which was a letter addressed to Mr. Arnoldo André Tinoco, signed by the Head of the Finance Department of the Supervision Sector of the Bank of Belize, Mrs. N. This document, says the complainant, was not presented to the Ministry of Foreign Affairs of that country, but to its embassy in Guatemala. There, what was done was to certify that it was a faithful copy of its original, but not to verify what position the signatory holds or that the signature appearing is hers. The claim continues by stating that there should have been a “chain of authentications” and concerning the verification of the value of these documents. Given that this document was used to prove that the unrestricted class A offshore license was granted to Elca International Bank and Trust Limited, article 182 of the Code of Criminal Procedure and article 39 of the Political Constitution were violated. In conclusion, he points out, *“the suitable evidence to demonstrate that the money could have been diverted is the certification that those funds were not deposited in EITB-Belize, and that evidence was not collected in the investigation. Banks have many paths, and many operational accounts to circulate monetary transfers from one place to another”*. The claim is not admissible. It must be established from the outset that, not because a document fails to comply with all consular procedures does it lose all value. Even so, it does not cease to be a document that, without being a certification, provides an element for assessment. However, this is a matter of no greater relevance in this case. It should be clear from now on that disregarding a piece of evidence implies that the fact or facts that were proven by taking it into account must be considered unsubstantiated, because if, by hypothetically removing it, there are other factors of conviction that support such conclusions, the matter will lack procedural interest. This should be noted because the argument will persistently be made, as will be seen throughout this judgment, that because a piece of evidence is not lawful or conclusive, or because it fails to comply with certain formalities extraneous to criminal law or to the events investigated here, certain facts must be considered unsubstantiated.

Returning to the matter at hand, it must be said that, as the defense counsel himself acknowledges, this alleged defect was not timely challenged by the interested parties. Nevertheless, it must be reiterated, the issue is of no great interest, given that, with or without this evidence, the truth is that there is ample evidence to consider it proven that the offshore division of Banco Elca did not have a permit to operate in the Republic of Belize when A. began offering it as a destination for attractive investments (it paid higher interest than in Costa Rica), which is why Mr. M. decided to invest three million United States dollars (hereinafter simply "dollars") there, which were delivered to the accused and never reached their destination nor were returned to him. So much so that, in order to categorically elucidate the doubts raised by the defense counsel regarding the availability of pertinent evidence, it is appropriate to transcribe in extenso the exposition made on this matter by the trial court (a quo). "Likewise, J. emphatically stated that Banco Elca did not have an offshore although since he joined the bank, in 2000, he heard that efforts were being made to create one in Belize, which was J's responsibility, adding '...that was a taboo subject at the bank, it was not advisable to talk about it at the bank. J. would tell the bank executives not to mention that they had an offshore, the national financial market had options from banks that did have one and we did not, which took away our competitiveness, it was not permitted to say that we were creating it. Don J. sometimes asked me for staff and sometimes, without my permission, he would take them to go to Belize. Elca International Bank was what the offshore was going to be called. Out of the blue, the bank's financial manager told me, I don't know if it was four or seven million dollars, that were in the bank, in certificates of deposit (certificados), they were cancelled, R. or W. told me that and they took the money to Belize and that caused problems because the deposit portfolio was reduced (...) I never physically saw an investment certificate from Elca International Bank (...) B. was the acting business manager, he called me saying that J had arrived, that he told him to sign an investment certificate from Elca International Bank, he told me and I told him how could he think of signing that if he didn't work for that bank, I didn't physically see the document but he told me and was very worried. I never knew that the bank was authorized to carry out operations, I believe it was never authorized.' a version that was supported by M. who added 'I know that an offshore branch was being set up in Belize, Elca International Bank, but I understand it was not operational, I found out about that from a Mr. J. who had problems with a certificate from that bank that I had signed at the request of Don H, he went all the way to Belize and could not cash it, he told me that bank did not exist (...) Don J. came looking for me at Banco Cuscatlán, when I signed the certificate Don J. told me that the offshore bank was a clone of Elca Costa Rica, that those of us authorized here were going to sign the same over there, that he was looking for me because Don H. was not there nor Don C. (...) I was Don H.'s assistant but he had no relationship with the offshore, it was Don J. who handled everything related to the offshore, I did not meet any offshore staff, I don't know if I signed another document, that one I am clear about because the gentleman came looking for me and I saw him, I don't know where the document was issued (...) when I signed Mr. P.'s certificates it was normal to sign various documents, one was trusted, it wasn't that common to sign investment certificates..'. This statement is credible even though it is denied that H. had a relationship with the offshore bank in Belize, an aspect that contrasts, in part, with what G. himself indicated and with the documents signed, on behalf of Elca International Bank and Trust Limited, by F. and G., to pay C. (folios 6884 of main volume XV and 7367 to 7371 of main volume XVI which are, in turn, certified copies of evidentiary files 21 and 25, respectively, documentation seized at J.'s house) although this point is irrelevant for what is being heard here. Don H, general manager of Banco Elca S.A., stated in this regard: 'J, the deputy manager and I, privately, told Don C. about our concerns (...) we didn't like lending out the bank's platform (...) we told him that regarding the Belize investment, neither Don J. nor any of the administrative officials had any involvement in the Belize bank (...) a warning was given that the Belize bank was not the same as Elca even though J. had repeatedly told him that it could not operate and that Don C. was offering it (...to) Don J. (...) he was entrusted with opening a banking license in Belize, it was the only bank without an offshore bank. The decision was made to incorporate it, but it was not part of the Corporation even though the partners, natural persons, were quite common (...) The administration did not like that offshore matters were handled at Elca if they were unrelated and that is why the office of F. was moved to an office in La Sabana. The offshore bank was incorporated and obtained its operating license around 2002 but to take deposits it obtained it at a date after the deposits were made (...) Even though it could not take deposits and despite my and J's warnings, the possibility of making these investments was offered not only to G. but to other people and that was done directly by Don C. because I did not allow things to be confused and J. would get angry when a client was offered that in a meeting at the bank. J. was very reserved about Belize matters and as far as I know he made no offers, nor did I or any bank official (...) Offers for investments in the Belize bank were made in Elca's facilities but they were not offered by the corporation, the administration disagreed but we couldn't silence Don C, the person who offered that was Don C, he handled very important clients and was in charge of handling clients of a certain size. (...) I am aware that the facilities were used to offer the international bank, I heard Don C. make the offers and Don J. scold Don C. because confusion was created for the investor since a bank that was not part of the corporation was offered as if it were, and this was not disclosed to the investor. We were worried that Don C. would assign a bank officer to give them information and she (M. for example) had no idea what they were talking about and that is why J. came on the scene. I find two or three other clients who invested in the Belize bank (...) The license as a bank was there but not the license to take deposits and before that, offers were indeed made, not because I heard them but because I found out, one of those is that of C. (...) Don C. openly offered the belize bank (sic) and J. was like a tomb (...) the creation of the belize Bank (sic) was not a decision of Elca's Board of Directors, it was Don C. and his partners' (...) Don C. was obviously warned that the bank was not authorized to operate (...) and also not to mix Belize operations or Elca officials in that type of transactions (...) At Elca International Bank and Trust Limited I don't remember if I signed something to KPMG at J.'s request (...) I have never been to Belize'. But the matter also came to the attention of SUGEF because Ms. C, General Director of Private Banks of that entity, stated: 'In August 2002, Don B.A., the previous superintendent, received an anonymous email reporting that Elca had an entity domiciled abroad. They indicated that the Central Bank of Belize had authorized a banking license but they were formalizing, follow-up was given and in September 2003 Don C. reported that the Board of Directors had agreed that the company would not be part of the financial group. We were very clear that this entity had to be part of the group and that they had to request authorization for the offshore and incorporate it into the financial group, hence the report. He said they were going to be outside Corporación Elca and I was told it was Elca Bank & Trust or something similar and they were told that they must proceed to remove the name Elca to avoid creating confusion for the public. In October we responded to J. indicating that they were not going to conduct intermediation operations in Costa Rica and that they had reserved the new name of the bank that did not include the name Elca. I do not know if the bank began to operate. I know H (...) I do not know if he had a relationship with the offshore bank. An offshore entity operates outside the country, the local bank of an offshore group can provide certain services to an entity domiciled abroad provided it is part of the financial group and there is a contract regulating that situation. There is no possibility of taking investments if it is not part of a Costa Rican financial group, it is only a transfer of funds at the account and risk of whoever does it (...) I do not know if the Board of Directors of Elca approved that offshore nor did they inform me. The definitive name of the bank in Belize was Interbank and Trust, I do not know if it operated.' a statement that finds support in what was established by official communication folio 4413 (main volume X) signed by S. and addressed to C, as legal representative of Corporación Elca Internacional, on February 17, 2003, and received by the general management on that same date. Therein, A. is reminded that since December 18, 2002, 'this Superintendency requested information about the current status of the procedures being carried out by that Financial Group to obtain a license to operate an offshore bank in Belize and the date on which they expect to begin procedures before SUGEF for the acceptance of said location, prior to the request for the incorporation of said entity into the Financial Group, without having been answered to date', which agrees with the reference made by the titular receiver (interventor) M. when saying: 'I did not participate in the period prior to the intervention but it was mentioned to us that the group had requested to set up an offshore in Belize and that an agreement had been reached not to include it in the financial group and the procedures were carried out by Don J. People came forward saying they had intervened in the bank or through the bank, Carabetta with Inversiones Savinelli and Cori Consulting came forward saying that, that they had made arrangements at the bank but not necessarily at the offshore.' That the offering of instruments (títulos) from Elca International Bank and Trust Limited was made to various people finds evidentiary support in the documents at folios 1064 to 1071 of volume III. Therein is a copy of a note (with the received stamp of Banco Elca, General Management and addressed to the general manager of Banco Elca) dated October 1, 2002, in which the representative of Cori Consulting and Financial Services S.A. delivers to Banco Elca the originals of the interest coupons of Elca International Bank and Trust Limited for safekeeping and so that upon their maturity date they be cashed and deposited "free of national bank commissions". There is no document that formally determines that H. was part of the representatives of Elca International Bank and Trust Limited, so the fact that this correspondence was sent to him and that he was aware of these operations denotes that the offshore operations in Belize were considered as just another service of the Costa Rican Banco Elca S.A. because, otherwise, how can one explain that this note was sent to the general manager of this institution? Would it have been sent in the same way to the general management of any other bank? Evidently not, but only to related institutions or those that provided the service referred to therein. It should be noted that according to the document at folio 42 of volume I issued by the Central Bank of Belize, it is precisely that October 1, 2002, when the bank has permission to operate as an offshore (without yet having a license to take deposits, which they would obtain until early 2004) and by then, not only were other certificates and their interest coupons already issued, but they were about to mature. Similarly, in volume XV (documentation seized at J.'s house) there is a certified copy of evidentiary file No. 19 containing copies of certificates issued by Elca International Bank and Trust Limited, with the same format as the one presented by the complainants, signed sometimes by J., sometimes by him and C., and issued starting from February 2003 in the name of entities such as F.y Rosados S.A. or Olga Rozados Pazos, Arjuna Limited, Veda Inc., Nirvana Inc., Jiva Inc., Rank Inc., Deva Inc., Sage Inc., Sahara Inc., Valley International Inc., and Top-co. Inc. (see folios 6608 to 6612 to 6623) not to mention the documents that, in the same vein, Bolívar was asked to sign in favor of Mr. Penón as that witness stated. Of course, the matter was known by the person in charge of creating that branch, J, who said that "he (C.) offered it (referring to Elca International Bank and Trust Limited) like offering confetti on the main avenue, I told him clearly that it was not possible, but he put the entire corporation at its service, like a package." moreover, in some correspondence issued by F., it is clear that there was an initial interest for the Bank to be part of the Elca Financial Group of Costa Rica and that if this could not be achieved, it was due to the interventions of the authorities of the respective countries, such as SUGEF in Costa Rica (through the mechanism mentioned above and described by Ms. C.) or due to opposition from the Central Bank of Belize at the request of North American authorities. Thus, in main volume XV there is a certified copy of evidentiary file No. 21 (documentation seized at J.'s house according to seizure record 362112 of July 22, 2004, visible at folio 573 of main volume II) and at folios 7290 to 7292 there is a copy of a memorandum sent by J. (representative of Cori Consulting and Financial S.A.) in which F. indicates to Tinoco that the Bank in Belize began operations on January 16, 2004, and that it could not be put into operation earlier because the United States began to '...require from offshore centers their collaboration so that in cases of existing related banking operations (parallel banking structures) (by management or affinity of their shareholders) with other financial districts (Case of the Elca Financial Group-SUGEF) uniformity criteria should be promoted so that a single regulator controls two or more groups/banks...' and adds that the new license is in the name of Interbank and Trust Limited and was not objected to by SUGEF provided it was an international bank and that it not be included in the Elca Financial Group. That is, the name change was not only due to the recommendation of SUGEF given the confusion produced among investors (and this Court adds, not only because of the similar name "Corporación Elca Internacional"/"Elca International Bank..." and the almost identical logos but because of the common use of facilities, personnel, and even the attempt -stopped by SUGEF- to include the expenses of one in the financial statements of the other entity) but also due to the change of having it no longer as an offshore of the national bank but as an international bank. Furthermore, this last aspect was referred to differently by C. in his initial statement (indagatoria). While at trial he indicated that 'The offshore bank was developed as an alternative for competitiveness, it was to be managed as a foreign bank, it is not really an offshore but an international bank managed abroad', thereby incurring a true lapsus by initially recognizing that it was an offshore branch (that is, part of Banco Elca S.A.) and then, aware of what he had just said, clarifying that it was not such but an international bank. In his prior initial statement (folios 4043 to 4089, especially folios 4088 et seq. of volume X, assessable in accordance with the provisions of article 343, third paragraph of the Criminal Procedure Code) he refers to the Belize bank as the "offshore bank" and to the fact that G.'s investments in Banco Elca were of very large sums, which implies his acceptance that this business was presented as if it were an investment in the national group and just another service of Banco Elca S.A. Here the defendant mentions a possible investment at the meeting in Guatemala but conceals that, by then, it had already been made. From this group of evidentiary elements - whose statements were clear, precise, withstood cross-examination correctly, without the court having any element to doubt their credibility because their statements correlate with each other and with other evidentiary elements, all reasons for which they deserve, in general, absolute credibility unless expressly indicated otherwise, in which case the reason was explained - it can be concluded, then, with absolute certainty, that the accused C. intended to create an offshore bank in Belize and offered it - even without having the deposit-taking license there nor being integrated into the economic group in Costa Rica - as part of the services that Banco Elca would provide because his bank was one of the few, in the national market, that lacked that service, which reduced its competitiveness. Although subsequently, at the request of SUGEF and due to complications in the procedure in Belize, Elca International Bank and Trust of Belize changed its name to Interbank and Trust Limited and it was established that it would be an international bank separate from the Elca Economic Group, both due to the initial conception and the practical way in which A. handled the matter (expenses of that bank were intended to be introduced into the financial statements of Banco Elca S.A., A. offered it as a service of said bank, the same name and logo were used, there was confusion of personnel and tasks because the Costa Rican representatives were placed as if they were those of Belize, the Costa Rican facilities were used for functions of the supposed Bank of Belize to the point that G. states he did not travel to Belize around those dates despite which he signs documents on behalf of Elca International Bank and Trust of Belize changed its name to Interbank and Trust Limited, etc.), said bank was always offered as just another service of the Elca financial group and, specifically, of Banco Elca S.A. and it was so much so that its officials were authorized or sent to go to Belize to provide computer services or compliance officer duties, the national facilities were used, it was publicly offered to clients and other members of the Financial Group, and employees of Banco Elca S.A. were even told that it was going to be a clone of the national bank and that those who were authorized to sign here could do so there" (folios 17228-17235). In conclusion, as stated, there is abundant evidence that the offshore bank service offered by A. to Mr. G. (among other people) was not operating at that time, but rather was part of a deception used to make them transfer money for alleged investments that never became such, but were diverted funds, as will be explained below.

II.- In the second claim, it is said that proven facts XV and XVI, which refer to the receipt of Mr. G.'s money (to be invested in the name of the corporation Night Glow) by the accused and its deposit in account No. 6096-1 of Transamerica Bank Trust Co., belonging to a company controlled by A., the corporation Bosques de Ayarco BA, are sustained solely on the testimony of H. This witness, the challenger says, was the subject of a complaint by the offended corporation, but they settled for the sum of one hundred thousand dollars and his word to testify in this case. This should have been considered, as well as the fact that the check is dated May 31, 2002, and the memorandum to dispose of the funds, June 6 of the following year, which would have led to dismissing his version that he had to call A. to ask for instructions. It became clear, the defense counsel says, that G. could disobey A.. Subsequently, the interests that the offended parties may have had in a conviction of the defendant and the role that this witness and J. may have had in that plan are discussed. He adds that the bank was not a "kindergarten," in which A. gave orders and the others blindly obeyed. The reproach is not acceptable. The fact that G. had settled for a sum much smaller than that demanded by the offended corporation, or that he showed some level of displeasure at having been involved in these events, is not sufficient reason to deny credibility to his statement. National jurisprudence has repeatedly said that the credibility of evidence lies in its own coherence and plausibility, as well as in its contrast with the others. Not on speculation about the motives someone has to say one thing or another. In this case, there is no indication whatsoever that G. did not tell the truth, so lacking valid arguments, the defense counsel speculates about his disposition towards A. and the benefit that others may have obtained from it. Therefore, with those suspicions, there is no reason to call into question the statement of that declarant.

This evidence, moreover, is consistent with the rest of the testimony given by the bank staff who appeared at the hearing, who unanimously stated that the person in charge was its owner and president, A. He was the one giving orders, and this is attested throughout the evidentiary summary, making a specific reference to it redundant, as it is a fact present in all the testimonies adduced. Thus, it is reasonable that, although G. sometimes had criteria different from A.'s, it was the latter who made the arrangements and decisions regarding relevant aspects, such as precisely the receipt of three million dollars, received to invest in an offshore service that he had offered but that was not operating. In addition, as witness J. stated: "I believe I could oppose C.'s orders, but if I did, being a salaried employee, I would be fired." Finally, it is not clear what relevance the fact that the check received had one date and the memorandum on the destination of the funds had another has, because for whatever reason A. was not present and had to be located by telephone, receiving the pertinent instructions from him (folio 17089). In summary, it has not been demonstrated that G. has been untruthful and, consequently, that the proven facts XV and XVI are untenable. The ground is dismissed.

**III.-** In the third ground, it is argued that J.'s situation is similar to H.'s and that, surprisingly, the Court accepted as evidence some certificates that he took out of his trouser pockets during his testimony. The defense counsel argues that this evidence is illegal because no handwriting expert examination (prueba grafoscópica) was conducted to establish the authenticity of the signature on those certificates, that F. has a particular interest in the resolution of the case, that they refer to a fact not being adjudicated "and that is related to the Cori Consulting case," and that Article 29 of the Law on the Registration, Seizure and Examination of Private Documents (Ley de Registro, Secuestro y Examen de Documentos Privados) was misinterpreted when using emails sent by the accused to F. without the author's consent. Finally, it returns to the point of the role that both F. and G. played as witnesses interested in the matter and useful to the civil claimant. The ground is not admissible. As stated above, the personal reasons each witness may have are inconsequential, unless they affect the credibility of the evidence. This has not been compromised, not remotely, by the content of their depositions or the manner in which the mentioned F. and H. testified. It is understandable that the defense resents that, to its surprise, the certificates of the money that A. had received from Night Glow sociedad anónima appeared at the hearing, because this documented that the accused had indeed received such sums with the ruse that they were for investment in an offshore bank in Belize. This definitely constituted a factor that affected the defense's strategy, which consisted, among other things, of denying that things had happened that way. But from there to it being illegal evidence, there is no identity. As the lower court (a quo) correctly stated, the principle of freedom of evidence allows relevant circumstances to be proven by any lawfully obtained means. Thus, there being no illegality in the fact that it was during the trial that (as a truly novel circumstance) the declarant F. produced said documents and made them available to the lower court and the parties (who were able to examine them and, if applicable, challenge them), they could be fully taken into account as evidence in the judgment. The fact that those documents or an action by F. are being examined in another case does not prevent them from being weighed by the judges for purposes of resolving the present one. Nor was it prevented by the lack of a handwriting expert examination to verify that the signature appearing on the certificates was A.'s, as there is no indication whatsoever to assume that the signature appearing there is not the defendant's. On the contrary, F.'s testimony is emphatic that the signatures are his and A.'s (folio 17050), which is consistent with A.'s stubborn and irresponsible involvement with the purported offshore bank project in Belize, which has already been extensively cited. Furthermore, in the email whose inclusion the defense counsel reproaches, A. himself acknowledges that it is his signature. Finally, reference must be made to the litigant's allegation regarding the violation of the defendant's privacy and the Law on the Registration, Seizure and Examination of Private Documents, which is also inadmissible, because since F. was the recipient of the electronic communication sent to him by A., he was the holder of his own privacy and could make it available to the lower court in that sense. That is, contrary to the appellant's interpretation, it is understood that when the norm refers to whether there are several holders, Article 29 of that law refers to there being several subjects located on the same end of the communication; but not when there is one subject on each side, because in this case either of them can consent to its use. So much so, that if the norm referred to scenarios, like the present one, where there is a sender and a receiver, it would be unnecessary for it to contemplate the special situation of there being "several holders," because every communication, to be such, requires at least two subjects. That is, they would always be "several," which would render the distinction pointless. This demonstrates that, in the case of a receiver (as F. was), his authorization alone was sufficient for the use of said email sent to him by A.

**IV.-** In the fourth ground, the appellant claims that several passages of the judgment reveal "a kind of prejudice" or "a premature conclusion." Thus, he says that the lower court does not justify its characterization of "defrauding actions" (actuaciones defraudatorias), which must be deduced from the facts and not inferred a priori. At the same time, placing certain expressions in quotation marks "reflects a pre-judgment (sic) by the Court." Stating that A.'s actions were fallacious means he is a liar, which undermines the defendant's dignity. He adds that, without narrating the facts, the judgment already characterizes them, in addition to not stating the source for the claim that the defendant told Mr. G. and his advisor that he had already completed the authorization procedures for the offshore banking to operate. He goes on to allege that the Judges did not state their basis for saying that F. sent accounting reports every month to M. about the supposed returns on his investment in Belize; that the judgment did not reflect that during 2002, the relationship between that gentleman's companies and Banco Elca was normal; that the certificates delivered to him were not fictitious, as he received interest payments; and that the judgment does not describe how the Court obtained the certainty that this sum was used to satisfy A.'s personal obligations. The ground is not admissible. The fact that the Court refers to a series of actions or even to the defendant's modus operandi in a way that is compromising or exposes him as a person to be wary of does not imply that it had a prejudiced attitude against him. Prejudice is when a position is held prior to the trial, that is, before the evidence is presented. Not when the evidence has already been submitted and the judges have formed their opinion. In such circumstances, there is no obstacle, but rather it is the necessary consequence (unless there is doubt to the contrary) that the judges have an opinion about the subject, his way of acting, and his actions under discussion. In some situations, that opinion may be negative for him, as in this matter. But not because it stems from a prejudice, but from a judgment based on the evidence presented. Then, if the Court places quotation marks around some terms or expressions, it is because this is a linguistically valid resource to connote that their meaning is not the usual one, but rather a hidden one, which in this case was part of the plot and defrauding actions of A., which (instead of being a position prior to the hearing, as the defense counsel claims) clearly arises from the evidence presented. This evidence, as is well known, is weighed during the judges' deliberation, and once it concludes, they proceed to draft the judgment, putting their decision into the document (or presenting it orally on the occasions when this is appropriate). But it in no way means that the judges develop their reasoning as they draft it or present it in the document. That is why there is no irregularity in the fact that, before addressing the various pieces of evidence in the subsequent pages, the Court's conclusions appear in the written document (or oral presentation), not because they were prejudiced or had taken a prior position, but because it is the product of their deliberation, which has already taken place and does not develop simultaneously with the drafting of the judgment. On the other hand, it was not necessary for the Court to explicitly indicate the source for the claim that the accused had offered the offshore banking services as if the authorization procedures were completed, because by offering them as viable (and the defense counsel himself partially transcribes a testimony in this regard) without mentioning they were in process, it was because its operation was, of course, already authorized, or rather, the accused made it appear so. Additionally, there is evidence that F. provided said investor with the mentioned account statements (see R's statement, folios 17058 and 17061), which were intended to give the appearance that things were proceeding normally, when the truth is that the offshore bank was not operating and the funds had not been invested. Similarly, A.'s prominent role and insistence in this defrauding scheme leads logically to the conclusion that he at least consented to the sending of those account statements, if they were not actually part of the initial plan to keep the victims in error. Likewise, the fact that some of the interest accrued on the money delivered to A. by Night Glow sociedad anónima was paid does not retroactively undo the already established crime of fraud (estafa), in which (as has been stated many times) G. was offered the services of a non-existent institution to invest funds that never reached their destination. On the contrary, as the lower court explains from folio 17255 onwards, these maneuvers were intended to conceal what was happening and keep the victims deceived. Hence, even if some interest was paid, the certificates were no less fictitious and did not become genuine, because neither the offshore banking was operating nor had the funds been allocated to any investment. This also makes it irrelevant that during 2002 the commercial relations between G. and Banco Elca were normal, because what matters in this case are not those facts, but the crimes that were ultimately perpetrated, which are not precluded or affected by prior good relations. Finally, regarding the destination that the Court, in its evidentiary reasoning chapter, stated A. gave to the aforementioned received funds (to pay personal obligations), it was not necessary for the lower court to detail each of the payments or expenses made with those funds, as this was already part of the exhaustion phase of the crime and not its consummation, which is unnecessary. It was sufficient, as the lower court stated and the defense counsel himself transcribes, that one of the bank officials hierarchically closest to A. (G.) verified it, stating that the account to which the three million dollars from Night Glow sociedad anónima had been diverted was a private one belonging to another company controlled by the defendant. The truth is that, to one destination or another, the money was not sent to the purpose for which it was intended, but was diverted by the accused to an account he controlled, which constitutes the alleged financial damage and pointed to an illicit financial benefit, whether for A. (as was proven) or for a third party.

**V.-** In the fifth ground, the appellant argues that his client was a distinguished person of unimpeachable life until these events, and therefore did not need to engage in this type of action to acquire capital. "When the disbursement of three million dollars was made, the transfer was requested by Mr. R. directed to Transamerica Bank and Trust in the Bahamas. From the beginning, the complainant party knew perfectly well that the money was not being transferred directly to Belize (sic)." He indicates that the fact that the money was not sent to Belize did not constitute an appropriation of it, but rather an irregular deposit (depósito irregular), allowing the bank to use it at its discretion. He says that the check for three million dollars was made out to Transamerica Bank and Trust, and that neither Banco Elca nor EIBT-Belize participated in that transfer. He then argues again that the non-existence of that offshore agency in Belize at that time was not proven; that the money received was in the nature of an "irregular deposit"; that the agreement reached in Guatemala City and the failure to request the original certificates show the trust that G. still had in the accused; that, at most, it all amounted to a violation of banking legislation; and that A.'s willingness to put his assets at stake to respond proved he had not acted with fraudulent intent. The claim is dismissed. It is not worth revisiting the topic of the non-existence of the offshore banking in Belize as a service of Banco Elca, which is already established from the first recital (considerando) of this resolution, and the parties are therefore referred to what is stated there. Now, regarding whether the injured company and its representatives knew that the money was not going to that agency but to Transamerica Bank and Trust, where the accused had an account, this is an irrelevant matter, because a deposit can certainly be made to a banking entity different from the recipient of the funds, so that the former can channel them. "...common practice at that time," said R. (folio 17057). But this in no way implies that A. was authorized to give them a destination different from that agreed upon by the parties; namely, to invest them and not use them for other purposes, such as the accused's personal obligations, as witness G. confirmed. Therefore, the fact that this money was channeled through that account and not directly to Belize—which was impossible given that said offshore agency was not operating at the time, but rather there were facilities that simulated a proper operation (a matter already dismissed here)—does not mean that the victim authorized a different destination for his money. This, contrary to what the defense counsel argues without any support, was not an "irregular deposit," or an act where someone entrusts another with the care of an asset or value with more or less powers, for which a lawful transfer of possession is required. In the present matter, the transfer of possession was not lawful, because it was preceded by a deception, into which Mr. G. had been led, and which has already been repeatedly described and is redundant to explain again. The truth is that, although these funds did not go through EIBT-Belize—which was impossible as it did not exist then—or through Banco Elca, what is beyond dispute is that they did go through A.'s hands, who disposed of them diverging from his commitment to the investing company, whose owner had been deceived, using for this purpose the appearance of solidity and respectability conferred upon him by the bank and his personal background. Thus, to maintain here, as the accused attempted to do before the creditors, that this is not a matter for Banco Elca, is to ignore the circumstances in which the deception operated. In another sense, the fact that during 2002 the business dealings of that injured party and Banco Elca were positive does not mean they still trusted it when they reached an agreement in Guatemala, where a new payment schedule was established, but rather, as Mr. G.'s legal representative stated, they did it to salvage "something from the wreckage," but by then they were certain they had been deceived, a fact they confirmed when A. expressly told them he would not pay the money owed (folios 17058, 17059 and 17061). At that same meeting, Mr. G. said, "I became more convinced that A. and F. were thieves" (folio 17161). Thus, it is not true that by accepting that arrangement proposed in Guatemala City, the victim condoned or ratified the defendant's actions; he was rather trying to recover his money, which was not possible because the alleged agreement was not honored by A. Even after that, as witness N. stated, "...we left convinced that we had to file the criminal action, but G. wanted a financial settlement" (folio 17141), which discredits the defense counsel's thesis that the latter used the criminal process to safeguard his funds in the face of Banco Elca's bankruptcy. In summary, the problem was not a lack of respect for Costa Rican or Belizean banking legislation, but rather that financial damage had been caused to G.'s company by using a deception or artifice on A.'s part, thus constituting a crime of fraud (estafa).

Faced with such a situation, having definitively left the purported original certificates in the custody of F. was a mistake, as was later revealed, but at that time the fraud was not foreseen, only the breach of obligations. Once the deception was discovered and efforts to recover the money were fruitless, the proper course was not to demand the instruments (títulos), but to report the facts, as was indeed done. Finally, it is not true that A.'s willingness to hand over some of his assets to answer for his debts shows he lacked fraudulent intent (dolo defraudatorio). Firstly, because that would have merely an indemnifying value with respect to the crime that had already been consummated some time before. And, most importantly, because those assets did not cover the amount defrauded and were not reliable. In the words of witness N, “…*even through Mr. A. we were offered some properties, they went to see them but they were not worth the value or were entangled*” (folio 17141).

**VI.-** In the sixth ground, the appeal argues that *“With a total loss of the principle of objectivity, the Court bases its reasoning for imposing the sanction on C. on the testimonies of H., R., and G., and takes from these persons very subjective statements without probative support in the rest of the evidence.”* It adds that A. wanted to seek an arrangement by placing some of his properties at the disposal of the interested parties, which was disqualified using the criterion of witness N. that it was not taken into account that with the other involved parties (G. and F.) a settlement (se concilió) was reached for 2 and 2.5% of what was demanded of them; that Mr. G. saw his interest payments and was able to recover *“many millions of dollars.”* Next, it questions the use given to the account of the corporation Bosques de Ayarco and that EIBT-Belize had a physical presence in that country, about which matters were already discussed in this ruling, so one must refer to what was decided there. To conclude, it says that the physical health of his client and his family obligations with young children were not considered when setting the penalty; that R. said that *“when asked if he was going to pay them, he limited himself to saying, looking his interlocutor in the eyes, that no…”*, which is a rhetorical device, not a legal one; and that the medium penalty (pena media) to which the Court alludes is not eight years, composed of ninety-six months, as was imposed on the accused, but seventy-six months. The defense counsel is incorrect. In the first place, the penalty imposed on A. is not based solely on the statements of those witnesses he criticizes. Moreover, even if it had been, it would not have constituted an irregularity, provided they were credible and consistent testimonies, as they indeed were. In any case, it is worth bearing in mind that, as was said, they were not the only pieces of evidence weighed for that purpose; rather, one need only read from folio 17279 onwards—even though only express mention is made of them—the judgment of culpability is based on the entirety of the evidence gathered in that regard and on the conclusions regarding guilt that this shows in the actions of the accused. On that subject, the Court stated: *“The final paragraph of Article 216 of the Penal Code, by indicating that ‘The preceding penalties shall be increased by one third,’ requires that the minimum and maximum extremes of the abstract penalty provided for the crime be increased by one third. As in this case we are dealing with aggravated fraud (estafa de mayor cuantía) whose penalty is six months to ten years, the abstract penalty imposable with the proven aggravating factor is* ***eight months to thirteen years and four months****. Both the Public Prosecutor’s Office and the private prosecutor requested a penalty of eight years in prison, which, as can be observed, is neither the minimum nor the maximum penalty. This Court unanimously considers that the aforementioned sanction must be maintained as it is adequate to the culpability, that is, to the level of reproach that must be made to the accused A., assessing the elements indicated in Article 71 of the Penal Code. Regarding the* ***subjective aspects of the punishable act***, *it must be taken into account that the accused acted with direct intent (dolo directo) and not only succeeded in consummating the crime by obtaining the delivery of the three million dollars on May 31, 2002, but also kept the offended entity in error for a much longer period by delivering supposed account statements for investments that never existed as such. When he was required to deliver funds, he alleged problems with other international banks for transfers, controls on clients due to the amount, invitations to invest, and this resulted in the fact that, at least until January 2004, the offended party did not know the full magnitude of what had occurred. Regarding the* ***objective aspects and the circumstances of manner, time, and place***, *it must be considered that R., representative of m. and Night Glow S.A., knew of C. because references about him had been given at Finadesa, where R. was a director (an institution that was a shareholder of Financorp Puesto de Bolsa, in turn part of Elca Internacional S.A. Corporation presided over by A., he knew the broad prestige Mr. C. possessed in the Costa Rican banking and financial environment, the solid curriculum he possessed as President of the Chamber of Commerce, director of the Banking Association, President of the Chamber of Private Banks and financial entities, founder of the Elca Corporation, etc., so he approaches him at the physical facilities of Banco Elca in order to contact investments for his represented party; meetings are held with the very President of the Corporation and of Banco Elca, he calls senior executives (managers) to participate in it, and as a result of that situation, they are induced to invest in offshore banking in Belize, non-existent at the time. So the inducement in error is carried out under conditions that for any victim were highly credible, without any element emerging to distrust the legality of the business proposed by A. That inducement in error and that injection of liquidity occurs at a time when the accused A. was carrying out a plurality of business activities (founder and President of Hospital Cima San José, of Cormar, former president of Chambers, etc.), when many of his accounts had negative balances or overdrafts, so he had to resort to third parties lending him their accounts and names to make payments (as H. stated), and that Banco Elca S.A. had already presented levels of irregularity decreed by SUGEF (in that sense C. and O., among others), all of which allows us to glimpse what the* ***determining motives*** *were for the commission of the act, that is, the accused's intention not only to obtain resources at any cost and thus hide other irregularities already present in his personal finances and those of the bank he directed, thereby managing to maintain, artificially, the prestige he possessed in the national environment. One must also consider the* ***importance of the injury to the protected legal right***, *that is, the patrimony of the offended entity, which was diminished by at least three million US dollars, that is,* *approximately* *one billion four hundred seventy-six million colones at the current exchange rate (four hundred ninety-two colones per dollar), without considering the interest that the sum could have generated according to the agreement. Without a doubt, for the consummation of the crime, it is particularly important in this case to consider the* ***conditions of the active subject and the victim***, *because if Mr. C. had not had the curriculum, the prestige, and the position of President of Banco Elca exercised in the manner he did, and if the victim had not known of them beforehand, the crime evidently would not have been consummated. That relationship generated the necessary trust so that the passive subject did not take extreme controls that he would have used under other circumstances. Furthermore, A. takes advantage of the circumstance that he knows the invested money came from sport book activity to misappropriate it under the false belief that the origin of the funds or the eventual lack of tax declaration on them made them illicit and that this would prevent the active subject from reclaiming them through legal channels, and he even goes so far as to say this to the victim by stating that he dissociated the funds from Banco Elca ‘to protect him,’ to which G. indicates that his legal situation is in order in the United States, that no one gave him instructions to proceed in that manner, and that he can freely report who the final recipient of that sum is without any legal problem, something that A. probably did not anticipate. Finally, no less important is the* ***conduct of the agent subsequent to the crime*** *because A., in one of the last meetings with the representatives of the direct offended party, when asked if he was going to pay them, limited himself to saying, looking his interlocutor in the eyes, that no (as stated by R.), and although at some point there were proposals for the delivery of assets, they were—in the words of the victim’s representatives: G. and R.—laughable since they were encumbered real estate, of a value much, much lower than what was lost, etc. All these reasons lead the Court to sustain that the penalty deserved by the accused in this case can never be a minimum or low penalty, but rather he must be sanctioned with a sufficiently high penalty to be proportional to the damage suffered and to his high level of reproach given the narrated circumstances, without it being possible, either, to impose the greater extreme of the penalty (of thirteen years and some months) given that he is a first-time offender (primario) as stated in the judgment certification on folio 16635 of volume XXVII principal, besides that—as usually happens in white-collar crimes—he is a person adapted to basic social norms (he has had university studies, has performed occupationally with success, helps the community, has no addiction problems, has family roots, etc.) where the resocializing principle (foundation of the prison sentence in our environment as provided in Articles 51 of the Penal Code and 5.6 of the American Convention on Human Rights) and understood, for this case, as the process of raising awareness about the consequences of his acts and the need to adapt to all norms of human coexistence, including commercial standards, would be achieved with amounts lower than the upper extremes. Therefore, imposing eight years in prison, as requested by the accusers, that is, a medium penalty (pena media) (five years and some months less than the maximum penalty and seven years and some months higher than the minimum) is considered adequate to what has been narrated and it is appropriate to decree it as such.”* (folios 17279-17282). This proves that the petitioner's complaint is unfounded. Then, there was also nothing preventing the discarding, based on the testimony of Mrs. N, of the claim that the properties offered by A. did not match the value of the damage nor were reliable, as there is no element whatsoever (nor does the appellant present one) to discredit that statement, which appeared solid and informed. As for the claim that settlements (conciliaciones) were reached with the other two involved parties for 2 and 2.5% of the sum demanded of them, it is not clear whether the defense counsel is again trying to sow doubts about the reliability of their testimonies, a matter already elucidated in these pages, or if he regrets that his client was not afforded the same treatment, which is entirely understandable, given that he was the author of the deception, who decided the destination of the funds, who acted as president of Banco Elca, and was also the majority owner thereof. Therefore, his level of involvement and culpability in the acts was much greater and, as a result of the settlement (conciliación), the aggrieved parties provided themselves with additional evidence to establish his liability, which is perfectly in accordance with the law. It is not true, moreover, that Mr. G. received payment of the interest on the sum diverted by A. He was paid some, in an attempt to keep the deception afloat, but not all. Furthermore, since the contracts began to be breached, that gentleman has not received more money on that account and continues not to do so. The fact that he was able to recover *“many millions of dollars”* (in reality, two) from other transactions does not mean he did not lose the three million that were the object of the fraud (estafa) at hand. The matter of how R. narrated the answer A. gave him is something procedurally inconsequential, because even if it had a rhetorical effect (which is lawful), unless it can be demonstrated that it was implausible and led to unreasonable conclusions, which is not the case in this matter, it is something of no interest. Regarding whether the eight-year penalty imposed on the defendant for these acts is the midpoint of the legal range or not, this is an argument that assumes the lower court's (a quo) exposition tends to place it at that 50%, when the truth is that it speaks of a *“medium penalty (pena media)”*, but immediately clarifying that reference is not made to the seventy-six months alluded to by the defense counsel, but to eight years in prison, regarding which the punitive assessment by the Judges has been developed. This is made entirely visible from folio 17279 (and can be read in the transcription above), where the lower court (a quo) says that it is not appropriate to impose either the possible maximum or minimum, a sense in which it later speaks of a *“medium penalty (pena media)”*. From there, and taking into account all the relevant circumstances of the act and the personal conditions of the accused (including his public background), it is repeatedly stated that what is prudent is eight years in prison. Lastly, if the accused's health is not the best, that is an aspect that can be addressed by the defense attorney during the sentence enforcement phase, in order to ensure the best possible well-being for his client. Similarly, although the situation in which the accused's children are left is lamentable, just like the children of any person deprived of liberty, the truth is that this is an element whose importance pales and is relatively slight when compared to the seriousness of the acts he incurred. Consequently, both are topics that have no major relevance in the setting of the penalty that the defense counsel demands.

**VII.-** Next, the appellant reproaches the Court for having considered it proven that Mr. A. came into possession of the H. family’s investment certificates, ordering their early redemption (redención anticipada) without any prior study, to cancel a loan (crédito) he had irregularly granted to the corporation Kiona San Francisco. Then, says the petitioner, while on one hand he is considered not the owner of the instruments (títulos), but rather a bank official who authorized their redemption (redención), immediately thereafter it is said that he acquired the instruments (títulos) and redeemed them (redimió), to proceed with the known payment. Everything is resolved, says the defense counsel, by observing that there is a letter from the owners of the instruments (títulos) requesting their early redemption (redención anticipada) to cancel the loan (crédito) operations of the aforementioned corporation. Therefore, it is F. who orders the redemption (redención), and not the accused. On the other hand, Mr. H. himself said that the financial statements of that corporation, whose loan (crédito) he was going to assume in exchange for the investment certificates, had been reviewed, and they seemed good to him. In that same direction, the shareholder of the corporation, Mrs. E., also testified. Thus, there were no reasons to assert that A. had come into possession of those instruments (títulos) and ordered their redemption (redención). That being the case, a series of legal precepts were violated, which must lead to quashing the judgment in this regard. The appellant continues by saying that Article 245 of the Penal Code sanctions anyone who, making use of privileged information, acquires or alienates securities for their own benefit or that of a third party, which did not happen in this matter, in which A. neither acquired nor alienated. So, the same reasons that led the Court to consider some acts atypical lead it to convict for others, which is contradictory. Finally, he replies that according to Banco Elca's internal regulations, there was no maximum amount for early liquidation and that the payment of a debt does not threaten a bank's liquidity because what it reduces is the liability. The objection is not admissible. To put things in their proper dimension, it is worth recalling that the Use of Privileged Information is provided for in Article 245 of the Penal Code, which literally states: *“Whoever, knowing privileged information relating to securities tradable on the stock exchange, their issuers, or relating to securities markets, acquires or alienates, for himself or through a third party, securities of said issuers for the purpose of obtaining an undue benefit for himself or for a third party, shall be sanctioned with a prison sentence of three to eight years. For the purposes of this article, information is considered privileged when, due to its nature, it may influence the prices of the issued securities and has not yet been made known to the public”* (as added to this article by numeral 185, subsection b), of Ley Reguladora del Mercado de Valores No. 7732 of December 17, 1997). Consequently, as the defense counsel points out, it is vital to resolve the claim to determine whether A., thanks to the mastery of privileged information about securities tradable on the exchange, their issuers, or markets, alienated or acquired securities of said issuers for the purpose of obtaining an undue benefit for himself or for a third party. Again, to have at hand what was established in the ruling in this regard, it is appropriate to transcribe the part pertinent to the act under discussion. From folio 17328 to 17337, the lower court (a quo) stated: *“It was accused and accredited that during the month of June two thousand four, Messrs. F., M., F., and M., all members of the H. family, as investors of Banco Elca, requested from the accused C. the early redemption (redención anticipada) of four investment certificates, namely Nos. 200027349, 200028337, 200027929, and 200026056, whose total amount approximated six hundred fifty-two thousand seven hundred twenty-six dollars and fifty-six cents ($652,726.56) and which matured, the first two, on September thirteen, two thousand four, the third on April seven, two thousand five, and the last on October seven, two thousand four. The accused denied this possibility under the pretext that it would be detrimental to the cash flow, which, as already indicated, he did not argue regarding the requests of his father and wife but which, in any case, denotes—once again—the knowledge he had of the bank's irregular situation and the consequences of those redemptions (redenciones). In its place, A. offered to exchange said investment certificates for a ‘loan’ that Banco Elca S.A. had in its favor with Inversiones Kiona San Francisco S.A. for four hundred fifty thousand dollars and which had as a pledge guarantee thirty-five percent (35%) of the shares of Financorp Puesto de Bolsa and thirty-five percent (35%) of the shares of Financorp SAFI, owned by A., this loan having been approved unilaterally and irregularly by A. as will be addressed later (section X). On June twenty-eight, two thousand four, brothers F. and M. appeared at Banco Elca S.A. and delivered to C. the respective investment certificates duly endorsed and signed some notes, which the cited accused presented to them, in which they requested Banco Elca S.A. to early redeem (redención anticipada) the instruments (títulos) that until then belonged to them. Immediately after, the accused ordered the early redemption (redención anticipada) of those instruments (títulos) and their corresponding interest and proceeded to cancel the loan (crédito) that Inversiones Kiona San Francisco S.A. had with Banco Elca S.A. As the gentlemen H. also had debts with that entity, the accused, with the rest of the money and at their request, decided to cancel loan (crédito) operations Nos. 000300012946, 000300012679, and 000300012429. The day after that operation, Banco Elca S.A. was intervened and, a short time later, the companies Financorp Puesto de Bolsa S.A. and Financorp Sociedad de Fondos de Inversión S.A. were also intervened. As has been stated, there is no restriction from SUGEF for banking entities to carry out early cancellations of investment certificates when the client so requests. Similarly, it is up to each Bank or financial entity to regulate everything referring to that point, as indeed Banco Elca S.A. did when it approved the ‘Manual of Policies for the Issuance of Investment Certificates’ on April 15, 2002. As part of the requirements for those redemptions (redenciones), it was established that the investor must request in writing the early cancellation of their respective instrument (título) and that the same would be authorized and approved by the Presidency, Deputy General Management, or General Management, with no limitation as to the amount.”* They could also be authorized by the Financial and Operations Management, the Head of Customer Service or Treasury, the Supervision of the Service Platform, but these, indeed, with a limit on the amounts. From the foregoing and always in accordance with the referred "manual," it follows that when the early redemption of the investment certificates in favor of the H. Brothers was requested in the month of June two thousand four, the accused C, as Executive President and owner of Banco Elca S.A., did indeed have the possibility of early redeeming the H. family's investment certificates, except that on this occasion he did not want to do so under the pretext that it was a very high sum of money and that it was impossible for the bank. How is it that the early redemption of his father's investment certificates (approved by the accused on May 28, 2004), which reached a total sum of ninety-nine million, six hundred twenty-five thousand, one hundred ninety-six colones and fifty-six céntimos (99,625,196.56), did not represent a problem for the bank? One aspect that we must not overlook is that, as stated when analyzing the early redemption of his relatives' investment certificates (VII.1), the accused at the cited time had full knowledge of the degree of irregularity in which the Bank he directed found itself. We highlight here the official letters SUGEF-623-2004 of February 17, 2004 (folio 50 volume I), SUGEF 1082/200402588 of March 17, 2004 (folio 19 volume I), and SUGEF 1881-2004 of May 13, 2004 (folio 93 volume I), sent to J, then Acting General Manager of that entity, to the Board of Directors of Banco Elca S.A., and to A, General Manager of the bank as of May 13, 2004; it cannot be thought that, because they were addressed to other persons, they were alien to the owner and Executive President of that banking entity, whose experience in the financial area allowed him to foresee "in the very near future" the negative consequences of the irregularities found by the respective authorities of the Superintendency. As already stated, the testimonies of M, J, J, E, M, W, M, M, R, P, W, among other witnesses, have been very clear in describing the atmosphere of tension and uncertainty experienced by the Bank's employees prior to the intervention, how meetings were held in which the accused A. participated, with the sole intention of "calming them down," how even before the intervention was decreed there were already officials of SUGEF on the Bank's premises who were dedicated to investigating and detecting the anomalies. Recall, for example, what was indicated by M "...the atmosphere in the bank in the first quarter of 2004 was very tense, there were many changes, at the labor level there was uncertainty, it was said that the Bank needed to increase its equity, there was talk of problems... it was said that capital was coming from Venezuela, of a possible purchase by a larger bank, we didn't know if we would stay or be laid off, meetings were held and we were informed, Mr. C. participated actively, he informed us, he showed himself enthusiastic about that business..." and J. "in October 2003 SUGEF evaluates the portfolio, SUGEF went overboard and forced us to create an excessive provision of 477 million colones in addition to the one we already had, which was 570 million. The minimum required provision was 1100 million colones. We followed the channels and there was no way to change that. That situation forced the Bank, if the provision was created, to come out with negative results, and to comply with the rescue plan and come out with normal risk, the credit portfolio had to increase enormously. Mr. H. was not there. The situation was presented to Mr. C." All this to reaffirm, once more, that it is not true—as has been insisted—that the accused C. was unaware of the bad situation that Banco Elca was going through, nor that he was unaware that SUGEF was carrying out studies in order to detect the reason or reasons that precisely led, some time later, to its intervention being ordered. It is worth clarifying that the issue here is not whether the accused C. could or could not approve and sign the early redemption request that the H. brothers had requested (which was already said before that he could), but rather, precisely, the "use of information" that he used to unduly benefit himself, since, although it is true that he did not initially approve the request made in favor of the investors themselves, he did agree to make a change, consisting of the H. brothers handing over the four investment certificates they had in the bank for an approximate amount of six hundred fifty-two thousand seven hundred twenty-six dollars and fifty-six cents ($652,726.56) and he, in their place, gave them a credit that Banco Elca S.A. on May 31, 2004, had conferred upon the Company Inversiones Kiona S.A. for an amount of four hundred fifty thousand dollars ($450,000), whose guarantee consisted of 35% of the shares of Financorp Puesto de Bolsa S.A. and 35% of the shares of Financorp Sociedad Administradora de Fondos de Inversión, such that, once the proposal was accepted, the accused intelligently proceeds, now yes, to early cancel those four investment certificates and with the money resulting from that redemption, not only cancels three credit operations that the H. family and its companies had with Banco Elca but also hurries to cancel the credit that, irregularly, he himself had granted to Inversiones Kiona S.A. (this point will be addressed later). It is precisely this maneuver that is being questioned, since the objective he pursued by "acquiring" the H. family's investment certificates through that means is more than clear. Now then, let us proceed to the examination of the evidence related to the H. brothers and that, definitively, corroborates what was stated above. Mr. F tells us that he and his family were clients of Banco Elca both personally and in the name of their companies Industria Textil, Industria Ella S.A., Dulce Cuidado S.A., and Importaciones Herrero. They held, in said entity, investment certificates No. 200027349, No. 200028337, No. 200027929, and No. 200026056, which matured on December 13, September 13, 2004, April 7, 2005, and October 7, 2004, respectively. Likewise, their companies had acquired credits No. 000300012946, No. 000300012679, and No. 000300012429 from the same Banco Elca. He points out that by the first half of two thousand four, the investments they had were approximately three hundred sixty thousand dollars ($360,000) and one hundred ten million colones (110,000,000 colones). He indicates that when rumors were heard that the bank was doing badly (which, therefore, if they were of public knowledge, his President C knew all the more reason), he decided to seek out C. so that they would redeem the certificates they had, even if they lost a percentage of the value, but he told them it was not possible because the sum was too high, telling him to remain calm because there were two or three purchase offers for the bank, one from a Mexican group and another from an American bank. The witness goes on to say, "I insist and what he told me was that we should exchange the investments for healthy credits in other companies, he offers me a credit from Inversiones Kiona for four hundred fifty thousand dollars and it had as guarantee 66% of the shares of Financorp stock brokerage and Financorp, he gave me balance sheets from the previous month, I studied them, the balance sheets reflected very pleasant information." Reasons why he ultimately decides to accept C.'s proposal, on the understanding that the owner of the Company Inversiones Kiona S.A., Mrs. E, would give him an initial down payment of one hundred twenty thousand dollars ($120,000), that his companies' credit operations would be cancelled, and, with the leftover remainder, the exchange of his investments for the credit of Inversiones Kiona S.A. would be made. All this happens on June 28, 2004. However, the next day the intervention of Banco Elca S.A. is ordered and subsequently the intervention is extended to other entities related to Corporación Elca S.A., such as Financorp Puesto de Bolsa and Financorp Puesto de Fondos de Inversión, consequently harming the interests of the H. family. Of interest is the witness E., who worked for Financorp from 1996 until August 2004, not only because she has a direct relationship with the negotiations of Mr. C. surrounding the redemptions of the H. family's investment certificates, but also because she clarifies points regarding the company Inversiones Kiona S.A. that are also important on the subject of back-to-back operations (which will be returned to in section X). She points out that on some occasion C. suggested that she buy 5% of Financorp stock brokerage, for which Bancrecen granted her a credit through a company she bought called "Inversiones Kiona S.A.", a loan that she is still paying. By 2004, the accused told her that the Venezuelans—in point X of the judgment this fact is highlighted as part of the "rescue plan" for Banco Elca—were no longer interested in buying the Stock Brokerage or the Investment Funds, and offered to sell 50% of Financorp's shares, telling her that the Bank could lend her about four hundred fifty thousand dollars ($450,000) and that a company of his, named Santa Damiana, would lend her the rest. The purchase was made in the name of Inversiones Kiona and the shares of Financorp Puesto de Bolsa and Puesto de Inversiones were given as a guarantee; in total the obligation amounted to approximately nine hundred thousand dollars. The debtor was, then, Inversiones Kiona, which did not have a checking account and had to open one in Banco Elca, and there the two loans were disbursed. Regarding the H. family's investment certificates, it is important to literally highlight the following: "at some point Mr. C. told me that he was meeting with the superintendent of banks and that he objected to the credit given to Inversiones Kiona, I asked him why if it was backed by shares and he told me that they insisted that Inversiones Kiona cancel that credit because otherwise they were going to rate it badly and provision the money, it gave me terrible anguish but I told him I couldn't pay overnight and he told me there was a client of the bank in various things who was willing to buy the credit from the bank, who wanted to see the financial statements of Financorp; I went to the bank, I met with that person F, I brought him financial statements of both companies, he told me he would think about it, he was accompanied by his advisor, I don't know if financial or legal, and very close to that Mr. C. told me that his client had agreed to sign the credit, I continued to be a debtor, to whom I owed was indifferent to me. I signed the credit with that person, the shares were released from the Banco Elca trust and went to the new creditor of Kiona." See here clearly why for C, by June 28, 2004, it was already urgent to obtain money to cancel the credit granted—irregularly—to Mrs. E. (that is, to avoid a reclassification of the loan that implied an increase in provisions), and the easiest way to obtain it was by acquiring the Herrero family's investment certificates since, otherwise, he did not have the money to do so. Regarding the credit granted on May 31, 2004, to the company Inversiones Kiona San Francisco S.A.—full legal name—whose legal representative and generalísimo attorney-in-fact without limit of sum is E., the following observation must be made. As some witnesses have pointed out, especially former employees of Banco Elca, the approval of a credit had to first pass through a credit committee that met every week and that was composed of C, J, H., the credit manager, and the head of business management. Thus, J. tells us that the cases were prepared by the business executives and first passed through a pre-committee one day before the weekly meeting; that day everything processed by the executives was brought, and the credit cover sheet with the operative part was circulated and the signatures of those present were stamped so that the credit would be approved, then the formalization process would follow. He points out that on some occasions a credit application could circulate among the different approval levels without the credit committee being convened, but that this did not mean non-compliance with procedures; in fact, in the following committee session, the respective approval minutes had to be included. He points out that by 2004 there were credits that did not pass through the credit committee and were signed only by Mr. C. or Mr. H., and sometimes by both. With respect to the Inversiones Kiona credit, he indicates that, among the irregular operations he encountered, was the formalization of a credit that the accused C. processed directly in the name of a company of E.'s, which was cancelled fifteen or twenty-two days earlier so that it would not appear in the SUGEF entanglements, and that did not go to the credit committee. In the same sense, witness M. tells us about the existence of a credit committee that studies the different credit applications and then must make a collegial decision; he mentions—as an important piece of data—the hierarchy of signatures, which could be classified as A or B; in his personal case, his was a B signature and he did not have the authority to approve a credit by himself; the accused C, Mr. J., and Mr. H., according to his version, were class A signatures. Thus, a credit could be approved with one A signature and one B signature, with two A signatures, or three A signatures according to the regulations, but, in fact, one A signature was enough, "more so if it came from Mr. C. or Mr. H., it is very likely that it would be done; in a Bank, if the person of highest rank orders it, one cannot oppose if they don't want to be fired." Witness H., in his extensive statement, also refers to the credit committee and the signatures required for the approval of a credit; he stated: "The credits were submitted to the Credit Committee after analysis by the respective area, the committee met on Tuesdays, it was composed of officials of a certain level of the bank including Z, F, the collection manager, the credit manager, account executives, E, A, and myself, the credit documents were signed approving or rejecting. Normally there were type A and type B signatures and I believe even type C because the committee sometimes did not meet in full and two A signatures and one B or three B and one A were required; right now I don't remember what the mix was, but there was a composition to approve credits. All committee members had participation to sign; mine was type A. It is not necessary for everyone to be together to approve a credit; sometimes they were approved as a circulated committee, going one by one to those who were present. Normally it was the account executive who circulated it, or the credit manager for corporate credits. Once signatures were collected, the file returned to the business or personal credit department and then formalization was coordinated." Again, witness M. refers to the credit committee, indicating that it met every week and a study was conducted, it was discussed whether to approve or not. As for the members, he mentions C. and J.; in said committee, a cover sheet with all the details of the operation was made, but there were credits that, despite not meeting the requirements, were approved by simple order of the Presidency or Management because they said that "they were important clients and that they would later collect the documents." These were credits that did not meet the minimum requirements, that sometimes had no guarantee. He indicates that the credit category is assigned by the financial analyst, but in those credits the category already came assigned on the cover sheet. Like the previous witnesses, he alludes to the circulated committee in relation to credits that were urgent or, due to the type of client, were processed with a lack of signatures, which would later be collected. We also have the statement of E., a former director of the Bank who indicated: "I did have knowledge of credits that were not approved as I indicated, it could be due to the urgency because the committee met once a week, it seems to me it was called 'circulated committee,' a credit cover sheet was requested that circulated among middle management of the bank. With a single signature, I believe one could not speak of a circulated committee; I believe there was a regulation on the number of signatures a document had to carry." He points out that there had to be a combination of signatures, for example, that of the credit manager, plus that of the credit head and Mr. C. For his part, Mr. Oscar Rodríguez, in his capacity as Superintendent of financial activities, regarding the topic of the credit granted to Inversiones Kiona San Francisco S.A., stated that this operation denoted high risk because, according to the payment capacity analysis, this company was left with an indebtedness of 80% and could only pay interest and not the principal (for it must be remembered that the loan given to E. so that she could make the acquisition was "meantime" she could locate investors to make the acquisition of those companies, according to her). The superintendent added that the credit approval policy is specific to each entity, that SUGEF cannot impose it, but that it does require that clear policies exist, that according to the bank's internal regulations a combination of signatures was required for approval, and that, in the case of Banco Elca, sometimes that requirement was not met. The statements brought to collation clarify for us what the policy to follow for the approval of a credit was, which, in the case of Inversiones Kiona San Francisco S.A., was not followed, since said operation under No. 300012945 was approved solely by the accused. Remember that it was C. himself who tells Mrs. E. that the Bank could lend her four hundred fifty thousand dollars ($450,000) and that a company of his—Santa Damiana—would lend her the rest so that she could buy 70% of the shares of Financorp, an operation that is cancelled on June 29, when he had already acquired the H. family's investment certificates. What has been narrated thus far allows us to outline two independent facts: on the one hand, the irregular approval of the credit in favor of Inversiones Kiona S.A. carried out by the accused, a fact that—as will be indicated—is one more of those that make up the crime of fraudulent administration for which he is being indicted, and, on the other, the early redemption of the Herrero brothers' investment certificates, without any study of the impact this had on the diminished finances of Banco Elca S.A. at that date, with the aim of, with that money thus acquired and knowing the information of limited circulation about the severity of the finances of the entity he directed, being able to cancel that credit granted a few days before. The legal consequences of this, as well as of the other redemptions, will be analyzed forthwith." Thus, it is clear that the maneuver developed by A. was preceded by an anomalous action on his part, such as the granting of a credit to Mrs. E., to whom he had offered to sell 50% of the shares of Financorp. When she told him she had no money, he offered to give her a loan of 450,000 dollars from Banco Elca and the rest from a company of his, named Santa Damiana. The credit, contrary to the bank's internal regulations, was granted individually by the accused to Inversiones Kiona de San Francisco, which remained as debtor and gave the shares of Financorp as guarantee. After this, the accused needed to cancel the irregular credit he had granted to this latter company, for which he made use of the H. family's certificates. With that objective, when the holders of those certificates appeared to request their redemption, A. told them it was not possible, because it would affect the cash flow (contrary to what the appellant now argues). As an alternative, and knowing full well the precarious situation of the banking entity from the sources the ruling enumerates, he offered them, in exchange for the certificates, a credit that the Bank had for four hundred fifty thousand dollars with the Company Inversiones Kiona San Francisco S.A., which had as a collateral guarantee thirty-five percent (35%) of the shares of Financorp Puesto de Bolsa and thirty-five percent (35%) of the shares of Financorp SAFI, a deal with which they agreed. It was when the H. brothers came to the bank to deliver the endorsed investment certificates that A. presented them with the notes requesting redemption, despite having previously told them it was not possible. Later, the accused himself ordered the redemption using said notes and cancelled the aforementioned irregular credit with the proceeds. The next day, both the bank and the Financorp companies were intervened. In summary, up to this point, it is established that A. used privileged information he had about the situation of the stock market securities of Elca and Financorp, as well as their issuers. Now, the question is whether, in pursuit of an unjust benefit, said accused proceeded to acquire or transfer securities of those issuers. The answer is positive. To cover up his anomalous actions, he had to cancel them before they came to light, especially when the intervention of Banco Elca was imminent. To do so, as the Court said, "…the easiest way to obtain it was by acquiring the Herrero family's investment certificates since, otherwise, he did not have the money to do so." In other words, he acquired the investment certificates of the H. Brothers, the very same ones he had previously refused to redeem, since that act was detrimental to the cash flow; but which now, once he had obtained them, he proceeded to exchange and cancel the loan that he himself had granted to Mrs. A.'s company so that she would buy shares of other companies of his (of A.'s). In summary, there was indeed a use of privileged information under the terms of the legislation referred to above. The ground is without merit.

**VIII.-** In the following ground, it is reproached that when the use of privileged information is attributed, it is required that this be a concrete fact, and not a supposition. In the case of the H. family, the information was not privileged, since they requested the redemption of the certificates when they heard a rumor about the bad situation of Banco Elca, such that it was of a public nature. The defender says that nowhere in the entire ruling is it stated what information is considered privileged. In that sense, he transcribes some paragraphs of the resolution, from which he affirms that it cannot be inferred that one was facing privileged information. What happened was that the H. family, faced with comments about the failure of Banco Elca's conversations with a group of Venezuelans for them to buy it, preferred to exchange their certificates, given that the alternative offered by the accused of acquiring a credit from a company that showed no financial problems was a fully legal deal.

**IX.-** In the ninth argument, the defense counsel states that in proven fact 42, the Trial Court took as proven the losses for the bank as a result of the loan granted in favor of the company Inversiones Tres Mil Sociedad Anónima, owned by J. Then, using various legal entities, the lower court held, A. managed to extract the nine hundred thousand dollars from that loan. The defense counsel says that asserting that the bank was “looted” for that amount contradicts proven facts 47 to 56, which record that such funds were pooled in the operating account of Bosques de Ayarco sociedad anónima, and returned to the bank. *“What happened, as can be seen, if the rules of logic and administration are applied, is not a looting but an accounting operation, with the purpose of reducing the delinquency of the Bank's portfolio…”*, argues the complainant. Upon realizing that a loan loses its guarantees, it is preferable to give it a little more time, so that it does not become a loss. The new operations, consequently, having new terms, allowed the Bank's portfolio not to deteriorate so much; but they did not constitute a loss, which only came from the loan granted to Inversiones Tres Mil. To think otherwise is to accept G.'s version that F. lent his companies to A. so that he could obtain money. On the other hand, regarding the irregular loans processed in the name of Mr. B., the loss arose from the first loan that was given to him with complete normality (after which there was no disbursement), not in the two extensions authorized by the accused and in which, at the end, the loan appeared in the name of Santa Damiana sociedad anónima, an entity belonging to the accused. In summary, there was no misappropriation of money by A.. **The objection is not admissible.** Once again, given the profusion of transactions and the overall complexity of the situation, it is appropriate to transcribe what the judgment established in this regard. From folio 17346 to 17358, the Judges indicated: *“It was alleged that on April 22, 2003s (sic) J. submitted to Banco Elca S.A. a loan application on behalf of its company Inversiones Tres Mil S.A. for the sum of eight hundred twenty-five thousand dollars ($825,000.00). As collateral, four certificates of deposit were offered that the investor, Michael Andrew Carabetta, held in Banco Elca S.A. in the name of Inversiones Savinelli S.A., representing the total sum of one million dollars ($1,000,000.00) and maturing on July 21, 2003. Upon maturity of the certificates, these were renewed for certificates No. 000200025319 and No. 000200025320 each worth four hundred twenty thousand colones, which would mature on July 21, two thousand four; however, before their maturity, they were redeemed early, allegedly by A., leaving the obligation contracted by Inversiones Tres Mil without collateral. The loan was approved under operation No. 300011698; on April 29, 2003, an initial disbursement of eight hundred thousand dollars was made payable to F. as representative of the company Inversiones Tres Mil S.A. These facts were the subject of a conciliation in case TP 06-0027-515 of the Criminal Court of this circuit, so they will not be heard or judged in this judgment but serve as context to determine what occurred afterward. In order to cancel the loan approved for Inversiones Tres Mil S.A., it was alleged and proven that C., between February twenty-fifth and twenty-sixth, two thousand four, unilaterally approved—in his capacity as the top executive of Banco ELCA S.A.—five direct loans in favor of the companies Punta Palmira PP S.A., Bauza Casa Grande S.A., Por Larrañaga S.A., La Gloria Cubana S.A., and Mobiliaria Activa Dos Mil Ocho S.A., the same entities in which C. appeared as their founding partner, president, and unlimited general agent, and to which he granted loans totaling the sum of nine hundred five thousand dollars ($905,000.00); once the respective cashier's checks were issued in the name of each of the companies, they were credited to an account called "cashier's checks," and subsequently reversed by A. to proceed to issue five other cashier's checks for the same amount but in favor of the Society Bosques de Ayarco, an account it held at Transamerica Bank & Trust Ltd. (offshore of Banco Interfin S.A. in the Bahamas); these new checks are deposited into an account called "sundry creditors." On February 27, 2004, the company in question issued check No. 3260 for eight hundred eleven thousand eight hundred thirty-five dollars and sixty-seven cents ($811,835.67) in favor of the company Inversiones Tres Mil, which is credited to the account of the company Grupo Prisma Asem S.A. (owned by J.) at Banco Elca. That same day, Banco Elca S.A. issued Debit Note No. 77732 from the current account of Grupo Prisma Asem S.A., to be applied to the cancellation of Loan Operation No. 300011698 in the name of Inversiones Tres Mil S.A. The five loans that C. granted on February twenty-fifth and twenty-sixth, 2004 to the aforementioned companies were reclassified by SUGEF as "uncollectible or of extremely low recovery value" to the detriment of Banco Elca S.A.* ***VIII.1 Probative analysis regarding C:** It should be noted that the evidence we will now examine in this section, especially the testimonial evidence, also relates to the other topics that have been analyzed and will be analyzed in other sections, hence it may seem repetitive when in reality it is not. On the contrary, it is evidence that, coming from former employees of Banco Elca, covers various topics of the accusation that have been proven. From the foregoing, the court manages to determine five fundamental circumstances: (i) the legal representative and unlimited general agent of the company Inversiones Tres Mil S.A. is Mr. J. On April 28, 2003, operation No. 300011698 was approved in favor of this legal entity for the sum of eight hundred twenty-five thousand dollars ($825,000.00), with the loan collateral being several certificates of deposit that Mr. Michael Carabetta held in the name of Inversiones Savinelli S.A. for the total sum of one million dollars; (ii) the accused C., as Executive President and owner of Banco Elca, between February 25 and 26, 2004, unilaterally approved five loans for a total amount of nine hundred five thousand dollars ($905,000.00) in favor of five companies controlled by him (see volume XI folios 4731 and following, 4749 and following, 4764); (iii) the money for these loans came from Banco Elca's funds, being finally deposited into an account in the name of Bosques de Ayarco S.A. that the accused A. held at Transamerica Bank & Trust Ltd. in the Bahamas; (iv) with that money, A. canceled the loan granted to the company Inversiones Tres Mil S.A., owned by J.; (v) all the loans to the five companies were declared by SUGEF as "uncollectible." The foregoing has been proven thanks to the statements of the witnesses we are about to examine. However, beforehand, it is important to remember that Banco Elca had a "credit committee" that, prior to any loan approval, studied the applications and verified that the required conditions were met, all of which was summarized in what the witnesses have called "credit file covers." Thus, we highlight, for example, the statement of H. when he says: "The loans were submitted to the Credit Committee after analysis by the respective area; the committee met on Tuesdays, it was composed of officials of a certain level from the bank including Z, F, the head of collections, of credit, account executives, E, A, and I; the credit documents were signed approving or rejecting. Normally there were type A and type B signatures and I think even type C because the committee sometimes did not meet in full and two A signatures and one B or three B and one A were required; right now I don't remember the exact combination, but there was a composition for approving loans. All committee members had signing authority; mine was type A. It is not necessary for everyone to be together to approve a loan; sometimes they were approved via a circulated committee, going one by one to those who were present. Normally it was the account executive who circulated it or the credit manager for corporate loans. Once the signatures were collected, the file returned to the business or personal credit department and then formalization was coordinated." In the same sense, J., when he points out that the credit committee had to make decisions on the loan applications submitted; that the cases were prepared by business executives who, one day before the Committee meeting, took them to a "pre-committee." Regarding the loan file or cover page, he tells us: "A loan file, materially, has the client's background, the application, the investigation that must be done, the bank reference data, from SUGEF, the contribution of financial statements, cash flows, projections, feasibility studies, the analysis that a bank office performs on the file, endorsed by a financial analyst who gives the recommendation. It contains the collateral part, and on the cover page, a summary is made. A simplified copy was in the disbursements area." This witness was shown evidence binder No. 33 regarding the formalization of the Punta Palmira S.A. loan and said he could not describe it as a loan file because it did not meet the characteristics; there was no financial information, it did not indicate whose the fiduciary guarantee was, it did not indicate who provided the endorsement, there is a cover page approved by Mr. H. and Mr. C., but the other cover pages bear no one's signature. The same applies to evidence binder No. 31 corresponding to formalization B, which is a "template" used as a credit file cover page to take to the credit committee. Another testimony on this point is that of M., when he recounts that the credit committee studied the cases and then made a collective decision, with a hierarchy of signatures classified as A, B, or C. Likewise, Mr. M. points out that in the credit committee, minutes were kept of the approved loans, and then a credit file cover page was made containing all the details of the operation. An important aspect is that regarding the so-called "circulated signature committee" mentioned by a large part of the witnesses. For example, Mr. J. told us that "a loan application could be circulated to the different approval levels without the credit committee being assembled, depending on the needs. That means it did not go before the full committee for approval, but it did not permit any non-compliance with the procedures SUGEF establishes for loan approval, and at the next meeting, they were included in the approval minutes." Mr. H., in this regard, indicated that all participating members of the credit committee had to sign, but that it was not necessary for everyone to be together to approve a loan; sometimes they were approved as a "circulated committee," meaning the account executive would circulate the document, and once all signatures were collected, the file returned to the business or personal credit department, and then formalization was coordinated. M. and E. also refer in their testimonies to the circulated committee, the former saying that there were urgent loans processed with missing signatures, which were collected later, while Mr. E. tells us that it was the responsibility of the credit executive, as the client's representative before the bank, to circulate the respective loan file. All of this is pertinent to highlight that a loan could not be approved just like that; rather, it necessarily had to be reviewed by a credit committee, that is, by each of its members, who, according to the witnesses, were C. himself, J., the heads of collections and credit, the account executives, E., and H., and that, likewise, these documents required being signed by all of them, either at the moment of approval or subsequently through the "circulated committee" process, which did not exempt those loans granted via circulation from being incorporated into the minutes at the next Committee meeting, something that did not happen with any of the loans discussed here, according to such witnesses. The existence of different classes of signatures of committee members, required for the approval of a loan and conditioned by the amount to be approved, is important. For example, a Class A signature was that of the Executive President, i.e., Mr. C., Mr. H., and that of J.; a Class B signature was that of J., the business manager, the credit manager, and the head of financial analysis, determining that there necessarily had to be a mix of signatures for the approval of a loan, or several type A, but never just one, according to the manuals, although—as previously indicated—A. had managed a practice against them by approving loans with his signature alone. The foregoing can be corroborated by the testimonies already cited. We now turn to the matter concerning the approval of loans in favor of companies owned by or related to the accused C., all duly registered with the National Registry, Commercial Section, as indicated by their legal representative certifications in the case file. Thus, on February 25, 2004, C. approved a direct loan for Punta Palmira PP S.A. for two hundred five thousand dollars ($205,000.00), which—after deducting the corresponding commissions—gave rise to Banco Elca S.A. Cashier's Check No. 15045 for two hundred three thousand four hundred fifty-two dollars and fifty cents ($203,452.50); on February 25, 2004, he approved a direct loan for Bauza Casa Grande S.A. for one hundred fifty thousand dollars ($150,000.00), which—after deducting the corresponding commissions—gave rise to Banco Elca S.A. Cashier's Check No. 15046 for one hundred forty-eight thousand eight hundred sixty-five dollars ($148,865.00); on February 25, he approved a direct loan for Por Larrañaga S.A. for one hundred seventy-five thousand dollars ($175,000.00), which—after deducting the corresponding commissions—gave rise to Banco Elca S.A. Cashier's Check No. 15047 for one hundred seventy-three thousand six hundred seventy-seven dollars and fifty cents ($173,677.50); on February 26, 2004, he approved a direct loan for La Gloria Cubana S.A. for one hundred ninety thousand dollars ($190,000.00), which—after deducting the corresponding commissions—gave rise to Banco Elca S.A. Cashier's Check No. 15049 for one hundred eighty-eight thousand five hundred forty-nine dollars and seventeen cents ($188,549.17); on February 26, 2004, he approved a direct loan for Mobiliaria Activa Dos Mil Ocho for one hundred eighty-five thousand dollars ($185,000.00), which—after deducting the corresponding commissions—gave rise to Banco Elca S.A. Cashier's Check No. 15048-4 for one hundred eighty-three thousand five hundred eighty-seven dollars and eight cents ($183,587.08); it must be said that all these loans were approved unilaterally by the accused C., without observing the established procedures as already explained. In this regard, J. indicated that in 2004, there were loans that had not followed the procedure, as operations occurred that did not go through the credit committee and were signed by the accused C. or Mr. H. He says he did not realize when they were approved but later learned that those operations had some degree of connection to C., this through some minutes of A. where various companies with loans at Banco Elca were discussed, and that they were companies of the accused A. Evidence binder No. 32 was shown to him, and he observes that, for example, in that operation, it is not specified who provided the fiduciary guarantee; the loan in favor of the company Por Larrañaga S.A., visible in evidence binder No. 30, is in the same situation. Witness M. points out that there were credit operations that did not pass through the credit committee and had no analysis; they only came approved by Mr. C., Mr. H., or Mr. J. Witness M. states: "Not all loans met these steps; there were loans that were approved by order of the presidency or management; they said they were important clients and that they would collect the documents later." In his testimony, he points out how some loans sometimes did not even have collateral, and that some were direct loans in the name of C.'s companies, operations that were not known to the credit committee, the Board of Directors (Junta Directiva), nor to SUGEF, as should have been done with operations related to bank officers or shareholders, according to what H. and E. said. The loans to Punta Palmira and La Gloria Cubana S.A. were processed by management and approved by C.; they were not reviewed by the credit committee; the first operation was not canceled. In the same vein, he mentions the companies Por Larrañaga and Bauza Casa Grande, where collateral was also not provided and were not canceled either. As an interesting detail, he tells us that upon perceiving the disorder, he brought it to the attention of the accused A., especially concerned about SUGEF arriving, but A. told him not to worry because he would contribute his own guarantees. The statement by Mr. O. is noteworthy; following the respective studies carried out by the SUGEF inspectors, they found a series of irregular loans. He states in these terms: "A series of loans occurred whose risk profile was high, approval processes did not align with the bank's own policies; several people participating in approval; the study of repayment capacity was lacking; several loans were arranged through C.'s management; the process did not match; they were granted to companies related to him or through his management, without analysis of repayment capacity…" He points out that the loan approval policy is specific to each entity; SUGEF cannot impose it, but it can require that clear policies exist. In the case of Banco Elca, three signatures were required to approve a loan, and in some cases, this was not met; there was no payment plan, or payment accommodations without any support. For his part, C. indicates that, according to the reports received, it was determined that some loans related to A. were in default, had been extended without technical studies, there was no financial information on the debtor, they had been approved by only one person, contrary to policies, etc. It is evident from the foregoing that practically the majority of Banco Elca's employees, according to the roles they performed, were able to verify the irregularity in the approval of loans for the aforementioned companies of C., but precisely because of their hierarchical relationship, there was little they could do when they detected an irregularity of that nature; irregularities that were effectively determined by the SUGEF officials who participated in the respective analysis and which is also reflected in SUGEF report 2520-2004, which, as relevant to our point, states: "As a result of the study conducted on the loan portfolio as of May 31 of the current year, it was determined that the Bank has granted loans to companies linked to Mr. C. in the amount of 871,449.8 thousands, equivalent to $2.0 million. Through the review of the loan files of these debtors, it was observed that Mr. A. participated in the approval of at least five loans granted to this group of companies, and in the cases of Inversiones Kiona San Francisco S.A. and Punta Palmira S.A., only the approval of Mr. C. is recorded, which goes against sound banking practices and what is established in that Bank's credit policies, which state that for Credit Committee agreements to be firm, three A signatures, or two A signatures and two B signatures must be present"*.

As a relevant fact, the same report indicates that the amount loaned to that group of companies exceeds the limit of 20% of capital and reserves; likewise, some of those loans showed significant delays and were subject to extensions or restructurings without the technical justifications for this appearing in the respective case files (expedientes). The defense of A. has alleged that in those cases, the accused intended to initiate a circulated committee and that if this did not occur, it was due to the failure of subordinate officials to perform their duties. However, this assertion is not admissible. It should be noted that this was not an attempt to initiate a circulated committee, but rather that A. signed and sent or gave the documentation to the operational officials and not to an executive to collect the remaining signatures. In fact, M. and S. state that if there was opposition to these steps, the loan would appear approved in the system the next day. Moreover, A. never pointed out, at the next Credit Committee session, that loans that had started as circulated (according to his defense claim) were missing from the minutes, which he could have done if that were the real situation—which, according to the foregoing, it was not—and given the command he had over the bank's affairs. Having accredited the manipulation of the loans by C., for the benefit of his companies, it becomes necessary to examine what maneuver he employed to divert attention from them. It turns out that once C. approves the respective loans and issues checks for the amounts of money corresponding to each company, he subsequently reverses them and issues five other checks for the same amount but in favor of Transamérica Bank & Trust Ltd. into an account of the company Bosques de Ayarco that A. —on behalf of a company he controlled— held at that Bank. On February 27, 2004, this company issues a check for eight hundred eleven thousand eight hundred thirty-five dollars and sixty-seven cents ($811,835.67) in favor of the company Inversiones Tres Mil S.A., money that is credited to an account of the company Grupo Prisma Asem S.A., owned by J.; in this way, Banco Elca issues a debit note for that company and it is applied to cancel the loan that the accused C. had granted in favor of Inversiones Tres Mil. In this way, the accused C. manages to cancel the loan that had been granted to Inversiones Tres Mil S.A. (see in Volume V, pages 1945, 1949, and 1952, and reports 451-DEF-454-04 and its addendum 24 DEF-509-04/05). **VIII.2 Evidentiary analysis in relation to J:** In relation to the accused J., the question we must ask ourselves is whether he indeed had any participation in the approval of the loan in favor of Inversiones Tres Mil, an entity of which he was the legal representative. The testimonial evidence, cited so many times, places Mr. J. within the hierarchy of Banco Elca, along with C. and H. They had the authority to approve loans, of course, subject to prior observation of the established procedures, which does not imply that he necessarily gave his approval on this occasion to the loan for Inversiones Tres Mil S.A. The accusatory piece establishes that on April 22, 2003, J. applied for a loan from Banco Elca S.A., for an amount of eight hundred twenty-five thousand dollars ($825,000.00) in the name of the company Inversiones Tres Mil S.A. The accused F., in his investigative statement (declaración indagatoria), specifically refers to this matter and, upon reviewing evidentiary file No. 36, notes that it contains a series of anomalies, again requesting that a graphoscopic examination be performed on the "loan application" document attached to the evidentiary file. On this particular point, the trial had the experts J.P. and M.O., who, upon examining page 26 of evidentiary file No. 36, reached the conclusion that the signature preceding the loan application dated April 22, 2003, was not made by J. The foregoing implies, then, that it is not true, as stated in the prosecution's accusation, that the accused J. applied for a money loan in favor of his company Inversiones Tres Mil S.A. Regarding the approval of the loan, we have Report No. 451-DEF-454-04, which states: "The loan for Inversiones Tres Mil S.A. was approved solely by H. as General Manager and E. as a board member, so the procedure regarding the number of signatures established at Banco Elca S.A., in terms of the quantity and quality of signatures, was not followed." On this particular point, it must be noted that both Mr. G. and Mr. E., when they gave their statements, were emphatic in stating that they never approved that loan, and the signatures preceding the respective document are not theirs. From what has been stated, and regardless of whether Mr. H. did or did not sign the approval of the loan in favor of Inversiones Tres Mil S.A., it is concluded that the accused J. not only did not sign the loan application but also did not participate in its approval. On the other hand, the doubt arises as to why, then, the money resulting from the loans approved by C. in favor of the companies Punta Palmira, Por Larrañaga, Bauza Casa Grande, Mobiliaria Activa 2008, and La Gloria Cubana, was finally credited to Banco Elca account No. 122006481 belonging to the company Grupo Prisma Asem S.A., whose legal representative is J. The answer to this question is provided by H., who states that "J. was foolish enough to lend the name of his companies to help C., and checks were issued to him to cover some overdraft or some problem." Another aspect the witness highlights when shown evidentiary file No. 91, pages 148 and 149, is that those documents, signed by him, are made out in the name of J. and it is one of the cases where J. lent his companies because Mr. C. needed money. He literally stated, "Mr. J. was not paid with checks from Bosques de Ayarco; if it was drawn from that account, it is because Mr. C. needed the cash for something." These affirmations answer the question of why, even though J. was not in the country on February 27, 2004 (see immigration movements and passport of the cited accused), the money was still drawn in favor of Inversiones Tres Mil S.A. One aspect we must not overlook and which is related to the foregoing is the purpose pursued by C. when he ordered the sum of eight hundred eleven thousand eight hundred thirty-five dollars and sixty-seven cents ($811,835.67) to be deposited in favor of Inversiones Tres Mil S.A. into the account of Grupo Prisma Asem S.A. It should be recalled that the loan granted to the company Inversiones Tres Mil S.A. was initially guaranteed by four investment certificates (certificados de inversión) from Sociedad Inversiones Savinelli (in conciliation proceedings) and that at a certain point, the accused C. redeemed them early, thus leaving the Inversiones Tres Mil loan without a guarantee. From that point on, that is how, in an "intelligent" or skillful manner, C. sought to obtain the money to cancel that loan and what better way than through the granting of loans, whose funds came from the coffers of Banco Elca, to five companies he owned (see Volume XI, pages 4731 et seq., 4749 et seq., 4764), a point already explained above. For better understanding, it is worth returning to what was stated by M., a supervisor from SUGEF who participated in the intervention process of Banco Elca: "Inversiones 3000 was created from the reclassifications of several debtors (Punta Palmira, Bauza Casa Grande, and others). Those operations were established under the protection of five checks issued in favor of those companies, but the treasurer who worked for Elca, who was J., told J. that those checks had been substituted by other checks, and this was revealed by the investigation, and they were for the same amount. They went out to an account through Banco Interfin to Transamérica Bank, which was Interfin's offshore bank; they partially return to the bank, return to an account of Grupo Prisma, represented by J., and cancel the operation of Inversiones 3000, which was J.'s. In two of the five cases, the checks were signed by C. In report 2520, the five debtors are included, and I did not participate in that study, but I do remember having seen in that report that the five were reclassified to category E." That is, there is evidence that determines that F. lent his accounts, that the signature appearing over his name on the loan application was not made by him, and those who supposedly signed approving the loan deny that their signatures are theirs either. At the time of the disbursement of the money, F. was not in the country, so there are signs of credibility for his exculpatory statement, as will be addressed forthwith." In sum, if it were, as the appellant claims, a simple banking operation aimed at prolonging the life of a loan at risk of becoming uncollectible, the situation certainly would not have the gravity attributed to it. What happens is that, contrary to what was stated by the defense counsel, the succession of loans did not occur to try to mitigate the consequences of a bad decision, but rather of a misappropriation (sustracción). Indeed, as the lower court (a quo) explains at length, the subsequent solitary conduct of A., who authorized said covering loans, apart from the circumstances under which the original loan to Inversiones Tres Mil was managed, made it clear that from the beginning, the accused intended, using this company of F. and E., to take possession of eight hundred thousand dollars that he knew would not be collected, since the guarantees would be redeemed early by A. and the account would be settled using other loans to five of his companies that he himself authorized and which, as expected, had no payment capacity whatsoever. That is to say, that loan, which the defense counsel claims was regularly granted, later turned out to have been neither requested by F. and E. (who was, by then, not in the country but lent his companies to the accused for his maneuvers), nor approved by the other officials who were supposed to do so (page 17356). At the end of the whole scheme, A. had unilaterally approved loans for nine hundred five thousand dollars, which had indeed left the Bank's accounts. It is for these reasons that said actions, together with those relating to Mr. L., were deemed to constitute a crime of fraudulent administration, by virtue of which a sentence of eight years in prison was imposed on the accused. Regarding this case, not only do the same irregularities appear in the granting of loans that were fictitiously given to Mr. B., who had not applied for them, but those fraudulently granted funds left the Bank. In this regard, the ruling states: "In relation to L.'s loan, it was charged and proven that on November 30, 2001, the Credit Committee of Banco Elca S.A. approved the granting of credit operation No. 30009271 for one hundred one thousand eight hundred fifteen United States dollars and thirty-one cents ($101,815.31) in his favor to cancel three previous operations that the same debtor had with Banco Elca S.A. and which were in arrears, cancellations that were, indeed, made. This operation was guaranteed with a second-degree mortgage guarantee on B.'s dwelling, which also sustained a first-degree mortgage in favor of Banco Interfin. This was executed through a mortgage foreclosure proceeding on June 19, 2002, with Banco Elca S.A. being awarded the property. However, credit operation No. 30009271 was not honored by Mr. B., with a credit entry recorded for five hundred seventy-two dollars and seventy cents ($572.70) on December 11, 2001, corresponding to the remaining balance of the same operation after canceling the overdue operations that said gentleman had with the bank, and an amortization payment of five thousand three hundred fifty-one dollars and sixty-five cents ($5,351.65) on May 31, 2002 (which was used only to cancel interest on operation 30009271). The money for the amortization originated from a fictitious loan appearing in the electronic system of Banco Elca S.A. under operation No. 300010099, granted to Broitman Feinzeilber who, as he stated in the hearing and his account being credible, never applied for such financing. Similarly, on July 31, 2002, in the credit records of Banco Elca S.A., the granting of credit operation No. 300010416 for one hundred fifty-six thousand dollars 'in favor' of L. was recorded, for the purpose of financing the payment of the property acquired by Banco Elca through the auction held on June 19. Said loan was fictitiously created since it was not applied for by said debtor. On October 30, 2002, the three indicated operations, for a total amount of two hundred seventy-four thousand four hundred thirty-four dollars and seventy-four cents ($274,434.74), without any justification, were accounted for as settled against a 'suspense account' No. 184-02-2-00-04, and from then on, a series of irregular accounting movements of this balance began. On November 21, 2002, another fictitious credit operation was created, No. 300011029 'in favor' of B. for $274,572.89, which was approved by C. and J. (facts for which he is not being tried). In turn, this operation, i.e., No. 300011029, is canceled on December 23, 2002, by credit operation 300011260 granted at Banco Elca S.A. in favor of Sociedad Inversiones Santa Damiana S.A., without it being possible to determine who approved such a loan. The company Santa Damiana has the accused C. as its president, representative, and general power of attorney (apoderado generalísimo) without limit of amount. Operation 300011260 was granted for one year with a maturity date of December 23, 2003, but was unjustifiably extended by C. for three more months from its maturity date, and on March 31, 2004, he extends it again for three more months under the same irregular conditions. As of that date, said operation is overdue and there is no possibility of proceeding with its enforced collection because as 'guarantee', there is only a photocopy of a 'promissory note' for two hundred eighty-seven thousand nine hundred seventy-eight dollars and twenty-four cents ($287,978.24), supposedly subscribed and endorsed by 'the representative' (on that date) of said company, V., secretary of the Castro Garnier Law Firm, and presumably guaranteed by Mr. A., all of whom reject the legitimacy of said document. The only amortization recorded in the payment history of this loan corresponds to the credit entry made on July 28, 2003, for an amount of one hundred fifty-nine thousand nine hundred ninety-two United States dollars applied to principal ($141,657.37) and interest ($18,334.63) of said debt, leaving a pending balance of one hundred forty-six thousand three hundred twenty dollars and eighty-seven cents ($146,320.87), which, as of January 5, 2005, amounted to the sum of one hundred sixty-two thousand eight hundred seventeen dollars and twenty-six cents ($162,817.26), corresponding to the principal balance, plus interest and overdue balance, which the accused A. has not paid to date, to the detriment of Banco Elca S.A. **IX.1.- Evidentiary analysis:** During the days of the adversarial proceedings, sufficient testimonial and documentary evidence was received that ultimately corroborates the Public Prosecutor's Office's hypothesis. Again, the observation is made that many of the witnesses we will now examine have already been cited in other consideration clauses (considerandos) when referring to specific topics. From the foregoing, it can be determined: (i) on November 30, 2001, the Credit Committee of Banco Elca (see evidentiary file 34) approves operation No. 30009271 for L. for $101,815.31. Said loan was used to cancel three credit operations he had with Banco Elca. Operation No. 30009271 was not paid by Mr. Broitman; only two credit entries were made, one of them for interest amortization for $5,351.65; (ii) as of July 31, 2002, credit operations No. 300010099 and No. 300010416 had been fictitiously created in the name of Mr. B.; (iii) on October 31, 2002, the real operation and the two fictitious ones were accounted for as settled. With the balance of these operations, operation No. 300011029 was fictitiously created, which Mr. L. also had not applied for; (iv) credit operation No. 300011029 is canceled on December 23, 2002, through operation No. 300011260 granted by Banco Elca in favor of the company Santa Damiana S.A., whose representative and general power of attorney is C. This operation was extended twice by the same accused and has not been paid to date…. The testimonial evidence cited summarizes the maneuver carried out by the accused A. when he proceeds to approve credit operations No. 300010099, No. 300010416, and No. 300011029 that Mr. L. had fictitiously applied for, which B. himself corroborates by stating that from 2002 onwards he never again made loan applications to Banco Elca. It is also highlighted how A. grants a loan, No. 300011260, to the company Santa Damiana, which he owns, with the sole purpose of canceling the fictitious operations. Not content with this, the accused A., without any justification and bypassing all procedures, proceeded to extend the loan of the cited company twice; all of this led to SUGEF reclassifying that loan to risk category E, causing great harm to Banco Elca (see Volume V, page 1705)." (pages 17365-17372). Then, as was proven in the ruling, after Banco Elca was awarded B.'s house, which settled his debt with the Bank or made it marginal, A. "granted him" an amortization loan for $5,351.65 and another for $156,000 to finance the property acquired by the Bank, which he never applied for. Later, for an amount of $274,434.74, another loan was granted that canceled the real operation and two fictitious ones that left the Bank. This, in turn, was accounted for as settled by another fictitious operation that concealed that fraud, consisting of another loan falsely claimed to have been requested by B., this time for $274,572.89. Then, this was canceled by a credit operation for $287,978.24 granted by A. to the corporation (sociedad anónima) Santa Damiana, belonging to the accused, which provided a promissory note (whose original was not found), signed by two persons who rejected its legitimacy. This last operation was unjustifiably extended by the defendant on two occasions for three months each, confirming his participation in the criminal plot. In the end, after applying the payments registered in the account, $162,817.26 of the principal balance remained uncovered. Thus, as is evident, it is not true that the only outflow of funds occurred when the loan was granted to Mr. Broitman Feinzilber, but rather that after this, disbursements occurred in a crescendo of misappropriations (sustracciones) that, on the one hand, attempted to hide the previous irregularities, and on the other, deepened the defrauding of the banking entity's assets. The ground for appeal is without merit.

**X.-** In the tenth ground for appeal, it is argued that it is impossible to carry out a fraudulent administration against oneself, since the owner of Banco Elca was the accused A., who exercised ownership over that entity through a series of companies that were also his. To confirm this, the defense counsel resorts to transcribing some excerpts from the judgment where this was taken as true. Due to this situation, he indicates, those harmed by a fraudulent administration are the company's shareholders, who in this case do not exist, but rather it is the defendant himself. Regarding these irregular deposits, in which a transfer of property occurs in favor of a bank, Costa Rican legislation is sparse. One must take into account, he adds, that in the case before us, the Court considered the situation of the savers and investors who had their funds deposited in such an entity. This money, however, is incorporated into the bank's assets. The complainant then makes a disquisition on the nature of regular and irregular deposits, which are characterized by the depositary's duty, not to keep the exact same item (as in the case of a regular one), but rather an equivalent amount of the same quality and kind. This creates a "double availability," whereby on the one hand, the depositary becomes the owner of the asset, and the depositor can withdraw it in turn. A consequence of this is that the loss of the assets is suffered by the depositary, who acts as their owner. Therefore, since A. was the owner of the bank in question, the assets received in deposit were his property, and he could not administer them fraudulently to his own detriment. **The reproach is not admissible.** The appellant's argumentation stems from a fallacy or a poor understanding of the legal concept he is discussing; namely, that upon becoming the owner of the deposits, the administrator who is the depositary or who owns the entity receiving them can dispose of them at will, without any liability. To begin with, it must be clear that when it is said that in irregular deposits, the depositary undertakes to deliver a similar quantity and quality of the assets received, this does not mean that he becomes the owner of them, but rather that he remains a depositary. What happens is that, due to the type of assets usually received in such transactions, they cannot be preserved in their individuality, but rather become materially, NOT juridically confused (since they still belong to the depositor), with the rest of the available patrimonial assets, whether these are destined for investment, loans, or simple safekeeping.

But, as is obvious, the same occurs in any “regular deposit” in which the assets are fungible, since the fact that the depositary later returns different bills than those previously delivered by the depositor does not mean that in that act they had become the owner of them. Therefore, the ability to dispose of the assets delivered to them as owner does not at all eliminate the fact that they continue to be their depositary and the depositor their titleholder. That is, the assets continue to be someone else's property. In the case under discussion, the matter is palpable. If the sophistry displayed in the ground were correct, it would imply that the assets or values received by A. through the Bank became their property, as the challenger maintains. That is, that they belonged to them, which is very mistaken, because it is notorious that this was not the intention of the depositors, who delivered them with the hope and the Bank's commitment to return them in a timely manner with a profit. That was not only known by the depositors, but a matter of common sense; especially for the accused, who systematically acted to circumvent those commitments. In a previous resolution, to which both the judgment under cassation appeal and the appellant allude, this office stated: “Article 222 of the Penal Code, which punishes fraudulent administration (administración fraudulenta), establishes a special own offense (delito especial propio), since it delimits the possible circle of perpetrators to that person who ‘for any reason, having in their charge the management, administration or care of another's property (bienes ajenos), harms its titleholder by altering the prices or conditions of contracts in their accounts, by fabricating operations or expenses or exaggerating those they have made, by hiding or retaining valuables or by using them abusively or improperly.’ It is a special own offense because it cannot be committed -as the perpetrator- by any individual, but only by one who manages, administers or cares for another's property and carries out any of the typified conducts. The basis for this particular punishment is that the active subject assumes tasks or functions over an estate that is partially or totally another's (ajeno) and, therefore, a series of legal duties weigh upon them that they violate with their actions. The legislator also takes into account the existence of a bond that entails the trust placed in the agent by the passive subject, who expects loyalty and correctness in the management of their assets, rights and estate expectations. In summary, the defenders N and R allege that the accused were not performing administration functions over the depositors' and investors' estates, but rather that they committed themselves to them as debtors of an obligation; and that the funds, once deposited in Banco Germano Centroamericano, became the exclusive estate of the same and could be used for various purposes. On this topic, it is prudent to make some reflections. Banking activity, both in Costa Rica and in other nations, is strictly regulated in order to ensure the healthy economic development of the country and, among other reasons which are not relevant to delve into here, because it is essentially developed based on third-party capital and not on that which corresponds to the owners or shareholders of the bank: ‘The aforementioned activity is carried out with third-party capital or predominantly third-party capital. Its source comes basically from the public (depositors or savers) with which financial intermediation is managed. Thus, funds are captured by paying an interest rate in order to lend them at a higher one and profit from the differences between them. Its determining characteristic results from the third-party nature of the lendable funds and the object of financial intermediation. This intermediation does not use or risk “own” capital (as happens in other activities) but one of collective origin, definitively finite, quantifiable, unique in the country and not substitutable.’ (PORCELLI, Luis A., “Private financial entities. Functionality and history of their regulation”, in Crisis. Liquidation and bankruptcy of banks. Responsibility, Ediciones Jurídicas Cuyo, Buenos Aires, 2001, p. 347-348). These distinctions must not be lost sight of, since otherwise it is easy to incur error when assessing the nature of the functions that banking entities fulfill. They always work with third-party capital or estate (patrimonio ajeno) and that character of being another's does not disappear at any moment nor can it be confused with the capital contributed by the partners or shareholders of the company (which, of course, can also be the object of fraudulent administration). In the specific case, both Germano International Bank and Banco Germano Centroamericano captured resources from the public, through different means: deposits in savings or checking accounts; trust commissions, FOPEX and FODEIN funds, and money that was to be paid to the Central Bank for the purchase of foreign currency or to the client's creditors abroad. Savings and checking account deposit contracts have been classified by doctrine within the concept of “irregular deposit” (depósito irregular) since, contrary to what occurs in a regular one, the depositary is allowed to make use of the assets. It is ruled out, then, that they constitute a loan for consumption (mutuo) or money lease contract (see DÍAZ RAMÍREZ, Enrique, Banking Contracts, Temis, Bogotá, 1993, p. 92), which would indeed signify a displacement of the estate. That the sums deposited in checking or savings accounts maintain their character of being another's (ajenidad) in our environment (that is: they belong to the one who deposited them), is evident from the provisions contained in articles 529, 612, 617, 630 and 631 of the Commercial Code and chapter V, Title III of the Organic Law of the National Banking System (Ley Orgánica del Sistema Bancario Nacional), No. 1644 of September 26, 1953 and its reforms; because although the bank is allowed certain discretionary use of the funds - however: with various restrictions -, the depositor continues to be the owner of the money, it can be seized or frozen by judicial order and it constitutes an active part of their estate and not an “account receivable.” Hence, article 3 of the cited law No. 1644 defines the function of banks in this matter as “custodiar y administrar los depósitos bancarios de la colectividad” (to guard and administer the banking deposits of the community); a definition that, in reality, even if it were not in the law, would be extracted from the other norms that were previously cited and ultimately only serves to describe a phenomenon.” (see vote 231, of 8:45 a.m. on April 9, 2003). So that, apart from the impact on public trust, on the finances in the national market and on other human repercussions, there was indeed a breach of a legal duty towards the depositors, who, even accepting the thesis of “dual availability” (doble disponibilidad), could not dispose of their assets or valuables; even if their profile were reduced to a mere credit right, which would have also been thwarted. Certainly, also in this last case, where that right to restitution would be diminished to a credit right, it cannot be overlooked that the realization of the same is subject to the good administration of the assets or valuables delivered, so that even under such a thesis the administrator cannot behave with respect to them as if they were “their owner” (su propietario), because that would undermine the effectiveness of the credit; but, even more importantly, it is that the understanding of the parties is that the assets continue to be part of the depositor's estate. Hence, the aforementioned jurisprudence already issued by this Chamber in this regard, which the litigant attempts to sustain does not apply in this matter, must be reiterated and considered applicable.

XI.- Next, as a substantive claim, it is pointed out that the judgment erroneously applied the aggravating circumstance of fraud (estafa) in the offense of fraudulent administration. Furthermore, it says, the following were not taken into account: “…the defendant A.'s personal circumstances in their entirety, for example, his age, the fact that he has three young children who require their father's presence, his professional capacity and his importance as an active member of society, his successful career prior to the 2002-2004 period…”, as well as three operations attributed to him (the Tres Mil investments, the one related to B. and Kiona San Francisco) did not cause disbursement to the Bank, as well as the other elements of article 71 of the Penal Code. The objection is not admissible. When establishing the scope or margins of the sanction, article 222 of the Penal Code refers, without exceptions, to article 216 of the same. That is, the penalty for fraud (article 216) is applied, without any modification or discrimination, to fraudulent administration. This unobjectionably includes the aggravating circumstances contained in the final paragraph of the cited article 216, regarding which the legislator made no distinction, so there is no room to make one judicially. Consequently, there is no irregularity, but it is completely correct that, if the aggravating hypotheses stated therein concurred, these were also applied in the case of the fraudulent administration incurred by the defendant A.. On the other hand, when setting the corresponding penalty for these illicit acts, the a quo stated: “For the purposes of the penalty to be imposed, we must refer to Considerando VIII.1, to indicate that in this case we are also in the presence of the crime of Fraudulent Administration. While it is true, on that occasion the events occurred between February 25 and 26, 2004 -approval of the loans in favor of the defendant's companies Punta palmira, Bauza Casa Grande, Por Larrañaga, La Gloria Cubana and Mobiliaria Dos Mil Ocho- and the events concerning Considerando IX are framed between the months of May to December 2002 and January to March 2003, in reality it is a single crime of Fraudulent Administration of a larger amount. According to jurisprudence, we are faced with the same third-party estate (patrimonio ajeno), in this case entrusted to the President and owner of the bank Elca S.A, who had the administration of the resources invested in that banking entity by the various clients and investors, who with their actions, such as approving extensions of loans granted to companies belonging to his person, caused great harm. In the case of Inversiones Santa Damiana, when the extensions were approved unjustifiably, as of January 5, 2005 and according to the studies carried out, it presented a balance of one hundred sixty-two thousand eight hundred seventeen dollars and twenty-six cents, money that has ultimately not been paid, thus harming the estate of the bank Elca and that of its creditors, besides the fact that it cannot be demanded because it lacks a guarantee backing it. For all of this, the global penalty imposed is that of eight years of prison, which takes into account the different moments in which the cited unity of action manifested (five loans in favor of A.'s companies, this operation and the loan in favor of Inversiones Kiona) for which a lesser penalty is not justified given the very large harm caused. The Court takes into consideration to set the penalty within the established limits, the following: the circumstance of the gravity of the harm caused by the defendant, who takes advantage of his hierarchical position in the bank Elca to unilaterally and unjustifiably extend, without observing the respective procedures, the credit operation of Inversiones Santa Damiana, a company of his property, an operation that, as already indicated, lacks a guarantee backing it since all that exists is a copy of a bill of exchange whose signatures were questioned. All aspects which, considered as a whole, lead the Court to impose said penalty, considering that it is the one that conforms to the proportionality that must exist between it and the harm to the legal interest at stake and other proven circumstances, in relation to the possibility of achieving the rehabilitation of the accused so many times referred to.” (folios 17379-17380). Faced with these circumstances, the issue of the accused's age or health (which, as stated before, can be assessed at the sentence enforcement stage) or the need of their children (the same as those of any other father or mother deprived of liberty), are of relative importance. Finally, their role in society and their successful career would rather be elements that would increase their blameworthiness, both because they made it even less necessary for them to engage in these acts to secure a comfortable life for themselves and their family, and because they rather used these personal background elements to deceive their victims. Regarding the three operations in which, according to the ground, no disbursement was generated for the Bank, that is an argument that has already been discredited, showing that there was indeed such a disbursement. To conclude, as national jurisprudence has repeatedly stated, the various parameters contained in article 71 of the Penal Code for setting the sanction must be weighed insofar as they are pertinent to the case; because, if they are not, they lack relevance and turn that exercise into a mere rite. In the present matter, with the exception stated, the appellant omits to indicate which aspects were not assessed and how they would have changed the penalty imposed, causing the ground to lack procedural interest.

XII.- Regarding the financial statements in which A. delivered, according to the judgment, false information to the SUGEF, the defender claims that those financial statements were not introduced as evidence at trial. It is stated in that judgment that these are found on a compact disc in the file, but they were not presented at trial nor shown. Secondly, they add that it is not stated which indices the defendant altered, nor which data or reports were false. Thirdly, they say that qualifying certain acts as “fictitious” or “fraudulent” is defamatory and was done before presenting the facts; fourth, that it was not demonstrated that the manner in which the back-to-back loans were financed was illicit. Fifthly, the complainant says that the apparent irregularity of the defendant's actions arises from not having fulfilled the conditions that the SUGEF imposed on them to develop those back-to-back operations: that the related legal operations be complied with (which was done, because it is something permitted in Costa Rica); that the principle of knowing the client be respected (which is based on norms that prevent money laundering, an offense not charged here); and, that the funds come from a source external to the Bank (which finds no support in any law). Therefore, no infraction was committed. The complaint is not admissible. To begin with, the financial statements that the appellant misses were indeed available in the process, without the ritual act of exhibiting the compact disc containing them being necessary to satisfy the procedural duty of making them available to the parties or so that they could confront them. In cases like these, the same as with documentary evidence, it is sufficient to specify in which piece the information is found and where it is located, it remaining at the discretion of each party to go and review the document or file. If they had such a concern during the trial, they should have raised it before the a quo, so that the latter would give them the mentioned disc, in order to corroborate its content. Moreover, this is still possible. But, the fact that the disc was not materially opened or exhibited does not mean that the information in the accounting statements was fabricated or illegally incorporated into the evidentiary body. As to the alleged lack of explanation by the a quo of which indices were altered and which data were false, the defender is mistaken. This is explicitly established in the judgment. Thus, at folios 17417-17418, it is stated: “…once these operations were carried out and recorded in the bank's accounting records, the end-of-month reports were prepared, i.e., with a closing date of May thirty-first, two thousand four, the same ones which on the following day, i.e., June first, two thousand four, A. caused to be delivered to the SUGEF, and so it is noted in report No. 50-DEF-506-04/05 from folios 3746 to 3750 of volume IX, pointing out that ‘On June 1, 2004, Banco Elca sent official letter PE-017-04, to which is attached the “Plan de Ajustes Complementario al Plan Estratégico”, which reports on the increase of the credit portfolio through the granting of these “back to back” credits’ (cf. folio 3748 front); so upon examining such documents (cf. folios 10109 to 10122 of volume XIX of the principal file, in the section proof dossier No. 83) it is evident not only that the missive PE-017-04 is signed by A. himself in his capacity as Executive President of Banco Elca S.A. (cf. folio 10110 front) but that in said Strategic Plan it is effectively noted: ‘Together with this project, we are submitting the projected Financial Statements, with the effect therein of: a) the constitution of the additional provisions, b) the new loans granted, and c) the payment schedule for equity contributions. These projections likewise show the viability of this proposal and its effects on the bank's financial situation, particularly that which it will have on the solvency and asset quality indicators.’ (cf. folio 10119 front) and, coupled with the above, among others, the following was attached: ‘On magnetic media, the projected Financial Statements including the financial indicators’ (same folio). These are found on a compact disc in the file. That is, the defendant A. consummated the end they had proposed, and which the violated norm establishes, i.e., delivering to the SUGEF all that financial information seeking to indicate a healthy financial position, when the truth was that it was all based on that fictitious movement of twenty-three million eight hundred thousand dollars ($23,800,000.00) in assets and liabilities, and with a supposed profit of one million dollars ($1,000,000.00) as commissions generated.” It is clear then that the judgment did state which data were falsified in the indices and in what sense they were so. On the other hand, the topic of whether certain expressions that the defender deems hasty because they preceded the evidentiary reasoning of the judgment has already been resolved pages ago. And, the question of whether the funds used in the back-to-back operations were of licit origin or not is irrelevant regarding the crime being discussed, which consists of having provided false data and reports to the SUGEF, with the intent of hiding the true financial situation of Banco Elca. As to the final point, it must be said that the conditions demanded by the Superintendencia General de Entidades Financieras (hereinafter SUGEF) as requirements to healthily execute the back-to-back transactions, may respond to various motives, some of which are not being discussed in these lines. However, there are several considerations to make in this regard. One is that precisely such qualities were being imposed on those operations at bank Elca, in view of its precarious and suspicious situation, so the SUGEF was proceeding with more diligence in what concerned it. Second, it is undeniable that with its activity, this oversight seeks to guarantee the stability of the national financial market and its reliability, which A. and their bank were undermining, with the already known final result. Third, A. is not being punished in this regard, neither for disobedience, nor for a mere banking infraction (as the defender says), but for having recorded false information in the reports to that control body, seriously harming not only public trust in the national financial market, but also preventing the SUGEF from taking earlier immediate precautionary measures to reduce the particular and social damage that was deriving from the irresponsible management that led to the Bank's bankruptcy.

XIII.- In the thirteenth ground, the defender alleges that an expansive interpretation cannot be made of the criminal offense contained in subsection b) of article 158 of the Organic Law of the National Banking System, which punishes the delivery of false reports or data tending to hide the true financial situation of a banking entity.

Consequently, if what A. delivered was a "plan" and not a report, about a projected financial state and not actual data, besides the fact that the vulnerability of the Bank's credit portfolio could not be hidden from SUGEF, which it already knew, the accused's conduct could have constituted an administrative fault, but not a crime. The appellant is not correct. Whether called a "plan," "projection," "report," or simply "document," the brief sent by A. to SUGEF, as seen above, contained information (which is why it is a report) on the transactions whose execution was being requested for authorization, including: "a) the constitution of additional provisions, b) the new loans granted, and c) the schedule for payment of capital contributions," and stating that: "these projections also demonstrate the viability of this proposal and its effects on the bank's financial situation, particularly on the solvency and asset quality indicators." Therefore, it was not simply that they were making idle or unfounded predictions about the returns from those proposed transactions, but rather that, based on the data provided (which later proved false), it was estimated in that report that the weak conditions in which the Bank found itself would be strengthened. These conditions, although known to SUGEF, did not include, it goes without saying, that the data for the operations they were requesting authorization for were false, meaning that the prospects for improvement and viability that the Bank showed through that channel were also false, which resulted in the truth in that essential aspect being hidden from the authorities. That is why, unlike what the petitioner argues for his client's benefit, the Chamber does not consider that his conduct amounted to a mere administrative fault, but rather it is categorically demonstrated that it was a criminal action.

XIV.- As the penultimate reproach, the defense attorney indicates that, despite the judge of the intermediate procedure having agreed to bifurcate the debate, so that the sentencing determination (fijación de la pena) would have an exclusive phase, this was not carried out, as the Tribunal considered that the defense had not offered evidence regarding such a need. He then claims that this affected his client's rights, who could "...be seriously mistreated if the issue of sentencing is not given due attention." The argument is not admissible. To begin with, because, as the applicant himself acknowledges, when that decision was made, the defense agreed with it and did not challenge it. Secondly, because even if it had been so, the appellant does not demonstrate the procedural interest in having the debate conducted in the argued two phases. Commenting that this allows greater attention to be paid to the judgment of blameworthiness, or that the accused may be mistreated if due attention is not given, does not prove that this actually happened in this case. That is, he does not demonstrate the harm that he believes occurred, but rather argues in the abstract and not with respect to the specific case. In this case, on the contrary, as this decision has already established in each of the segments, a careful handling by the court of first instance (a quo) when setting the sanction and a broad attitude of weighing the various relevant factors are observed. The ground is without merit.

XV.- The last argument put forward by the defense attorney refers to the severity of the sentence that was imposed on him. He documents his complaint with data from the 2005 Human Development report, which indicates that the average life expectancy in Costa Rica (presumably for males) is 78.2 years. If A. is fifty years old and was sentenced to twenty-three years of imprisonment, this would imply that two-thirds of his remaining years of life (or more, given the harsh conditions of incarceration) would be spent in prison. Those years, the appellant says, would probably be the most productive of his life. All this to the detriment of the rehabilitative function of the sentence. With this, he maintains, elementary rights of his client were violated, which is evidenced by the treatment given to him by the court of first instance (a quo) when referring to him and by emphasizing his unfavorable aspects. Therefore, he affirms, the appropriate course is to unify the sentences or reduce each one of them, so that the total is not so high. The ground is not admissible. In the first place, the issue of whether, by the way of drafting or presenting its reasoning, the court of first instance (a quo) shows an indisposition towards the accused, has already been decided previously. Secondly, in the present case, we are dealing with a summation of the sentences imposed for each of the four crimes committed by A. So, the proper course is not to question the sum of them (given that the triple of the highest was not applied, but rather the sum, which was better for the defendant), but rather each of the sentences, as was indeed done in this appeal and was timely dismissed in the respective segments, upon considering that each of the sanctions was correctly set. In fact, in no case were sentences imposed that approached the maximum; rather, the fraud (estafa) and the fraudulent administration were slightly more than half; for the use of privileged information, the minimum was imposed; and, for the supplying of false banking information, he was given one year more than the minimum and two years less than the maximum. Therefore, it cannot be asserted that the sentences were degrading or cruel. Now, a purported unification is not possible, because this is only viable if it is an ideal concurrence (concurso ideal), a thing discarded in this case as it does not involve a single action, or a material concurrence (concurso material), in which case he could be sentenced to three times the highest penalty. However, in such a case, that would be less favorable to him than the summation performed, because while the latter yielded a total of twenty-three years in prison, the unified sentence via the rule of triple the highest would be twenty-four. Finally, it must be emphasized that it is true that the purpose of the sentence is rehabilitation, but the necessary margin for this is established by the legislator within the minimum and maximum sanctioning limits; therefore, it cannot be said that, for example, in a very serious crime, in the case of an elderly person, because he has little time left to live, the sanction should even be less than the minimum. Such margins must be respected and the sanction must be adjusted within the parameters postulated by Article 71 of the Criminal Code, which orders looking not only at the personal circumstances of the participant such as his age, but also at the motives he had, the possibilities of adapting his conduct according to the Law, the damage generated to the number of victims, and his conduct after the events, categories in which, as has already been explained at length, A. is in a position of blameworthiness.

XVI.- The resolution of this appeal must conclude by alluding to the documentary evidence offered therein, consisting of the document visible on folio 17564, which states that the percentage of return of their values to the legally recognized (legalizados) creditors is 74%, which, the defense attorney says, proves that the defendant was not a "looter." In reality, that document provides no element that changes the conclusions of the judgment that was challenged. In the first place, because this would only refer to the crime of fraudulent administration. Not to the crime of fraud to the detriment of Night Glow sociedad anónima, whose credit was not part of Banco Elca's liabilities, nor to the use of privileged information, nor to the supplying of false banking information, which also have nothing to do with the level of recovery by the creditors. On the other hand, strictly regarding the fraudulent administration, the fact that there is 74% recovery does not eliminate the intentionally irregular dealings already amply described, which resulted in detriment to the savers, even if they have recovered three-quarters of their values. And, finally, it cannot be cheerfully affirmed that this is the total margin of recovery, given that the certificate itself states that it is for legally recognized (legalizados) credits, as there are others whose legal recognition is still being discussed in judicial proceedings, meaning the final degree of recovery for the creditor body is unknown. The appeal is without merit.

XVII.- Co-defense attorney Juan Carlos Sbravatti Montoya, for his part, argues in the first ground of his appellate brief that the Tribunal set aside the demonstration of who is the shareholder and owner of the sociedades anónimas Night Glow and Montañas Mágicas del Sur, because commercial legislation establishes the ways in which this is accredited. "...the Trial Court must be certain of who (sic) the shareholder is, for which it is not enough to rely on the refrain or routine and everyday phrase such as '...that in criminal matters the principle of freedom of proof governs (Article 182 of the Criminal Procedure Code).'" The objection is in no way admissible. A legal norm is not a "refrain," nor is it a "routine phrase," but a prescription that the legislator has instituted to be obeyed. In this matter, to be applied in the criminal process. So, if, as the court of first instance (a quo) asserted, the aforementioned principle allows, as has already been stated in these pages, the relevant facts or circumstances to be proven by any lawfully obtained means, so too can the ownership of the shares of such companies be proven, for which purpose there were the testimonies of Messrs. G. and H, as well as lawyer R, who, as previously stated, attested to who is the owner of those companies. Consequently, there was suitable evidence to take it as certain that the shareholder who owns those companies is Mr. M.

XVIII.- The second objection consists of the fact that, according to the petitioner, the private complaint (querella) does not contain an imputation of concrete facts, because the accused has the right to know what he is accused of, it being a contradiction to affirm that the complaint is not "emulable" in its drafting, but that it allows one to know what the attributed facts are. The objection is not admissible. To begin with, it is not true that there is a contradiction between those last two assertions from the court of first instance (a quo). Something can be poorly drafted or in a way that is not the best, and yet be clear, as happens in the present case. So the contradiction that the defense attorney accuses does not occur. Second, apart from the above, it should be taken into account that the facts in question were known to the parties, because they had also been set forth in the prosecutorial accusation, which settled any doubt that might exist. As if that were not enough, it must be remembered here that this was not a defect alleged by the defense, but rather they come to claim it at this phase without managing to point out a concrete aspect in which, as a product of the confusion they censure, things were unintelligible and this made the defense impossible, or why they were ambiguous or what confusion they gave rise to, as he says happened. Lastly, it has also not been demonstrated that A. was sanctioned for an ambiguous or vague accused fact, but rather that he was sanctioned in accordance with those that were delimited in the accusatory documents.

XIX.- As a third argument, it is said that the documents issued by the Liquidation Board (Junta Liquidatoria) of Banco Elca, regarding transactions held with Inversiones Tres Mil and Grupo Prisma Asem, both sociedades anónimas and represented by J., were excluded as useful evidence. These pieces of evidence were important to demonstrate his participation in the investigated events. However, those documents were excluded because they had not been requested by the interested party nor had the lifting of bank secrecy (secreto bancario) in that regard been judicially ordered. "...Banco Elca S.A. is a bank declared bankrupt (sic) through a judicial resolution, consequently subject to a bankruptcy process. The distinguished Tribunal does not analyze that under that legal condition, Banco Elca S.A. lacks a Banking License..." He then provides some norms of the Organic Law of the Central Bank, none of which have a direct relationship with the point under discussion, except 133, which establishes the duty of discretion and restricted handling of information. The reproach is not admissible. That last norm cited rather reinforces what was held by the court of first instance (a quo); namely, the obligation of those involved in banking transactions not to reveal information relating to the interested parties. So this generic duty, called "bank secrecy" (secreto bancario), does exist, so that this information does not transcend to persons outside the transaction, unless there is a judicial order to the contrary. The fact that Banco Elca was declared bankrupt does not mean an exemption from that duty or bank secrecy, because what is protected is the information relating to the persons involved in those transactions, who still have the right that it not be disclosed, even when the Bank has been declared bankrupt. There is no doubt that such information reached that bank precisely as a result of its business operations, just as there is no doubt that, whether with that entity bankrupt or not, such clients have the right to have the restricted access to their information safeguarded. This being so, the Tribunal correctly proceeded to exclude the alluded documents, since these, not having been requested by the rights holder nor judicially ordered, infringed that duty of confidentiality and even the same norm that the complainant adduces.

XX.- As the fourth and fifth grounds, the defense attorney says that the documents from the Bahamas regarding the current account of the sociedad anónima Bosques de Ayarco at Transamerica Bank and Trust did not have the requisite authentications nor were they transferred following the chain of custody. He points out that this limited his client's defense, it not being valid to say that by having made use of that evidence, the defense had cured any defect it contained. The challenger is not correct. Certainly, the argument that, by having made use of them, the interested parties cured the defects of the evidence is not valid, because it would imply that, however illegitimate it might be, upon being used by the counterparty, evidence acquires legitimacy. However, that is not the reasoning of the court of first instance (a quo). It was concerned rather with the repercussions of the defects in the processing and transfer of these pieces of evidence, concluding that neither in one case nor the other did they have any relevance. In this regard, it stated: "Therefore, the defense would be correct in its initial approach (not so regarding bank secrecy because it is the regulations of the receiving state that must determine whether or not it exists, is lifted or not, etc. without the national judge being able to decide it and those foreign norms must be proven), but having made use of the evidence, it validated the formal errors and gave it validity, so that this leads to the rejection of the motion. Regarding the chain of custody of the evidence, no specific harm is argued with respect to it. It is on record that the competent body of the Bahamas sent the documentation directly to the national Prosecutor's Office and the evidence is easily reproducible upon a new request, so that the argument again leads to worshipping forms for their own sake. Notwithstanding the foregoing, it must be noted that still if the defense were given complete reason and hypothetically all those documents were suppressed, this would in no way affect the conclusions reached by this court and relating, as will be indicated below, to the criminal liability of C. in the crime of fraud to the detriment of Night Glow S.A. because that evidence file No. 91 (and its respective translation on folios 14958 a to 15087 of volume XXV) only allows one to infer the final destination of part of the funds received by C., without this being necessary because, having been accredited that he received them and thereby obtained an unlawful economic benefit (as will be analyzed in due course), it matters little what the route the money followed was, because that mere receipt, the deposit in personal accounts, the non-accreditation in favor of the harmed entity in Grupo Elca accounts (as indicated by the intervenors in the documents on folios 9814 a to 9816 of volume XIX and the authorities of Belize in the documents on folios 35 a to 40 of the complaint file of Cori Consulting and Financial Services S.A. when qualifying as of dubious legality the certificates issued with a date prior to the one authorized for that bank to operate and capture deposits) and the non-return of the funds upon being requested, determines that there existed both the harm and the undue economic benefit, as requirements of the objective elements of the crime: "...the only lawful -non-unlawful- destination that could be given to the assets was that imposed by the laws or the contracts signed between the banks and their clients; any other destination that does not derive from any of those normative sources is intrinsically and by definition, undue. Said in other words and by way of example, the lawful final use that can be given to saved funds is to reimburse them to the saver (an obligation arising from the contract and the law), or transfer them to a third party in exceptional cases, or retain them (e.g., by judicially decreed attachment or immobilization).

Thus, the thesis that the whereabouts of the funds are unknown is completely useless to evidence or suggest any licit purpose (the very fact that their location is unknown already violates the law) and rather demonstrates, without any doubt whatsoever, that an unjust patrimonial injury was consummated in exchange for an undue economic benefit." Sala Tercera, Voto Nº 231-2003 (emphasis in original). Furthermore, there is the independent source, which is the very declaration of H., who stated—before being shown that file—that the money was deposited in the account of Bosques de Ayarco, a company that belonged to C. and which was used to pay overdrafts of A. himself, a declaration that is supported by the OIJ reports that pronounce on the matter also before receiving the cited file. Ergo, even if the entirety of the evidentiary file No. 91 and its respective translation were hypothetically suppressed (which need not occur, given that the non-absolute formal defects were validated and there was an independent source of that information), the conclusions regarding the criminal liability of C. for the crime of fraud (estafa) to the detriment of Night Glow S.A. remain unassailable, as will be further explored in the respective section (Considerando V)." (folios 17047-17049). Therefore, as the grievance effectively suffered due to the handling of that evidence was not specified, nor that it was adulterated or devalued as a result, the issue of the non-observance of the chain of custody vanishes. In this regard, national jurisprudence has been reiterative in indicating that the simple allegation that the chain of custody was not observed is insufficient for the ground to be admissible. It is necessary to demonstrate that some irregularity occurred and that it affected the quality of the evidence or its content, whether by deteriorating or adulterating it. Thus, even if there were some anomaly, it would have no procedural interest if, as in this matter, those consequences cannot be determined, being at most an administrative infraction, but without procedural interest for the resolution of the case. However, what is truly important is that, as the a quo stated, hypothetically setting aside the cited documents, the incriminating conclusions against A. remain firm, since those pieces proved matters of little interest, such as the management of the suspect's bank accounts, whereas the relevant circumstances they demonstrated were also proven by multiple independent sources. The grounds are dismissed.

**XXI.-** In the following ground, the defense counsel proceeds to question almost all the relevant testimonial evidence gathered at trial, disqualifying some witnesses for some reasons and others for different ones. In his judgment, in summary, all the witnesses are suspect of failing to tell the truth and of hiding something. To begin, he criticizes that credence was given to the declarations of J, J, M, H, and M, since their participation in the events and their knowledge of the banking field was demonstrated. Then, he disqualifies G, R, F., and J, due to their relationship with Mr. M. Finally, he does the same with Mr. Á. and Mrs. V, for being people accustomed to dealing with lawyers, so it is not credible that they acted innocently in these events. The arguments are not admissible. It must first be stated that it is not true that the Tribunal did not set out in its evidentiary reasoning why it gives credence to each of those declarants and, in general, to the body of evidence. To enumerate here the various aspects that the a quo held as proven based on such evidence is unnecessary. But the appellant and the interested parties can verify that, for each important fact, it is stated on which evidence each proven fact is based and the explanation for why. To suggest, indiscriminately, that all the witnesses are suspect, or that the only one who told the truth is the accused and the other witnesses (for various reasons) are conspiring against him, is excessive and lacks any support. Thus, although it is true that two of them participated with some level of responsibility in the events (F. y E. and G, who settled for those acts), regarding the others there is no shred of doubt to cast a shadow over their testimonies. Just as the comment is also untenable that, because someone has a professional relationship with another or many years of experience in an area, the declarant will alter their testimony or hide something. Quite the contrary, as was already explained at length in previous pages, that evidence is internally consistent and in accord with the context, mutually confirming each other and with the documentary pieces provided in the proceedings. If the appellant believes that any of them incurred in an illicit act, they can proceed to denounce it, providing the elements of the case. But, as long as such elements do not exist, but rather presumptions of convenience, in which the urgency to detract from the overwhelming incriminating factors against their client may push toward this type of strategy, that argumentation is not admissible. Unless this can be demonstrated, and in this matter it has not even been attempted, such assertions are rash. The objection is dismissed.

**XXII.-** In the seventh procedural ground, the complainant objects to the illegal incorporation of documentary evidence, consisting of the complaint from Cori Consulting and Financial, a corporation (sociedad anónima). This, the co-defender says, refers to facts being judged in another venue and was not brought to the knowledge of the parties. Moreover, the Tribunal did not assess the evidence on folios 17164 a 17185, but only cited it. The ground must be rejected again for lack of procedural interest. As already noted above, the mere statement of a fault or irregularity (if it exists) is not enough to consider that it is a defect of the judgment or that it even leads to its nullity. It is a requirement for this that it be demonstrated that the fault in question (if it exists) has had repercussions on the judgment and that the relevant content of the judgment cannot subsist with that defect. However, if, as in this matter, the complaint is that evidence from a complaint in another proceeding was taken into account (for which, incidentally, there is no impediment, due to the principle of evidentiary freedom already explained), or that it was not brought to the knowledge of the parties, or that this evidence is only cited in the ruling without being weighed, it is necessary to demonstrate the procedural grievance. That is, what was the specific injury alleged to have been caused. Therefore, to delineate why that evidence was important, how things would have changed without it or if the parties had had access to it, or in what way the need for all the enumerated evidence to be explicitly assessed was appreciable. But the appellant limits himself to reproaching that certain evidence was incorporated, without even mentioning its content and even less its importance. Just as he also does not explain why he considers that any of the documents listed by the a quo within the set of evidence of that type was not weighed, nor its transcendence. In fact, he complains that not all the documents were assessed, without explaining why it was important to do so with any specific one or which of them was of interest to him and why. Furthermore, the Chamber must certify that the evidence weighed by the a quo is the important evidence, without it being noticeable that any relevant piece remained unexamined, something that, as stated, the appellant does not even attempt to demonstrate.

**XXIII.-** In the first substantive ground, the defense counsel claims that the existence of a scheme or deception (ardid) in the events related to Mr. G could not be demonstrated, since it was not proven that the bank in Belize did not exist, but rather there is a lease contract to locate it, that there were Elca Bank officials who went there for different tasks, that the investment certificates delivered by J. accredited its effective existence, and that there was no defect in the consent of the contracting parties, besides that the agreement signed in Guatemala contained an arbitration clause requiring them to settle their disputes in that venue. The ground is not acceptable. It must first be stated that the substantive appeal is intended to verify the correct application of substantive law to a determined factual species. This is not viable if, to favor the challenge, the fact pattern contained in the ruling is disregarded, as the factual premise of the analysis becomes inaccurate. This can happen by including aspects not held as proven or, as in this matter, by denying others that were, such as the existence of a scheme (ardid) and a patrimonial injury. Due to this situation, the examination requested by the defense counsel is not admissible. In any case, it is worth noting that all these aspects were examined and resolved in Considerando V of this judgment, in which it was stated that it is not true that the Bank was authorized to operate in Belize at the time the deception occurred to the detriment of Mr. G. It was authorized later, but that was long after the consummation of the crime, in which A. made him fall into error, offering him investments in a bank that was not operating then, and allocating the three million dollars that he gave him for other personal purposes. Thus, the determination made there must prevail. The defect in consent was present there. If later that party was willing to sign an agreement in the city of Guatemala to try to sort things out, it was, as stated, to try to salvage something. Or, as Mr. R. said, "del ahogado, el sombrero" (something is better than nothing). Not because they had not been deceived, since both the proposals of the accused, the existence of an office in Belize City, and even some investment certificates were all part of the same fraudulent setup. To conclude, the fact that there was an arbitration clause does not at all imply that all the parties' disputes must be resolved through that venue, as it is intended for patrimonial disputes, not criminal ones, such as the one before us, which must be resolved by the competent criminal courts.

**XXIV.-** Next, as a second substantive ground, this time regarding the fraudulent administration (administración fraudulenta), the defense counsel again attempts to discredit the witnesses whose declarations compromised the criminal liability of A. Likewise, he insists that it was not proven that his client was the perpetrator of those acts, nor was the amount of injury caused to the Bank proven. The objection is dismissed. As can be seen, the defense counsel again incurs the formulation error already indicated in the preceding Considerando, by denying in his substantive argument the facts that were held as true, as stated in proven facts 28 a 69 (folios 17192 a 17204). Regarding the disqualification of witnesses he intends to make, the determination made in Considerando XXI must prevail, in which it was explained that simple suspicion is not a reason to dismiss a declarant's testimony, especially if (as in this matter) such witnesses proved convincing and concordant with each other and in relation to the rest of the prosecution evidence, which is comparatively overwhelming compared to the defense evidence, which proved to be flimsy and insubstantial. To conclude, the issue of the amounts reached by the acts carried out by A. and constituting the fraudulent administration (administración fraudulenta) were set out in Considerandos VII, VIII, and IX of this judgment, referring in the pertinent part to the judgment of the a quo. Therefore, the minimum injury suffered is indeed demonstrated (in the liquidation process, the entirety of the Bank's accounts have not yet been determined), which incontrovertibly means that the actions constitute a major fraudulent administration (administración fraudulenta mayor). The objection is dismissed.

**XXV.-** Next, the misapplication of a substantive norm is alleged, resorting to altering the proven facts; the co-defender indicates that "…A. could not have known, nor had the means to know, that Elca Bank would be intervened a day after the H. family's redemption… All the intellectual effort made by the Tribunal's judges is useless because they cannot demonstrate the actual knowledge they attribute to A., substituting it with a presumption…" He ends by stating that the accused did not alienate any security, but rather that this transaction represented income for the Bank, for which liquidity problems were not proven. The grievance is not admissible. Apart from the formulation defects already noted, the petitioner omits considering that this outflow of funds had indeed taken place when A. irregularly authorized a loan for the corporation Kiona de San Francisco, which he intended to conceal with the money from the early redemption of the certificates belonging to the H. brothers. Furthermore, that there were liquidity problems at that time, he himself told those clients, so it is a situation for which there was indeed proof. Finally, privileged information was not only knowing the date on which the Bank was likely to be intervened by SUGEF. Knowing the weak situation of Kiona de San Francisco, the critical condition of Elca Bank, the debacle in the loan portfolio, and the abusive and criminal maneuvers that had been executed to prolong the problems, aggravating them, was also privileged information. A. was aware of all these situations, and he used that same information to continue his irregular actions. This was also extensively set out in Considerando VII, supported by the evidentiary record articulated by the a quo. It was thus, far from being "income" for the Bank, as the defense counsel says, that A. was attempting to cover up the outflow he had irregularly authorized, and "…the easiest way to obtain it was by acquiring the investment certificates of the Herrero family because, otherwise, he had no money to do so." **XXVI.-** In the fourth substantive ground, it is stated that regarding the back to back loans, the judgment omits assessing the defense's arguments and does not indicate the protected legal interest (bien jurídico tutelado), without SUGEF being able to be one, as it forms part of the Banco Central de Costa Rica. He says that this body cannot be considered an aggrieved party and that the a quo did not state what the endangerment that constitutes the crime consisted of. The complainant is not correct. In his complaint, this defense counsel does not state which defense arguments the judgment failed to assess, nor their importance, but rather limits himself to pointing out this alleged omission in general, without demonstrating the procedural interest of his dissatisfaction. Second, it must be clarified to him that, when speaking of a legal interest (bien jurídico), it does not allude to its bearer or the entity that embodies it (the specific individual or legal person), but to the legally protected interest. Thus, the legal interest (bien jurídico) of homicide is not one person or another, but rather it is embodied in them: life. Consequently, to discuss whether SUGEF is an autonomous entity or forms part of the Banco Central de Costa Rica, not only lacks all importance, but also overlooks considering that what is being protected is not the entity itself, but what it safeguards (the reliability of the national financial market) and, in general, the documents emanating from banking institutions; but, above all, as is obvious, the patrimony of those who had trusted in that banking entity is being protected. Therefore, the aggrieved party, as the ruling states, is the national banking system, which saw its credibility partially diminished by the actions of the defendant, and particularly the savers or investors who trusted in the failed Bank. To conclude, it must be said that the judgment does explicitly state what the damage caused by A. through those acts was. In this respect, it establishes: "…the legal interest (bien jurídico) protected by the norm has been effectively violated, which is none other than the protection of savers, coupled with the fact that his conduct contradicts the legal system as a whole, and endangered the stability of the Costa Rican financial system, by violating public trust in the national financial system, a legal interest (bien jurídico) also recognized and protected by our legislation; which necessarily implies respect for the assets that the saving public entrusts to the financial institutions that capture public savings and, therefore, the deference of these institutions to the supervision to which they must be subject. Thus, it is not, as the defense of A. pointed out, a matter of protecting abstract or improper legal interests (bienes jurídicos), but rather interests founded on the special protection of the saving public and the financial system. As stated by the Superintendente General de Entidades Financieras, O: 'The true financial situation was hidden. The entity's asset position was improved (...) If it had continued to operate, the public would have lost their businesses'; which indeed, had the accused A. achieved his purpose, would have occurred with greater injury to investors and savers. Furthermore, that public trust is placed in the people who have been entrusted with the administration of the assets, in this case bankers like C., who must have loyalty and care for the protection of these legal interests (bienes jurídicos) for their protection, which is violated when false information is supplied, concealing the institution's true financial situation from the supervisory entity, legally charged not only with supervision but also with endorsing the provision of the service. There, the danger to the legal interest (bien jurídico) was no longer abstract - which, in any case, is not unconstitutional as the Sala Constitucional has indicated - but concrete, since that action by the accused was intended to conceal other irregularities that had already been accumulating." (folios 17425-17426). Stated in this way, it becomes clear what the protected legal interests (bienes jurídicos tutelados) were, what the attack they suffered was, and the manner in which it happened. The appeal is dismissed.

**XXVII.-** For his part, the accused A. filed an appeal (casación), arguing first that the funds of Elca Bank were not alien to him, but rather his own, since, being irregular deposits, he assumed the character of owner regarding them, so a fraudulent administration (administración fraudulenta) could not be constituted. To support his argument, he resorts to citing various authors and to stating that the precedent set by the Chamber in this regard was different, because in that case there were no "irregular deposits" but rather "trust commissions." The reproach is not admissible. The issue has already been discussed and resolved in the tenth Considerando of this judgment, so the determination made there must prevail. In any event, it is appropriate to explain to the complainant that the fact that Article 116 of the Ley Orgánica del Banco Central prescribes that financial intermediation is performed "on the account and at the risk of the intermediary," in no way means that the intermediary becomes the owner of the funds entrusted to them. Even more, this is evidenced by who is affected upon failure, which is not concentrated solely on the intermediary; a fact that proves that the depositors maintain a preponderant role, which, as stated, is not simply a credit right, but rather they lose their assets.

So much so that, when things are not handled well, the risk is not borne solely by the depositary, but by the depositors, and even in many cases (such as the present one) the intermediary is not the one who assumes that risk, but rather extends it to the savers, and it is they (and not the former) who suffer the consequences of the events, without the intermediary assuming the financial responsibility incumbent upon it. Therefore, the erroneous reading that the applicant makes of article 528 (related to articles 524 and 529) of the Commercial Code must be corrected. When that rule states that: "In deposits of fungible things, the depositor may agree that things of the same kind and quality be returned. In this case, without the depositor's obligations ceasing, the depositary shall assume the character of owner for the purposes of losses, damages, and deterioration that the deposited things may suffer" (underlining added), it is obvious that it is referring to the vicissitudes or vagaries that may befall such goods or values, which, being in custody or administration for their use, must be guaranteed in their integrity and soundness, so that in the event of loss or deterioration, the loss is not faced by the depositor, but by the depositary. But, a contrario sensu, for all other purposes, the depositary does not acquire the character of owner, as the appellant erroneously states, since it is only authorized for their use, but does not acquire ownership of them. The objection is without merit.

XXVIII.- In the second ground, it is affirmed that the Trial Court erroneously applied the criminal offense of fraudulent administration (administración fraudulenta), given that there is legislation that is more specific than this to banking matters. "…the legislator's intention was to create a specific regulatory normative forum for this type of activities developed by public and private banks, because these institutions simply differ in their very nature and in the purposes pursued from any other conventional commercial activity…" With reference to the jurisprudence of this Chamber on drug trafficking matters, he assures that the actions attributed to the accused are constitutive of the criminal conduct described in article 159 of the Organic Law of the Central Bank (Ley Orgánica del Banco Central), in relation to article 241 of the Penal Code, and not a fraudulent administration. The former imposes a prison sentence for directors, administrators, managers, or legal representatives of an entity subject to the supervision of SUGEF who incur in the actions provided for in article 241 of the Penal Code, that is, who lend their assistance or consent for acts contrary to the bylaws or the law to be carried out, from which harm may arise for their represented entity or the public. In support of his petition, the defendant refers to some excerpts from the appealed judgment, in which it is stated that he improperly authorized loans or manipulated them in favor of his companies. He insists that, since the Organic Law of the Central Bank contains specific regulations for that type of entity and its officers, the responsibility of these will be covered by those rules and not others. From another angle, the defendant reproaches that article 239 of the Penal Code was not applied to him, instead of the crime of fraud (estafa), because the former punishes anyone who offers bonds, shares, or obligations to the public "…disguising or hiding true facts or circumstances or affirming or suggesting false facts or circumstances…", thus describing the actions that were attributed to him as executed to the detriment of the corporation Night Glow. The objection is not admissible. There is a fundamental difference that the accused is not making: the criminal offenses contained in articles 239 and 241 of the Penal Code protect good faith in business. In this matter, we are not only facing an infraction of that legal interest, but also a patrimonial damage, which those offenses do not cover. Therefore, from the very beginning, it must be ruled out that we are facing rules that regulate the same acts. That is, it must be ruled out that we are facing a case of apparent concurrence of norms (concurso aparente de normas) by consumption of the wrongfulness. But, to explain the matter more gradually, it is opportune to recapitulate here the basic notions of an apparent concurrence of norms. This, as is known, occurs when two or more precepts concur to regulate an action, but they exclude each other. In such cases, according to article 23 of the Penal Code, the special rule prevails over the general one, the one that completely contains another over the one contained, and the one that the law has established as dominant does so over the subordinate ones. Consequently, before entering into a discussion of how to resolve this matter, in order to determine whether there is a special criminal offense or one that contains the wrongfulness of the other, or whose application has been conditioned on not applying another, it must be defined for the first argument (that is, the authorization of improper acts versus fraudulent administration) whether both articles, besides constituting crimes in themselves, refer to the commission of other criminal acts in turn. The answer is negative and that saves us, once again, from having to delve into the topic of apparent concurrence. This is unnecessary simply because the two cited norms allude to different situations. There are other characteristics that must be noted apart from the determining characteristics of the protected interests referred to above; that is, neither article 239 nor article 241 of the Penal Code punishes patrimonial damage, something that articles 216 and 222 of that same law do, so they result in being the ones that best describe the proven factual species. Thus, while fraudulent administration refers to an activity composed of criminal acts in themselves, the authorization of improper acts refers to acts that are not criminal; that is, the authorization of improper acts consists of lending one's consent or assistance for acts contrary to the law or bylaws to be carried out, but which are not criminal, for in such a case the criminal offense of 241 of the Penal Code would not apply, but rather the corresponding criminal figure. Or, to put it another way, the criminal offense of article 241 is subsidiary; it applies if those acts are not sanctioned by another specialized norm, with this being the one that qualifies the acts that compose the sanctioned activity as criminal, unlike the mere "improper acts" which is a generic qualification of unlawfulness to the detriment of good faith in business. That is, it also does not contemplate the possibility of patrimonial damage, but the mere realization of the improper acts, this being another circumstance that differentiates it from fraudulent administration. This same fact excludes the possibility of speaking or thinking about a sort of passage crime (delito de pasaje) between one conduct and the other, since, as is known, the passage crime is the progressive affectation of the same legal interest, which is excluded in this case, in which the compromised legal interests are different: patrimony in fraud crimes and good faith in business against public trust, that is, they sanction in that order diverse things such as damage to patrimony and harm to public trust, respectively. Therefore, it is not true that said norms apparently concur with each other. Additionally, there is another difference, which consists of the fact that in article 241 of the Penal Code the administrator or manager "lends his assistance or consent", that is, he acquiesces to the acts of others, he does not carry them out himself. In such cases (as well as in those in which commission by omission is applicable due to being in the position of guarantor), the applicable crime will be the corresponding one, but not the generic authorization of improper acts, which is provided for acts by other subjects. In the present matter, it is therefore obvious that the applicable criminal offense was indeed that of fraudulent administration, both because the authorship of the actions was not of other subjects, but rather A., who did not lend his assistance or consent, but rather he himself carried out the irregular acts, and because those irregular acts were not simply "improper", but criminal and that, apart from damage to good faith in business, they resulted in patrimonial damage for the victims. As for the actions committed to the detriment of Mr. G. and his company Night Glow, it must be said that the appellant again confuses the taxonomy of both norms. The fraudulent offering of credit instruments does not cover the causation of patrimonial damage, but rather it is a crime (just like the one provided for in article 241) against public trust. So the mere offering of those bonds, shares, or obligations is enough for the crime to be configured, even if nobody had acquired them or had been affected by being induced into error. When that happens, the events transcend to the level of crimes against patrimony and are susceptible, not only to being prosecuted as fraudulent offering of credit instruments (something that, incidentally, was overlooked in debate in this case), but also as fraud (estafa), since besides an injury to good faith in business, it is also an injury to the patrimony of the aggrieved parties, a wrongfulness that is neither described nor contained in the cited article 239. Hence, as with the topic of the authorization of improper acts, we are not, as the appellant states, facing an apparent concurrence of crimes, but two norms that do not exclude each other nor protect the same interests, since a fraudulent offering can be made and thus affect good faith in business, without generating patrimonial damage, or vice versa, which corroborates that they are not norms that refer to the same factual species, nor does one contain the wrongfulness of the other.

XXIX.- In the third ground on the merits, it is asserted that in the case at hand the objective components of the criminal offense of use of privileged information (uso de información privilegiada) were not met, because information that does not have the capacity to influence the price of issued securities is not considered privileged. In the present matter, the early redemptions made were at their nominal price, without obtaining any additional benefit. What is sought to be prohibited, the petitioner says, is that the normal speculation of the stock exchange be altered, through the handling that makes it possible to know what can or cannot happen. Given that the transaction with the H. brothers occurred outside the stock exchange, it would not be covered by that article nor those of the Regulatory Law of the Securities Market (Ley Reguladora del Mercado de Valores), which in its numerals 101 and 102 speak of the "securities market". The challenger is not correct. The securities market is not only the stock exchange, just as the "market" in general is not a specific place. It is an activity. In that sense, there is no doubt that Banco Elca, like many other operators, acted in the securities market, even when many of those transactions did not take place on the stock exchange. Therefore, the aforementioned hypotheses that prohibit the use of privileged information do apply to these acts. On the other hand, that the information available to the accused was privileged emerges clearly not only from the reasoning of the lower court (a quo), but from the very transcription that the accused makes in his appeal, when it is affirmed that "Privileged information must be such that if made publicly it would influence prices (price sensitive information). Hence, not all non-public information can be considered privileged information" (López Barja, Curso…, p. 347). Thus, from the same textual quote made by the appellant it is confirmed that this information was indeed privileged. Or could it be that the value of the certificates he negotiated with the H. brothers would have come into his hands had he not concealed information about the conditions of the credit and the shares of the corporation Kiona de San Francisco? Or that the debt that this corporation held with Banco Elca came from an irregularly granted loan with a questionable guarantee? Irrefutably, if the investors had known the credit and shareholding situation of such corporation, they would not have delivered the aforementioned certificates to A, since both the debt of that corporation and its shareholding block would have had a much lower value than they appeared, while at the same time disguising the low reliability that Banco Elca had at that moment, whose certificates continued to be traded on the securities market, ignoring the magnitude of the problem (which included an imminent intervention of the Bank) and, incidentally, fictitiously sustaining a price that no longer corresponded to them by virtue of such vicissitudes. Regarding this, it is pertinent to bear in mind what the lower court (a quo) established, a text that was already referred to in the previous pages, but which is worth bringing up again. "It should be noted that, according to the reports of SUGEF, that operation denoted a high risk because, according to the payment capacity analysis, this corporation was left with an indebtedness of 80% and could only pay interest and not the principal. Understand, then, C.'s concern to cancel that loan at all costs, and the opportunity arose when the H. brothers accepted the exchange of their investment certificates for that loan, believing that there would be no problems because it was a 'healthy' loan. M. says 'I insist and what he told me was that we change the investments for healthy loans in other companies, he offers me a loan from Inversiones Kiona for four hundred fifty thousand dollars and had as guarantee 66% of the shares of FINANCORP brokerage house and Financorp, he gave me balance sheets from the previous month, I studied them, the balance sheets reflected very pleasant information'. We see then, how the accused, even knowing that the loan to Inversiones Kiona presented problems and having knowledge of the abnormal situation that the bank was going through, still offered it to the H. brothers, making them believe that everything was fine, the reality of things being reflected when the day after that negotiation, Banco Elca was intervened, also affecting the brokerage house Financorp, with this family having only received from the debtor corporation a principal payment of fifty-five thousand dollars ($55,000.00) plus the corresponding interest for the first month. It is very clear to the court, that the accused C. with the full intention of obtaining a benefit for himself, abusing his position as owner and president of Banco Elca and knowing beforehand that 'his' bank was in trouble, because he had information that SUGEF itself had sent him, deceives M. by telling him that the Inversiones Kiona loan was 'healthy', and once he comes into possession of the respective investment certificates, he redeems them to thus cancel the far from healthy loan he had granted to that corporation." To conclude, the issues of whether the early redemption of the certificates belonging to the H. brothers represented an outflow or an inflow for the Bank, and whether or not it constituted an acquisition under the terms of that article 245 of the Penal Code, or whether or not an improper benefit for himself or for a third party was involved, were already addressed in Considerando VII, so one must abide by what was resolved there, being something that furthermore the judgment holds as proven, so it is not permissible to call it into question again in the examination of the merits that is requested.

XXX.- In the first procedural ground, the appellant claims that the lower court (a quo) violated the rules of sound criticism (sana crítica), by holding the back-to-back transactions to be non-existent, resulting in "…from an accounting point of view and from a material point of view…" these were real, concrete, and generated resources for the Bank. He says that this type of operations were authorized by SUGEF, which verified that there had been income of one million dollars as a result of them, and that if they were reversed it was due to simple doubts of its officials. To support his thesis, an "Independent Auditors' Report. Audited Financial Statements. As of December 31, 2007", from the firm CGS-CPA y Consultores S.A., is provided as evidence, which confirms the existence of that money. Subsequently, some extracts from the judgment are transcribed, to contradict the Court's conclusion that those operations did not generate profits, making these dependent on the fulfillment of formalities for the granting of credits. Nor is it relevant, he says, that the original money came from Corporación Elca, because it was a company with its own capital, distinct from that of the Bank. But, the truth is that such operations were indeed carried out and the intervenors credited those funds to the cited corporation. The accused is not correct. The issue of whether those back-to-back operations had effective existence was already partially settled in the twelfth considerando of this resolution, therefore the parties are referred to what is stated therein. Regarding what was not discussed in that section and what the appellant formulates in his allegations, the following merits being said. In the first place, whether or not the funds had a certain origin, as he says, is irrelevant. What is important is that it was a merely accounting incorporation of some that came from Corporación Elca, which not only did not constitute any "fresh money" that strengthened the weak credit portfolio of Banco Elca, but rather they only entered nominally. However, it calls this Chamber's attention that an attempt is made to deceive, just as was done with SUGEF, the Courts of Justice, by saying that those initial funds of the back-to-back chain, which amounted to 1,240,000 dollars, came from Corporación Elca, when the truth is that from that corporation only a sum slightly over 850 dollars was taken (folio 17405). Hence, whether those funds from Corporación Elca were real is unimportant, if they were an imperceptible part of the total that were supposedly going to be invested in the back-to-back transactions. The rest came from the early and fraudulent redemption that, of the Bank's own certificates, the appellant had ordered, such as those canceled with two checks for 118,503.18 dollars and 206,930,896.97 dollars, corresponding to certificates that belonged to Messrs. J and W, and a line of credit approved by A. himself.

in favor of Kiona de San Francisco for the amount of 450,000 dollars (folios 17403-17404), which he transferred to Corporación Elca and from there to the Bank; but in no way did that imply that they came from the latter, but rather that they had only passed through its coffers in accounting terms. "That is to say, it can be established how the base money necessary to operate the back-to-back credit mechanism never came from external sources and, consequently, did not constitute fresh money, as was affirmed by the defense of A... With that money, and no other, the twenty back-to-back credit operations were executed, thus fictitiously increasing the credit portfolio and the commission income indices that Banco Elca S.A. had to report to SUGEF. As witness A stated: 'they were a series of operations with twenty companies that generated a series of operations that generated one million dollars in commissions and were recorded as commission income; subsequently, that million dollars ends up in the account of Corporación Elca (...) the "back to back" begin because Banco Elca receives checks from checking accounts drawn on Banca Promérica, about four hundred fifty thousand dollars are generated there, the instruction is given to deposit them in different Banco Elca accounts; after that money is entered, a credit is generated, with the five hundred thousand dollars from Banca Promérica and four hundred fifty thousand dollars from Banco Elca accounts, and a credit is generated for Inversiones Kiona; then it is deposited in Financorp Puesto de Bolsa, and one million is gathered which generates the credits on which the "back to back" are created, and they generate the million in commissions'; E. reports that: 'they explained a scheme of operations to us on the whiteboard, there were 20 accounts, a transfer came from abroad, an account was opened, a certificate was issued and from there a back to back, and so on with all the accounts' and M: 'we were told that the board of directors had approved the opening of 20 credits for one million, Mr. C. was there and they told us that SUGEF had approved it, that Mr. G. and Mr. C. had discussed it; the description was made to us on a whiteboard: with the disbursement of one credit, the guarantee for the other credit was made, and so on successively' and according to expert testimony, the established approach was to deposit funds—the one million two hundred forty thousand dollars ($1,240,000.00) held in the account of Corporación Elca Internacional, S.A.—into the savings account of one of those corporations (sociedades anónimas), starting with Inversora Agropecuaria 370 C.A. (see folio 28 of Legajo de Prueba No. 87-A) which, upon receiving the resources, requested that such funds be used to constitute a "Certificado de Inversión a Plazo" in its name at Banco Elca S.A. itself and immediately requested a credit, which it guaranteed with the recently constituted Certificado de Inversión a Plazo in its favor. The credit was approved by the Bank and the respective disbursement was deposited—by order of the benefited company—into the savings account of the next corporation, and so on successively until completing the twenty companies: the five Costa Rican ones: Inversiones Silver Reef SA, Vuelo Helicoidal SA, Industrias Artoeyar Ltda., The Blue Water Fall S.A., and Besiberri S.A., and the fifteen Venezuelan corporations: Comercializadora Sommersby C.A., Inversiones Alter 2005 C.A., Inversiones Ridixi C.A., Construcciones Dijon C.A., Agropecuaria Las Consonantes C.A., Inversiones Otawal C.A., Inversiones Sairanac C.A., Inversiones Valle La Pascua C.A., Deportes 4000 C.A., Inversiones Tendensipre C.A., Inversiones Bastron C.A., Inversora Agropecuaria 370 C.A., Herrerías Las Tres Esquinas 888 C.A., Fondo Río Chico CA, and Inversiones Rustol C.A.; with the last company in the chain—Inversiones Bastron C.A.—ordering that the disbursement of the credit granted to it be deposited into the account belonging to Corporación Elca Internacional S.A. No. 122011623, that is, the very same account from which the funds originally came—the initial one million two hundred forty thousand dollars ($1,240,000.00). In other words, the money returned to the account from which it originated, thus: one million one hundred thirty-five thousand dollars ($1,135,000.00) from that last disbursement plus one hundred five thousand dollars ($105,000.00) from the surplus (remanente) of some of the credit operations, as will be set forth next. The result was that from the chain of fund transfers, constitution of investment certificates, and formalization of back-to-back credits, a surplus of money remained in some of the accounts of the companies involved, with the exception of Inversiones Silver Reef S.A., Industria Artoeyar Ltda, The Blue Waterfall S.A., Construcciones Dijón C.A, Besiberri S.A., Inversiones Valle La Pascua C.A., and Deportes 4000 C.A. This surplus was constituted by the difference between the amount deposited into each savings account and the amount of the credit disbursed; all of these surpluses were transferred that same day, May 31, 2004, to the benefit of the account of Corporación Elca Internacional S.A. No. 1220011623, in response to an official communication from each of those companies authorizing the debit of that surplus from their account (cf. folios 35 to 47 of Legajo de Prueba No. 87-A). Therefore, then, as noted supra, the one million two hundred forty thousand dollars ($1,240,000.00) used to carry out the various back-to-back operations returned in its entirety to the account from which it departed, that is, the account of Corporación Elca Internacional S.A. These surpluses totaled one hundred five thousand dollars ($105,000.00), distributed as follows: Inversora Agropecuaria 370 C.A. four thousand dollars ($4,000.00); Fondo Río Chico C.A. one thousand dollars ($1,000.00); Herrería Las Tres Esquinas 888 C.A. five thousand dollars ($5,000.00); Comercializadora Sommersby C.A. twenty thousand dollars ($20,000.00); Vuelo Helicoidal S.A. ten thousand dollars ($10,000.00); Inversiones Rustol C.A. two thousand dollars ($2,000.00); Inversiones Alter 2005 C.A. three thousand dollars ($3,000.00); Inversiones Ridixi C.A. five thousand dollars ($5,000.00); Agropecuaria Las Consonantes C.A. seven thousand dollars ($7,000.00); Inversiones Otawal C.A. five thousand dollars ($5,000.00); Inversiones Sairanac C.A. twenty-eight thousand dollars ($28,000.00); Inversiones Tedensipre C.A. five thousand dollars ($5,000.00); and Inversiones Bastron C.A. ten thousand dollars ($10,000.00); for a total of one hundred five thousand dollars ($105,000.00) that, as stated, returned to the account of Corporación Elca Internacional S.A. No. 1220011623, to be added to the deposit of the last disbursement of one million one hundred thirty-five thousand dollars ($1,135,000.00), thus totaling, once again, the initial one million two hundred forty thousand dollars ($1,240,000.00). In light of reports number 421-DEF-300-04 at folios 844 to 853 of volume III and their amplifications, 50-DEF-506-04/05 at folios 3746 to 3750 of volume IX, and 283-DEF-274-05 at folios 5237 to 5239 of volume XII, and the clarifications provided about them by the expert from the O.I.J. (Judicial Investigation Agency) José Antonio Bravo Bonilla, it can be concretized that the mechanism used, following the order of those twenty back-to-back credits, was: (1) from the account of Corporación Elca Internacional, S.A. No. 122011623, A. transferred the one million two hundred forty thousand dollars ($1,240,000.00) gathered, to the savings account of the company named Inversora Agropecuaria 370 C.A. at Banco Elca S.A. No. 112003321, which in turn requested that with those amounts a Certificado de Inversión be issued at Banco Elca S.A. No. 200028446 for an amount of one million two hundred thirty-six thousand dollars ($1,236,000.00) for a one-month term (renewable for equal terms) in order to then request the formalization of a credit operation in its favor, No. 300012955, for the same sum as the Certificate and guaranteed by it; (2) The resources of said credit were deposited into the savings account of Fondo Río Chico C.A., No. 112003226, and with these funds and in favor of this company, the Certificado de Inversión at Banco Elca S.A. No. 200028434 was constituted for one million two hundred thirty-five thousand dollars, and at the same Banco Elca S.A., a credit operation No. 300012947 was formalized in favor of this company for the same amount and with said certificate as guarantee; (3) Those resources were deposited into the savings account of Inversiones Silver Reef S.A., No. 112003290, and with them, in favor of this company, the Certificado de Inversión at Banco Elca S.A. No. 200028443 was constituted for one million two hundred thirty-five thousand dollars ($1,235,000.00), and immediately thereafter at Banco Elca S.A., a credit operation No. 300012952 was formalized in favor of this company for the same amount, and with said certificate as guarantee; (4) Those resources are deposited into the account of Herrería Las Tres Esquinas 888 C.A. No. 112003249; with them, the Certificado de Inversión at Banco Elca S.A. No. 200028437 was constituted for one million two hundred thirty thousand dollars ($1,236,000.00), and Banco Elca S.A. formalized in favor of this company the credit operation No. 300012950 for the same amount, and with said certificate as guarantee; (5) The resources of said credit were deposited into the account of Comercializadora Sommersby C.A., No. 112003261; with them, the Certificado de Inversión at Banco Elca S.A. No. 200028441 was constituted for one million two hundred ten thousand dollars ($1,210,000.00), and a credit operation No. 300012959 was formalized in favor of this company for the same amount, and with said certificate as guarantee; (6) Those resources were deposited into the account of Vuelo Helicoidal S.A., No. 112003350; the certificate of investment at Banco Elca S.A. No. 200028450 was issued for one million two hundred thousand dollars ($.1,200,000.00), and a credit operation No. 300012960 was formalized in favor of this company for the same amount, and with said certificate as guarantee; (7) That money was deposited into the savings account of Industrias Artoeyar Ltda, No. 112003344; the Certificado de Inversión at Banco Elca S.A. No. 200028449 was issued for one million two hundred thousand dollars ($.1,200,000.00), and a credit operation No. 300012963 was formalized in favor of this company for the same amount, and with said certificate as guarantee; (8) With those resources, a deposit is made into the account of The Blue Waterfall S.A., No. 112003381; the Certificado de Inversión at Banco Elca S.A. No. 200028456 was constituted with them and in favor of this company for one million two hundred thousand dollars ($.1,200,000.00), and Banco Elca S.A. formalized in favor of this company a credit operation No. 300012965 for the same amount, and with said certificate as guarantee; (9) With those resources, the following deposit is made into the account of Inversiones Rustol C.A., No. 112003309; the Certificado de Inversión at Banco Elca S.A. No. 200028451 was constituted in favor of this company for one million one hundred ninety-eight thousand dollars ($.1,198,000.00), and credit operation No. 300012961 was formalized for the same amount and with said certificate as guarantee; (10) Those resources were deposited into the account of Inversiones Alter 2005 C.A., No. 112003189; the Certificado de Inversión at Banco Elca S.A. No. 200028442 was constituted in its favor for one million one hundred ninety-five thousand dollars ($.1,195,000.00), and credit operation No. 300012951 was formalized for the same amount and with said certificate as guarantee; (11) That money was deposited into the account of Inversiones Ridixi C.A., No. 112003255; the Certificado de Inversión at Banco Elca S.A. No. 200028436 was constituted for one million one hundred ninety thousand dollars ($.1,190,000.00), and credit operation No. 300012948 was formalized for the same amount and with said certificate as guarantee; (12) The sum obtained was deposited into the account of Construcciones Dijón C.A., No. 112003315; with it, the Certificado de Inversión at Banco Elca S.A. No. 200028448 was constituted for one million one hundred ninety thousand dollars, and with it as guarantee, credit operation No. 300012958 was formalized for the same amount; (13) The money is deposited into the account of Besiberri S.A., No. 112003410; the Certificado de Inversión at Banco Elca S.A. No. 200028455 was constituted in its favor for one million one hundred ninety thousand dollars ($.1,190,000.00), and the same Banco Elca S.A. formalizes in favor of this company a credit operation No. 300012964 for the same amount and with said certificate as guarantee; (14) Those resources were deposited into the account of Agropecuaria Las Consonantes C.A., No. 112003373; with them, the Certificado de Inversión at Banco Elca S.A. No. 200028447 was constituted in favor of this company for one million one hundred eighty-three thousand dollars ($.1,183,000.00), and with it as guarantee, a credit operation No. 300012956 was formalized in favor of this company for the same amount; (15) The money from that credit was deposited into the account of Inversiones Otawal C.A., No. 112003284; with it, the Certificado de Inversión at Banco Elca S.A. No. 200028452 was constituted for an amount of one million one hundred seventy-eight thousand dollars ($.1,178,000.00), and immediately thereafter at the same Bank, a credit operation No. 300012962 was formalized in favor of this company for the same amount and with said certificate as guarantee; (16) The resources from that credit were deposited into the account of Inversiones Sairanac C.A., No. 112003232; with them, the Certificado de Inversión at Banco Elca S.A. No. 200028435 was constituted in favor of this company for one million one hundred fifty thousand dollars ($.1,150,000.00), and with it as guarantee, a credit operation No. 300012949 was formalized in favor of this company at the cited bank for the same amount; (17) The resources from that credit were deposited into the account of Inversiones Valle La Pascua C.A., No. 112003278; with these funds, the Certificado de Inversión at Banco Elca S.A. No. 200028438 was constituted for one million one hundred fifty thousand dollars ($.1,150,000.00), and credit operation No. 300012954 was formalized in favor of this company for the same amount; (18) The resources from said credit were deposited into the account of Deportes 4000 C.A., No. 112003404; with these funds, the Certificado de Inversión at Banco Elca S.A. No. 200028439 was constituted for one million one hundred fifty thousand dollars ($.1,150,000.00), and a credit operation No. 300012957 was formalized in favor of this company for the same amount and with said certificate as guarantee; (19) The resources from said credit were deposited into the account of Inversiones Tendensipre C.A., No. 112003338; the Certificado de Inversión at Banco Elca S.A. No. 200028444 was constituted in favor of this company for one million one hundred forty-five thousand dollars ($.1,145,000.00), and a credit operation No. 300012953 was formalized in favor of this company for the same amount, and with said certificate as guarantee; (20) That money was deposited into the account of Inversiones Bastron C.A., No. 112003427; with it, the Certificado de Inversión at Banco Elca S.A. No. 200028453 was constituted for one million one hundred thirty-five thousand dollars ($.1,135,000.00), and with it as guarantee, credit operation No. 300012966 was formalized for the same amount. Consequently, with all these fictitious financial movements, the accused A. managed to increase, in accounting terms, though not financially, the Credit Portfolio (Cartera de Crédito) of Banco Elca S.A., directed by him, by a total of twenty-three million eight hundred thousand dollars ($23,800,000.00), as well as to record commissions, which are also fictitious since, as will be seen, it is the same original money, for credit disbursements in favor of the Bank for exactly one million dollars ($1,000,000.00). All of this occurred on the same day, May 31, two thousand four, with the sole purpose, then, of having it recorded in the Bank's Financial Statements as of that date. From the foregoing, it is duly proven that not only did no external resources enter Banco Elca S.A., but neither did it obtain any real benefit from these movements, other than, then, the accounting one alone, whose sole purpose was to simulate a healthy financial situation, as pointed out by Superintendent R: 'The nature of those operations was fictitious, also the purpose because the bank was showing normality when it was in irregularity status two. The true financial situation was hidden. The equity situation of the entity was improved. Files were reviewed and it was determined that they did not meet requirements. Since March, it was evident that the bank was at risk, just by reviewing 15%; it was not the first time it was in that situation in irregularity one and two. If it had continued operating, the public would have lost their businesses.' Although the accused A. testified at trial, he did not mention the topic addressed in this section of the judgment, in addition to abstaining from answering questions from the procedural parties. The foregoing notwithstanding, a written statement by him (cf. folios 4059 to 4065 of volume X of the principal file) exists regarding the related back-to-back credits which, although it does not substantially diminish the presentation made by the Tribunal, does seek to evade his responsibility. Contrary to what the accused A. stated there (cf. Article 343, paragraph 3 of the Code of Criminal Procedure), his private defense attorney now affirms that the cited back-to-back credits produced fresh income for the bank, among other reasons because they produced commissions on the order of one million dollars ($1,000,000.00) that entered its coffers. However, this is nothing more than a defense argument and does not merit credibility, since it is once again proven that it is not a distinct fresh money, but the same money that served as the basis to generate the back-to-back credits and that returned to the checking account of Corporación Elca Internacional, S.A. from which it originally came, as has already been established." (folios 17405-17413). On the other hand, if SUGEF authorized, albeit conditionally (which was disrespected), these operations, it was under the belief that the information provided by the accused and his bank was reliable, something that ultimately proved wrong, as he intended to hide that these operations were a simple accounting maneuver to simulate that the financial entity's situation was not so critical. Thus, regardless of possible anomalies in the granting of the credits in question, what is relevant is that the entire succession of operations was nothing other than a setup. Faced with all this, the importance of the conclusion of the financial report provided by the accused is not seen, which at folio 26 reports a "rejected legalized obligation" (sic) for 1,006,047 dollars produced by the reversal of commissions from the cited back-to-back operation, because this does not certify, much less, that this money was generated as profit; rather, what exists is an accounting obligation, whose final destination depends on the corresponding judicial resolution.

**XXXI.-** As a second procedural ground, the accused reproaches that the existence of intent (dolo) in the fraud (estafa) he was accused of was not proven. He comments that the allusions made to that point in the judgment are scant and lack evidentiary reasoning, which the Judges do not mention. Rather, he assures, many of the elements taken into account by the lower court (a quo) confirm the non-existence of that intent, for which he seeks support in parts of the judgment he transcribes. He says that Mr. G. made investments on at least three different occasions with his bank, two of which were positive and that in the third he tried to honor his commitments, responding with his own resources, on which he expands by recounting the efforts made in that sense and what the witnesses said. *The ground is not admissible.* All those aspects, consideration of the paragraphs of the judgment referred to by the petitioner, were already discussed and resolved in recitals (considerandos) II, IV, V, and VI, in which it is stated what evidence the lower court punctually took into account to demonstrate the various components of the fraud, including the fraudulent intent, which is why the interested parties are referred to what is recorded there.

**XXXII.-** As the next ground, the accused complains of the illegal incorporation of evidence from the Bahamas, for which it was not proven that bank secrecy was lifted or that the chain of custody was respected. Since it is evidence that does not benefit the suspect, the lack of protest or the use of that evidence by the defense does not cure the defects it contains, and it must be excluded. *The issue has already been resolved* in the twentieth recital (considerando) when evaluating the appeal of his co-defender. Refer to what was decided there.

**XXXIII.-** In the fourth complaint, it is argued that due process was violated by not conducting the trial in the two phases that had been agreed upon in the intermediate stage. *"…this proceeding has caused serious harm to the rights of the accused, as he was denied the possibility of presenting before the members of the Tribunal the elements of conviction aimed at providing more information for the purpose of fixing the penalty to be imposed."* *The reproach is not acceptable.* The issue was already resolved in recital (considerando) XIV of this resolution, so what was decided there must be adhered to. Besides, the appellant does not indicate what element of conviction he could not present in the closing arguments that he could have presented in the second stage of the trial he misses, or what he could have said in that stage that he could not in the trial as it was held. Therefore, the complainant offers no additional reason to those that were analyzed in the aforementioned recital.

**XXXIV.-** Continuing the trend of reiterating grounds already presented by his defenders, the accused alleges that the penalty imposed on him lacks reasoning.

It states that Article 142 of the Criminal Procedure Code imposes the duty to provide reasons for decisions, and that Article 71 of the Criminal Code establishes the parameters that must be taken into account for setting the penalty, all of which was disregarded by the trial court (a quo), which did not assess the personal qualities of the accused, such as his studies or age. It concludes by saying that the purpose of the sanction must be resocialization, and therefore twenty-three years of prison are disproportionate. All those aspects were already debated in Considerando XV, and interested parties are consequently referred to what was established there.

**XXXV.-** Finally, in an additional brief, A. presented a sixth procedural ground, in which he denounces erroneous weighing of evidence, by giving credence to witnesses who *"...clearly had a very particular interest, specifically the interest of not being implicated as defendants in the same acts..."* He refers to the testimonies of H and J. Next, he transcribes doctrine and jurisprudence of the Spanish Constitutional Court regarding what constitutes the correct weighing of evidence, as well as excerpts from the ruling in which the participation of both subjects as actors and later as witnesses is highlighted. He concludes by saying that there were no independent pieces of evidence to corroborate the information they provided and again resorts to the doctrine on "negative intrinsic criteria." The ground is dismissed. The fact that doctrine and jurisprudence assert that special care must be taken in weighing the testimony of persons linked by relationships of friendship or enmity, or by concordant or contrasting interests with the accused, does not mean that those statements must be disqualified, but rather (and the complainant agrees on this) that greater attention must be paid. However, in turn, this does not prove that in this case those witnesses failed to tell the truth, something that not even the defendant in his appeal attempts to demonstrate, but rather he simply casts a shadow of suspicion with which he intends to devalue said evidence, without specifying in what aspect it is not true or which evidence discredits it. On the contrary, as explained pages earlier, said testimonies, although coming from persons who had an accessory participation in some of the acts (for which they reached a conciliation), were shown to be consistent and internally logical, as well as consistent with the context and the other evidence gathered. Furthermore, it must be categorically stated that there were indeed independent pieces of evidence that confirmed the statements of those witnesses, as was developed in Considerandos II, III, and XXI, when addressing the issue of the reliability of witnesses F., E., and G. The appeal filed by the defendant A. is dismissed.

**XXXVI.-** The representatives of the civil co-defendant (demandada civil), the bankruptcy of Banco Elca sociedad anónima, filed an appeal, claiming in the first ground, which they head as *"violation of the rules of sound criticism,"* that the trial court (a quo) violated the substantive law, because in the present matter no pecuniary damage was caused against the sociedad anónima of Mr. M. Leaving aside the technical imprecision of jointly alleging reasoning problems and misapplication of substantive law to the factual species being questioned (which is a claim for indirect violation of the law), it must be said that the challengers are not correct. After transcribing *in extenso* the relevant part of the judgment, said petitioners say that the investment certificates issued in exchange for the three million dollars delivered by G.'s representative to A. were genuine; and that, on the other hand, these funds had to be deposited outside Costa Rica. If the bank in Belize could not capture money at that time, that does not mean it was not obligated by such certificates, so they should have been collected there. On the contrary, it was not demonstrated that the injured party took steps to collect the money in the place where it was voluntarily sent or that the money did not reach that destination, on which it places emphasis in the following pages. The objection is not admissible. Both in this ground and in the subsequent ones, the constant will be that the appellants attempt to suppress the fundamental fact about the category of the events that concern us: that this is not a mere financial negotiation, but rather the commission of a crime. Thus, even if the funds were destined for another place or a banking agency in another country was mentioned, this in no way inhibits national courts from hearing the matter and ruling in accordance with the law, given that the acts took place in Costa Rica, where both the deception and the resulting pecuniary damage occurred. This aspect, which is criticized by the petitioners, who deny that such deception and damage occurred, is amply demonstrated, with reliable evidence already recapitulated above to the effect that A. received three million dollars from Mr. G., to whom he had offered the offshore services of Banco Elca in Belize. These were not delivered "voluntarily," but with a will vitiated by the error into which the accused caused him to fall, by telling him that such services existed when in reality the respective permit was barely being processed, but this was useful so that, trusting in that version, G. delivered the money and A. diverted it to an account of his own, without sending it to Belize, where it was not possible in any case, given that the activity of the cited agency was a fallacy. It goes without saying that G. could not recover his funds. Therefore, focusing on the events as if it were a simple financial transaction and demanding that solutions consistent with such condition be sought (collection proceedings, verification of deposits, and other steps), ignores that this is not a purely commercial situation, but rather involved a crime, which was carried out by simulating false data or circumstances (an inoperative agency, facilities that simulated being active, fictitious certificates, a deposit into an account that was not such, etc.), which the appellants take as true to demand a solution different from the civil conviction of their represented party, something illogical and precisely what is being demonstrated was a fallacy. To conclude, what was established by the trial court (a quo) in this regard must be cited, as it is even more clarifying. *"It has been alleged (folios 16637 a 16639 of volume XXVII principal) that the Costa Rican judges/judges are not competent - although in reality it is a matter of lack of jurisdiction of national courts - to rule on the civil lawsuit since the certificates in favor of Night Glow S.A. (in attention to the principle of literalness inherent to negotiable instruments (títulos valores)), must be considered issued in Belize, which is the place specified in the contract, so it is in that country where the contract must be performed and any controversy elucidated, as established by Articles 1907, 323, and 324 of the Código de Derecho Internacional Privado commonly known as the Bustamante Code, as it will continue to be called. This argument must be rejected. Firstly, it must be said that Belize does not appear as of this date as a signatory, adherent, or ratifying country of the Bustamante Code (see official information on the OAS website: http://www.oas.org/juridico/spanish/firmas/a-31.html) so it is not observed how a regulation that is not part of its legal system could be applied. Secondly and more importantly, whoever formulates this reproach attempts to let the essential element of this discussion go unnoticed, which is that the mentioned negotiable instruments (títulos valores) lack value as such (that is, as negotiable instruments) because they were part of the means used by the defendant C. to induce the offended entity into error. And it is said that they are not properly negotiable instruments (títulos valores) because at the time of their issuance, Elca International Bank and Trust Limited of Belize was not authorized to capture public funds and, therefore, to obligate itself in a contract of the nature being discussed, as evidenced in the documents on folios 35 a 40 of the complaint file of Cori Consulting and Financial Services S.A.. Moreover, the obligation being enforced with the civil lawsuit is not properly derived from the referred certificates - which would presuppose their validity - but rather one derived from a crime (estafa, fraud) and that crime was committed in Costa Rica because the money was delivered at the facilities of Banco Elca in San José to C., who although not present at that moment, gave instructions to H for its receipt and disposal for his benefit. It was in that place that A. appropriated it by ordering it to be transferred to an account of his own outside the country, which he subsequently used for a purpose different from the one contracted. If the crime occurred in Costa Rica and the documents were only a means to cause the offended party to err, it is in Costa Rica, in the place where the claim must be filed, this court being, after having completed the other stages of the process, the competent one to rule on the merits, being the penal tax court with jurisdiction to hear the crimes indicated in numeral 1 of Ley Nº 8275 creating the Jurisdicción Penal de Hacienda y de la Función Pública, among which are those provided for in the Ley Orgánica del Banco Central de Costa Rica and, by connection, any other related act whether committed by the same defendant - as is the case here - or by other circumstances provided for in the regulation (Articles 50 and 51 of the Criminal Procedure Code). As if what has been said up to this point were not sufficient for the rejection of the claim, it must be added that the check with which R. pays the three million dollars is delivered to H. at Banco Elca in Costa Rica on May 31, 2002, at 10:50 a.m. and this is the same date borne by the certificates (See folios 2588, 2590, 2592 and 2594 of volume VII principal) which were also withdrawn in San José, Costa Rica, which, added to the fact that at that time there was no license to capture funds and that the local bank handled documentation with the letterhead of the Belize bank, allows the inference that this issuance never took place in Belize, even if so stated, but rather was done in Costa Rica."* Due to all the foregoing, the ground must be upheld.

**XXXVII.-** As second and third grounds, the appellants emphasize that it is not true that the negotiation with the sociedad anónima Night Glow was on behalf of Banco Elca with A. acting as intermediary *"...because the evidentiary elements produced during the adversarial proceedings only reflect to us that the aforementioned financial transaction was personally with (sic) C. and J..."* Resorting to compiling some strokes of the testimonial evidence, the petitioners reiterate that the Belize agency existed and that the money was delivered voluntarily with the aim of it being deposited there, and not in Banco Elca of Costa Rica, which in any case it never reached, as it was deposited by A. in an account of his own. Furthermore, that G., being a successful entrepreneur and his representative an experienced lawyer in the field, confused both financial entities. That is why, according to those testimonies and documentary evidence insufficiently weighed by the trial court (a quo), it was possible to demonstrate that this debt was not attributable to Banco Elca, to the point that it was rejected as part of its contractual obligations. The challengers are not correct, as they continue to confuse the typology of the events. Banco Elca answers for the civil consequences of the estafa (fraud) committed to the detriment of Night Glow sociedad anónima, not because it had any contractual obligation with the latter—a matter that is amply ruled out and on which the appellants unnecessarily insist, as it is not being the subject of discussion—but rather because the liability arises from a criminal act, from a crime and the extracontractual consequences it entailed. It is, therefore, irrelevant whether the meetings held at the Banco Elca facilities in San José contractually bound it or not; or whether those funds were destined to be deposited in it or not; or whether Gaber and his representatives were persons susceptible to confusion. The crux of the matter does not lie in what commitments were acquired by Banco Elca and accepted by the counterparty, which is what the representatives of the civil co-defendant (demandada civil) try to debate at length, but rather the extracontractual liability it bears by virtue of the criminal offenses committed by its representative, who, using the means and credibility afforded by his capacity as president of Banco Elca and its apparent solidity, from which he even offered offshore services, was able to deceive G. and make him hand over three million dollars. On this topic, justice is not done to the ruling by shortening, for the sake of conciseness, a considerably documented and logical argument like the one made by the trial court (a quo) from folio 17290 onwards. *"What remains to be determined, then, is whether there are grounds to civilly condemn the bankruptcy of Banco Elca S.A.? That is, it must be analyzed whether the bankruptcy of Banco Elca S.A. has passive standing (legitimada pasivamente) to be sued or if, on the contrary and as the defenses of the civil defendants have alleged, there has been an incomplete necessary passive joinder of parties (litis consorcio pasivo necesario) either because Elca International Bank and Trust Limited or Corporación Elca Internacional S.A., which was the regulator of the group, were not brought in as defendants. A parenthesis must be made to indicate that A.’s civil defense as a natural person lacks interest in referring to this issue because it only affects the bankruptcy of Banco Elca, which is not represented by A., and there is proprietary and legal separation between natural and legal persons. That is, regardless of what is decided on this topic, A. as a natural person always answers for the civil consequences of his crime. Despite what has been said, the issue will be addressed jointly. The unanimous criterion of the court is that the bankruptcy of Banco Elca does have standing to be passively sued and that there is no necessary passive joinder of parties pending completion that prevents a ruling. This latter point because although Corporación Elca was the regulator of the economic group, its liability is subsidiary (Article 142 second paragraph of the Ley Orgánica del Banco Central) and, in any case, A. openly said - including to the offended entity - that the Belize offshore company (which he indicated was already operating or omitted to say lacked a license to capture funds) was a branch of Banco Elca S.A. and not of the Corporación, although indirectly it did belong to it. If it was a branch of the bank, Banco Elca S.A. (today its bankruptcy) answers for it, the President of said bank having mentioned it as one more service of the bank, an aspect in which - precisely - the deception consisted. In this sense, reference is made to what was already said in section VI.1. (ii) (iii) of this judgment. On the other hand, Elca International Bank and Trust Limited was the deception deployed by the defendant A. If he had offered documents from a non-existent entity, that non-existent entity could not be sued. In this case, he offered to invest in an existing entity but one without a permit to capture funds at that time and issued certificates in its name but without registering the funds in it, so it is he and the bank whose service the offshore was going to be who must answer. Lastly, if Elca International Bank and Trust Limited (whose name changed to Interbank and Trust Limited) bears any liability, it would be joint and several (solidaria), and in that case the creditor can choose whom to bring the lawsuit against (Article 640 of the Civil Code: "The creditor may claim the debt against all joint and several (solidarios) debtors simultaneously or against only one of them"), without prejudice to the co-debtor bringing in the other co-debtors, a faculty that was not exercised in this case by the civil defendants. The passive standing (legitimación pasiva) of the bankruptcy of Banco Elca stems from two sources. First, because the law itself establishes an objective liability - which merits no assessment whatsoever - and is based on a kind of protection for third parties who saw the administrator acting in representation of the company and, although it may seem contradictory, on a form of "objectivized sanction towards the company for the culpa in eligiendo and in vigilando" with which the said representative was chosen. This is established by Article 106 subsections 2 and 3 of the Criminal Code when pointing out that jointly and severally (solidariamente) obligated with the perpetrators of the punishable act for the payment of damages and losses are "the legal persons whose managers, administrators, or legal representatives are found responsible for the punishable acts" as well as "the (...) legal persons owners of establishments of any nature, in which a punishable act is committed by their administrators, dependents, and other workers in their service." In the same sense, Article 137 of the 1941 Criminal Code (rules on civil liability in force according to Ley Nº 4981) establishes that societies answer jointly and severally (solidariamente) with the author "for the estafas (frauds), defraudaciones (defraudations), and falsificaciones (forgeries) of any kind that, in the exercise of their powers and on the occasion and in the performance of the service of those entities, are committed by their directors, managers, administrators, agents, or dependents." It has been duly demonstrated, as extensively set forth when weighing the evidence, that A. was the President, representative, and de facto administrator (with hierarchical authority superior to that of the general manager) of Banco Elca S.A. and that, acting in the functions pertaining to his position, he offered the offended entity the offshore services of that bank in Belize - which bore the name Elca International Bank and Trust Limited - thereby making it believe that it was the same entity, as normally functioned in other banking institutions in the country. A. has been found as the responsible author of the crime of estafa (fraud), an illicit act that was consummated in the facilities of Banco Elca in Costa Rica when R. appeared to deliver the check for three million dollars and, as A. was not there at that moment, it was received by H. who, after prior telephone communication with A. who gave him the instructions to follow, made a note - on letterhead paper of Elca International Bank and Trust Limited - giving instructions on how to proceed with said money. Therefore, the joint and several (solidaria) civil liability of Banco Elca (today of its Bankruptcy represented by the liquidating board (Junta Liquidadora), which is the succession of that legal person) is imposed. In this sense, both doctrine and jurisprudence have already pronounced themselves: ¬ "...since the year 1962, our jurisprudence has established that legal persons incur direct liability for the acts of their organs, both managerial and executive, which means that the fault of the organ is the fault of the legal person and, therefore, once the fault of the organ is established, and that it caused the damage in the exercise or on occasion of its functions, the legal person is automatically liable, and nothing relieves it of liability (...) Therefore, if the officer of a legal person is criminally liable for a crime committed in the exercise of his functions, the legal person has no other way to exonerate itself." TAMAYO JARAMILLO, J. Indemnización de los perjuicios en el proceso penal. Biblioteca Jurídica Diké, Medellín, 1st edition, 1993, pp. 137-138. ¬ "...by operation of law, the civil liability of legal persons is exhaustively determined, whose managers, administrators, or legal representatives are found responsible for punishable acts. Said norm does not establish any exception, in such a way that it is not possible to disapply it even in the event that the civilly responsible legal person is in turn the one injured by the criminal act committed by its representatives; to act otherwise would be contrary to law and therefore what is requested by the challenger must be disregarded." Sala Tercera de la Corte Suprema de Justicia, Vote No. 2005-1114 at 15:45 hrs. on September 29, 2005. But, on the other hand, even if there were no legal provision in that sense, said liability would still be established because if the circumstantial evidence analysis is carried out, it is determined, then, that there is no possibility of understanding that passive standing (legitimación pasiva) is held solely (though he may also be jointly and severally (solidariamente) liable, in which case the creditor reserves the possibility of proceeding against whom he deems pertinent, without having done so in this case and without that implying any procedural sanction against him: Articles 637, 640, and 646 of the Civil Code) by Elca International Bank and Trust Limited, as alleged by the defense of A. and the liquidating board (Junta Liquidadora). This is so because A. created an artificial, fictitious situation, to make it believed that it was another operation of Banco Elca S.A. in which case, in application of the theory of piercing the corporate veil (corrimiento del velo) and the appearance of the legal situation, Banco Elca S.A.

-that he was the true creator of the entire situation through his president- is the one who must answer (now through the representatives of the Liquidation Board of its decreed Bankruptcy, as provided by national legislation) since: “In large companies – very particularly corporations and other stock companies – the origin and nature of the operation, its orientation, and the radical transformations it may undergo emanate from a small group of people and sometimes from a single individual, who have full dominion and governance of the company. When the entity collapses, a profound deterioration or a maneuver aimed at defrauding other shareholders occurs, poorly rendered accounts will hardly appear. Fraudulent acts take other forms, of much greater caliber, which have sometimes been carried out within a more or less formal framework and within the governance powers of their leaders. But they abusively exceed what is permitted and, in violation of the duties of good administration, profit from criminal acts and harm the rest of the shareholders or obligate them abusively (…) The most common and skillful are the emptying of companies and the veil, under which a fraudulent reality is covered” MILLAN, Alberto. Los delitos de administración fraudulenta y desbaratamiento de derechos acordados. Buenos Aires, 1976, pp. 39-40. Circumstantial evidence constitutes the common way of proving certain types of criminality, particularly when it involves “hiding” realities through legal shells. Therefore, in crimes such as fraud, simulation fraud, and fraudulent administration, said evidence is extremely important, which, according to the system of evidentiary freedom that governs us (article 182 of the Code of Criminal Procedure), is fully admissible (RODRÍGUEZ RESCIA, Marcos and ESPINOZA OBANDO, Marianella. Fraude de simulación, IJSA; San José, 1st edition, 1997; CASTILLO, Francisco. “La prueba indiciaria”. In: Revista Judicial No. 1, San José, 1979; GIANTURCO, Vico. Los indicios en el proceso penal. Translation by Julio Romero Soto, Bogotá, 1974; ROCHA DEGREEF, Hugo. Presunciones e indicios en juicio penal, Ediar S.A., 2nd edition, Buenos Aires, 1997; JINESTA LOBO, Ernesto. La simulación en el derecho privado. Escuela Judicial, San José; 1990). Among the indicators to determine the reality of what happened - which predominates over the form or appearance given to it - which are not numerus clausus and following the exposition of the last author, the following applicable to this case appear: *Causa simulandi*, motive or interest one has to present as real something that is not: C. required new investments to clean up his Bank and to be able to carry out other operations in which he was immersed. By May 2002, the bank had undergone states of financial irregularity decreed by SUGEF, A. was immersed in new financial projects (founder of Hospital Cima San José, among others), the national banking market maintained strong competition with powerful international banks that were arriving in the country and forced alliances, mergers, or absorption of small banks, Banco Elca did not have at the time any offshore branch that other banks maintained, which reduced its competitiveness. For this reason, A - who personally used to attend to important clients of the institution - so that the diverse operations that M. was willing to carry out would not leave his institution, offers the services of an offshore branch in Belize that A. knew was only in process and was not yet authorized to capture funds, because F. and G. told him so on the occasion of that specific negotiation. A. presents this as another service of Banco Elca S.A. to the point that the money is received at its facilities, where instructions to the supposed Belize bank are made on letterhead of the Belize bank, which bore the same name and the same external signs as the national one, all of which is discussed before high managerial levels of the Costa Rican bank and delivering in Costa Rica, through the personnel of Banco Elca S.A. and at its facilities, the investment certificates and the interest coupons of the Belize bank, to later request their custody. *Neccesitas:* The accused A: needed that simulated business to occur because from it he derived benefits and obtained money to meet his obligations. Note that he managed to obtain three million dollars (plus some immediate or momentary liquidity flow from using the bank's platform for international transfers) that ended up in the account of Bosques de Ayarco BA S.A. that he dominated, an account that A. used to pay overdrafts as indicated by H. *Affectio:* the existence of family, friendship, dependency, business, or other relationships are important for the simulator. Since A could not perform the cunning act by himself, he used the wide prestige and respect that all his employees and all the institution's personnel rendered him, because he behaved as the general hierarchical superior, above the general manager and not as a "passive" board president. It is important to remember that there was no witness who referred to C. in a disqualifying manner. There was one who indicated they had him “covered in medals” although later they would fall off one by one (Varela). All the witnesses highlighted his people skills, his kind and respectful treatment, and the trust he inspired, as he even prayed in the mornings before starting the workday (in that sense E). The trust, respect, and even unconditional admiration held for him was the norm. A. uses this so that people he had brought to the bank (H. and J.) would keep silent many aspects they knew were not correct at that moment and trust that A. would not carry out any act with an illicit result even if the means were not the regulated ones. Therefore, in the meeting with G. and his associates, A. calls people from the bank with important hierarchical positions and before them speaks of the offshore branch as another service of Banco Elca S.A., all of them knowing that it was not yet operational but only in process, which gave a veneer of verisimilitude, before his trusted personnel, to A.'s actions, especially when he said he was solvent and committed his assets and prestige for the final satisfaction of the client. A. places someone of his complete trust, such as J., at the head of the Belize operation, a person of recognized banking prestige until then, who had opened offshore branches for other banks (Banco del Comercio, for example) and who held an honorary position in the country where the branch would be opened, so there was no reason whatsoever to doubt the legality of what A. presented at that moment as real. *Notitia or knowledge of the simulation by the accomplice:* How would J. not know that the offshore bank in Belize did not exist or did not have the authorizations to capture money if he himself was aware of the procedures? How would he not realize, when signing the investment certificate, that situation? He evidently knew about said situation and he himself said so. Even Bolívar related that F. once had him sign other certificates of that bank and told him that the one in Belize was a clone of the one in Costa Rica and that those authorized to sign locally were also authorized abroad, which F. himself knew was not the case. When F. and A. sign the investment certificates of Elca International Bank and Trust Limited in favor of Night Glow S.A., they knew that the bank was not operating but that their client trusted in what they made appear real to him, both in the exercise of their positions as President and advisor of Banco Elca S.A. and acting in the facilities of this bank. *Habitus, character:* any antisocial or anti-juridical conduct is important and must be considered. The witnesses indicated that Night Glow S.A. was not the only entity offered the offshore bank service of Banco Elca S.A. but that A. offered it left and right and "they couldn't shut him up" as H. indicated. He related that he signed certificates of that bank in favor of J. and there is also admitted documentary evidence referring to similar certificates in favor of Cori Consulting and Financial Services S.A., facts that were not the subject of this debate due to having reached a conciliatory agreement. It was said in section VI.1 (ii) (iii) that A. offered the offshore branch without reservations as another service of the bank. This reveals a pattern of behavior of the accused A. and the lack of fault of the victim since all of them, recognized national and foreign businesspersons with extensive financial, banking, and investment backgrounds, believed in A. because of the way he presented the business (in the facilities of Banco Elca, with its managerial personnel, on letterhead of the Belize entity, alluding to an entity with the same name as the Bank and the same external signs, and using the trust placed in him due to the prestige he had until then). It will also be determined in this judgment that these were not the only irregular, immoral, or illicit acts committed by A. but that, some time later, he created fictitious loans, managed to evade the normal procedure for credit requests by approving or extending them himself alone, in favor of companies related to himself, authorized early redemptions of certificates in favor of his family but not of third parties, and knowing the serious situation the bank was undergoing that would warrant the imminent decree of a degree of irregularity by SUGEF, he created fictitious operations to "dress up" the accounting reports of the institution, etc. That is, there is a simultaneous and subsequent behavior of the accused A. that denotes the disrespect for norms and procedures and his eagerness to present as real forms that were not. *Subfortuna:* the lack of economic means necessary to continue carrying out the banking activity on the part of the simulator is evidenced, in this case in that, although personally and before any average person he maintained a solvent economic position, the institution he represented did not have it in the banking environment. That is, it lacked the resources required to remain in the financial system with an open and regularly operating bank. Let us remember that although the certificates in question are issued in May 2002 and SUGEF notifies it some time later that it must significantly increase reserves due to various irregularities in credits that had been observed (many of which are intimately and directly related to A.'s personal management as will be analyzed in other considering clauses), several witnesses said that the bank had already been in a significant degree of irregularity, that F. lent A. his accounts to obtain resources that he could no longer obtain by himself, etc. (thus the statements of H., C., etc.), so obtaining resources was pressing for A., and doing so by pretending they would be invested in an offshore branch of that bank abroad (which, in itself, was a common practice in other banks of the country at that time) was the appropriate way to obtain them. *Banking movement:* asset-related legal business always entails a banking movement, especially the magnitude of certain operations. In this case, it is accredited that the sum of three million dollars was debited from the account of Montañas Mágicas del Sur (also owned by M.) - along with other amounts not claimed - and with the manager's check that was created - in the name of the bank in which A. had the account of his company Bosques de Ayarco S.A., because A. requested it as part of the procedure to enter the money into the account in Belize - it is given to the person authorized for it by C., none other than the general manager of Banco Elca. Later, the money is deposited in the account of Bosques de Ayarco, owned by C. as stated on folios 53-54 of the complaint file of Cori Consulting and Financial Services and from there it leaves for various accounts related to C. as indicated by H. It is not recorded that A. at any time transferred that sum to any international bank in the name of the offended entity (and not his own), so the mention contained in the investment certificates referring to Elca International Bank and Trust Limited is only that, letters on paper, without that money having been received by the bank that, later, was authorized to operate but with a name change (folios 35 to 40 of the complaint file of Cori Consulting and Financial Services S.A.), all without the victim's knowledge, and it is sold to the Venezuelans as A. himself said and is recorded in the email at folio 7209 of volume XV principal where he attempts to release himself from the obligation based on the cited legal forms, forgetting these elements that stood out from the appearances of the business originally agreed upon. *Retentio possessionis:* maintaining possession of the thing or lack of execution of the simulated contract: it is evidenced when the accused A. and F. keep under their custody (the latter materially and the former by dominating the situation) the original investment titles and do not give them to R. despite his constant requests. That possession of the titles was achieved, also, thanks to the trust and credibility that the cited persons deserved and the fact that, F. being consul in Belize and tasked with traveling constantly, eventually he would have more facilities to negotiate the cited securities if required (as was told to the victim). However, the retention of the titles evidences the need for the victims not to have documents that would prove the falsity of everything that was being simulated. On the other hand, the retention of possession of everything that happened in the Belize Bank is evidenced because even the expenses of that institution were attempted to be introduced into the financial statements of Banco Elca S.A. (see folio 10496 of volume XIX principal), which determines the dominion of one over the other. *Tempus:* it has already been said that there is suspicion due to the time of conclusion of these contracts because by May 2002, Banco Elca S.A. required significant resources with which to meet the diverse obligations it had, including maintaining a facade of normality before the national supervisory institutions. A. himself indicated that he had had a significant "run" of investors as a result of acts in which a presumed investor (M) was involved, who dedicated himself to picketing in front of the bank, and H. related that this caused so much damage to Banco Elca S.A. that C. began to receive money from "mechudos," that is, casino investors, with cash from Colombia, etc. *Insidia:* maneuvers of the simulator that exceed the levels of social tolerance because he makes the victim participate in the simulation: how not to remember that A. summons the plaintiff to meetings in Guatemala to make him participate in supposed forms of payment and meetings for him to capitalize his investments? *Provisio:* these are provisions of the simulator to achieve the end and avoid the betrayal of the accomplice (Varela saw how A., shortly before the intervention, took documentation from the bank; later, documents related to this operation appear at his father's house. Álvaro Castro indicated that A. called him to tell him to align himself with him or with F. and G. and, in this case, "little papers" that compromised him would appear, with which he intended to guard his loyalty and silence. *Incuria:* carelessness regarding accidental elements of the simulated business. Despite what has been said so far, it is clear that A. neglected details that, however, were useful to him to induce the victim into the deception. He uses as the name of the offshore branch the same "Elca Internacional" that the controlling corporation of Banco Elca S.A. had (Corporación Elca Internacional S.A.) and the external signs are the same (if one observes the logo of the original certificates compared to contemporaneous documents, it is clearly perceived that it is the same way of writing the name, the same colors, etc.) and he holds the meetings within the same Banco Elca S.A., summoning the managerial officers of the institution, who thus become witnesses to the accredited irregularity. A. also neglected, in this attempt to separate both institutions, that a special account had been opened in the name of J. in the financial statements of Banco Elca with which the expenses of the supposed Belize bank would be paid (folio 10496 of volume XIX) and that, to start its operations, at a date much later than the victim's certificates, part of the local personnel had to be taken there, with expenses covered by Banco Elca S.A. as the compliance officer indicated. *Inertia:* the accomplice shows a passive attitude. Note that according to what G. indicated in debate, J. appeared willing, in C.'s absence, to give them various documents. He always agreed that the money was going to be delivered, that they were making arrangements, and gave excuses for the delay, but the one who ended up giving the final word (negotiating to convert them into shareholders of the bank in Belize and saying, simply and plainly, that he was not going to pay) was C.. *Dominance:* dominant role of the principal, who in this case is A., whom everyone obeys and pays homage to, believing everything he says and trusting everything he does. *Endoprocedural indicators:* which manifest themselves with the sparseness in explanations of core topics and eloquence in trivial or marginal topics; the occlusive and omissive conduct tending to obstruct the evidentiary work, manifested by the original refusal to hand over the original documents displayed by F. or in the formulation of a material and technical defense strategy, tending to blame everyone - except A. - for everything and in presentations with broad analysis of small details that leave aside the central theme. All these indicators, assessed together, allow concluding that what happened was not that an international bank intervened as a third party in a national negotiation as has been attempted to make it seem, but rather that Banco Elca S.A., through its President and legal representative, simulated the existence in conditions of normality of an institution to capture money in its name that, in reality, never entered said entity because it was not only proven that the money entered the account of Bosques de Ayarco S.A. belonging to or dominated by C., but that, at that time, the cited institution did not have a license from Belize to capture funds. Consequently, the one who created the appearance (Banco Elca S.A. through its officers) is the one who must answer and not necessarily a third party whose name was used. The same would occur if the used entity had not existed at all (and not, as in this case, that it was in process but could not operate in terms of capturing funds) or if, existing legally and lawfully, its name is used, without its consent, for others' businesses. It is these who answer and not those whose name was improperly used. All this, of course, without prejudice to any joint and several liability that may exist (since at the time of the facts the officers of the Belize entity were A. and F.), which as such does not prevent Banco Elca S.A., now its Bankruptcy and its Liquidation Board, from being required to answer in this case, at the free choice of the civil plaintiff as occurs in joint and several obligations (article 640 of the Civil Code)…. By virtue of all the foregoing, if - as has been taken as proven - C. had the intention, when issuing certificates of Elca International Bank and Trust Limited of Belize, to present that institution as an offshore branch of Banco Elca S.A., an entity in which he acted as its representative, to later use the asset and legal separation of the companies in order to evade responsibility for the money received, it is clear that he abused the law and, therefore, one must not look at the legal form (two separate companies) but at the appearance presented before the victims (C. acting in representation of Banco Elca S.A. and committing himself in the name of that institution for which it answers) and, therefore, the court - having the obligation to prevent a crime from having major legal consequences - cannot consider that Banco Elca S.A. (now its bankruptcy and Liquidation Board) lacks civil liability. It is by virtue of what has been said that the exceptions of lack of passive standing, lack of active standing, lack of right, and the generic sine actione agit (see folio 13853) must be rejected and the civil claim for damages filed by Night Glow S.A. must be upheld, not only against C. acting personally (as the perpetrator of the crime) but also against Banco Elca S.A., now its Bankruptcy represented by the Liquidation Board. Night Glow S.A. has the right to have its money returned to it because it was delivered in good faith and involved in an already declared crime. Although the money may have come from another entity (Montañas Mágicas del Sur S.A.), there is freedom of disposition of assets, and if the representative of Montañas Mágicas S.A. invests it in the name of Night Glow S.A. and the latter does not recover the investment, it is the latter who has active standing to sue, without prejudice to the liability that the representative may have for that transaction if some illicit act had occurred, which this is not the venue to declare, nor do the civil defendants have an interest in it. It does not matter, for purposes of active standing, who is the sole owner of the shares of such entities because its general judicial representative always acted in the process according to the documents at folio 952 of volume III principal and 118-119 of the civil claim file (among others) and its special legal representatives (see folio 121 of the civil claim file). A. and the Bankruptcy of Banco Elca S.A. (as succession of the bankrupt Banco Elca S.A.) have standing to be sued civilly, one being the perpetrator of the crime and the other the company in which it was committed, by its legal representative, administrator, and legal representative, and giving the appearance that he was committing that institution and acting within the proper framework of his functions. There is current interest because the damages and losses have not been compensated; they have already come into legal existence, they are not expectations of right, and they are not time-barred because the period for that runs from their recognition in judgment (article 138 of the rules in force of the 1941 Penal Code on civil liability according to Law No. 4891 and 868 of the Civil Code).” In summary, as this Chamber already stated above, agreeing with the weighed and documented exposition of the lower court, since A. acted in the use of his capacity as president of Banco Elca and the credentials it possessed, the Bank assumed the condition of joint and several obligor for the illicit acts in which he incurred. This being so, although the transaction for three million dollars was made with the supposed agency located in Belize, this is no obstacle for, in extra-contractual terms, the Bankruptcy of Banco Elca to have to assume that liability. Both grounds lack merit.

**XXXVIII.-** As a fourth ground of form, the appellants return to the topic that only the plaintiffs said they did not know that the *offshore* agency of Banco Elca in Belize had no permit to capture funds; that it later obtained that permit; that the transaction with Mr. G. was a personal business of A. and that the agency in Belize belonged to Corporación Elca, and not to Banco Elca, for which reason the latter should not answer; that it was not demonstrated that the funds were not credited in that place; that there must be sufficient provisions in said entity to honor the debt with G.; and, again, that there is no causal link that commits or makes their represented party liable for these facts. **The claim is not receivable**.

Once again, it must be explained to the appellants that their analysis stems from erroneous normative premises, as it takes for granted that this was a financial transaction and, based on that fact and the provisions regulating the matter, they draw their conclusions. However, as has been repeatedly stated in this resolution, this was not a normal financial transaction, but rather a crime expressed through it, thereby changing the applicable regulations, as extensively set forth in the previous recital. Since the explanation is provided there, a segment addressing all the topics the appellants once again raise in this ground, the parties are referred to what was decided.

**XXXIX.-** The next issue challenged by the appellants is the *legitimatio ad causam* activa held by Night Glow sociedad anónima, which was recognized after being discussed in the proceedings, despite the record showing that the money delivered to A. came from the account of another sociedad anónima owned by the same businessman, namely Montañas Mágicas del Sur. Therefore, they affirm, the former could not appear in the proceedings as a civil plaintiff nor be compensated, given that it was not harmed and cannot act on behalf of the other company. Since no representative of Montañas Mágicas del Sur appeared, the action was not substantiable or grantable. Furthermore, it was not proven through the means prescribed by the Commercial Code who the shareholders of both legal entities are. Both arguments are not admissible. In a criminal proceeding, it is not required, as the appellants indicate, that the status of shareholders be demonstrated through the Shareholders' Registry Book, which may be required in other procedures, but not in criminal proceedings, where, as is known, the principle of freedom of evidence stipulated in Article 182 of the Criminal Procedure Code governs. By application of this principle, relevant facts can be demonstrated by any lawfully obtained means, such as the testimonies given at trial, none of which cast any doubt whatsoever that G. was the sole shareholder of those two legal entities; rather, those who claimed to know of the matter confirmed it as such. On the other hand, the fact that the money came from another sociedad anónima or, in general, any other person, to be invested on behalf of Night Glow, does not mean that the former had to appear instead of the latter. The important thing is that the latter is the harmed party, because the money was deposited in its favor. Consider, for example, funds that any person deposits on behalf of another, or lends to another to invest. Obviously, in such situations, the party aggrieved by any caprice is the beneficiary of the deposit or loan, and not the one who delivered the money under any title (depositor or lender, for example). In short, as in any other similar scenario, the party aggrieved is the holder of the right, the one in whose favor the deposit or investment was made, and not the source of the funds, since nothing prevents, in accordance with the principle of free disposition of assets, any person from making an investment for the benefit of another (provided the latter does not reject it), the latter, and not the former, being the one who would be harmed if such funds disappear or deteriorate. In summary, the fact that the money invested on behalf of Night Glow came from Montañas Mágicas del Sur, or any other company or person, did not imply that the latter had to appear at trial, because the status of aggrieved party belongs to Night Glow, and not the source of the funds, whose origin or title is irrelevant for these purposes. Regarding these questions, it is once again worthwhile to refer to what was established by the lower court, which stands out in clarity and forcefulness. *"Regarding the substantive defense of lack of standing to sue, it is also not determined to be admissible because, as will be extensively analyzed when the specific topic is addressed, G., as the sole owner of the share capital of Night Glow S.A. (as indicated by him as well as R. and J., and as recorded in the documents on pages 16144-16149 of main volume XXVI and 16630 of volume XXVII, which is a public document and has not been argued as false in the corresponding channel: Article 370 of the Civil Procedure Code), is the one who gives the money and authorizes R. to deliver the cashier's checks to make the investment of three million dollars. According to the instructions given, R. delivers the money to H. - under orders from C., who was acting as President of Banco Elca (since A. was not present at that time, as indicated by H., who stated that he called him and A. told him to receive the checks and gave him the specifications to issue the investment certificates in the name of Night Glow S.A.) - so that the former, in the aforementioned capacity, has standing to sue the person who subsequently refused to return the invested resources and who had given him incorrect information about said investment, who is the defendant here, who acted, at the time, both personally and in his capacity as President of Banco Elca S.A., for which reason he can now be sued personally and the same can be done with respect to those who now hold the representation of Banco Elca, as will be analyzed in due course. The assertions by Mr. C.'s defense to the effect that it was not proven that M. is the owner and sole shareholder of Night Glow S.A. or Montañas Mágicas S.A., or that the money belongs to the latter entity and not the former, meaning that the representatives of Montañas Mágicas del Sur S.A. are the ones who must sue, are also not admissible. It must be remembered that in criminal matters, the principle of freedom of evidence governs (Article 182 of the Criminal Procedure Code), meaning everything can be proven by any legitimate means of evidence unless there is a prohibitive provision to the contrary, which does not exist for these purposes. Mr. G., as well as Mr. R. and J., stated that both Montañas Mágicas del Sur S.A. and Night Glow S.A. are companies whose sole shareholder is Mr. G., and that although the money was taken from the accounts of the first company, it was to invest in certificates of deposit in the name of the second company, the principle of free disposition of assets existing which makes this possible, such that the one with standing to sue is the company in whose name the investment certificates were created (Night Glow S.A.), even if the resources came from another source, and therefore no defect is observed in this regard. Moreover, if there is any dispute over the ownership of the money, it is something that the entities Montañas Mágicas del Sur S.A. and Night Glow S.A. must resolve, without the civil defendants or criminal defendants having any interest in any eventual controversy that might arise, since these defendants have standing to be sued by those in whose name the instruments were issued, as was indeed done, regardless of whether there was any agreement for the creation of those documents."* (pages 17037-17038). It is therefore explained that, contrary to what was held by the petitioners, the sociedad anónima Night Glow did have standing to appear in the proceedings and that the legal capacity of Mr. G. over it was correctly accredited. Consequently, with everything stated, the ground is declared without merit.

**XL.-** In the last ground regarding procedural form, the appellants assert that the judgment ordered the liquidation of interest on the sums owed even after the bankruptcy of Banco Elca was declared, which was declared on February 24, 2005. This goes against what is established by Article 885 of the Commercial Code, which immediately stops the accrual of ordinary and default interest against the bankruptcy estate from that moment forward. They add that, besides placing the other creditors at a disadvantage, it represented an excess by the lower court, by carrying out a liquidation that the civil plaintiff did not perform, which should have been rejected as generic. Furthermore, they say, the rate used is that applicable to civil obligations, which is incorrect. Finally, the complainants say, the request was to protect the deposits, whereas the lower court grants them as compensation. The argument is not admissible. Indeed, the rate used is that corresponding to civil obligations, because the liability arising from the facts is civil in nature, and not commercial or of any other type. This, it must be remembered again, does not stem from a commercial act, but from a criminal one, and civil legislation is therefore applicable in this regard. For this same reason, the cessation of interest ordered by commercial legislation regarding the entity's obligations upon bankruptcy is not suitable for this case, wherein what is at issue is not a commercial obligation and its ordinary or default interest, but a civil liability arising from a crime, which has a status that effectively makes it different from the other obligations of the bankrupt entity, which arose as commercial in nature and, consequently, are governed by the regulation that imposes such cessation. But, as has been emphasized ad nauseam, in this matter the legal category and discipline of the facts is different, because it involves a criminal illicit act and not a mere commercial transaction, a distinction that the appellants have systematically omitted. Furthermore, it is not true that the plaintiff did not perform a liquidation of the sums claimed. For this purpose, it referred to the rates in force in each period, which are and can be known by the interested parties. In other words, when indicating that the liquidation of interest must be carried out according to the rate in force during the different periods that make up the time elapsed from the punishable act, it is not necessary to ritually mention the different rates in force in each period, as these are set by the Central Bank of Costa Rica, without needing proof as they are a parameter of general knowledge. On the other hand, the legal concept under which the compensation for interest is requested is irrelevant, with the Judges having the duty to apply the regulations in force, in accordance with the principle *iura novit curia*, as it is a matter of Law. The relevant point is that the party demanded this compensation and it was grantable, even if the normative basis was different from the one mentioned by the plaintiff.

**XLI.-** In the ground regarding substantive issues, the matter is raised again that the interest was not liquidated by the plaintiff according to the rate in force for each of the elapsed periods, and therefore, by doing so on its own account, the Court substituted the will of the plaintiff and granted more than requested. This issue was already discussed and resolved in the previous recital, so the established finding must be upheld.

**XLII.-** In the sole ground comprising his cross-appeal, the representative of the complainant and civil plaintiff claims the incorrect application of the substantive rules. He argues that, when liquidating his fees, the lower court applied the tariff schedule No. 20307-J, but that his and his client’s intervention in this matter began on August 22, 2005, when the new tariff schedule, No. 32493-J (in force since its publication in La Gaceta No. 150 of August 5, 2005), was already in effect. He indicates that, although that executive decree contains a transitional provision prescribing that proceedings already initiated are governed by the repealed schedule, the truth is that, for his client, the proceeding began in August 2005, when she intervened in it. The ground is not sustainable. Before addressing the claim, it must be clarified to the party that the counter-evidence to the testimony of Dr. Carazo Serrano offered by the cross-appellant on page 18412 lost its procedural relevance, as the testimony of said physician was rejected at this level of review (page 18550), and its taking was therefore not pertinent. Regarding the argument presented by attorney R., it must be pointed out that a proceeding does not begin for a party when they intervene, but when the processing of the case has started. Thus, although the intervention may be late, the truth is that this cannot lead to holding that the "proceeding began" only then, which would make the "beginning" of each procedural step relative to each of the participants, with the consequence that, as in this matter, professional fees would be different according to the date one began participating in the proceedings. On the contrary, it must be clear that the beginning of the proceeding is one thing, and the beginning of the intervention in it is another, and they are not the same. The former can develop and exist even if a specific party does not intervene, or when their intervention is delayed; the latter starts with the proceeding or, as happens here, finds it already started. Consequently, it is not admissible to argue, as the appellant says, that because his client joined the proceeding on August 22, 2005, the applicable fee schedule is the one published a few days earlier, because this schedule contains a transitional provision that stipulates that for matters already commenced, the previous schedule would continue to apply. Therefore, since this case is among those that had begun before the enactment of the professional fee schedule of the year 2005, it must continue to be governed by the one that preceded it, that is, Executive Decree 20307-J. In conclusion, the point is correctly resolved by the Court and the appeal must be declared without merit.

**XLIII.-** Regarding the evidence presented by defense attorney Elizondo Breedy on June 29, which appears on pages 18673 et seq., it should be noted that, as the appellant himself acknowledges, concerning the nature of the *back to back* operations, they provide no novel argument, as that element was already discussed in previous pages. The fact that they were carried out by the representative of Banco Elca's creditors on the Liquidation Board does not add any other factor of consideration to A.'s actions analyzed here, nor does it contradict in the slightest the fraudulent maneuvers that were developed under the pretext of said operations.

**XLIV.-** Next, concerning the behavior observed by the defendant A.

as a person deprived of liberty, and the request that the "cruel punishment" (in the words of the defense counsel) imposed on this fifty-year-old citizen be reduced, the matter was also resolved in the preceding pages, declaring that said punishment is not considered disproportionate and, the conditions of the accused in his capacity as a person deprived of liberty, may be taken into account by the Prison Administration or even the Sentence Enforcement Judge to determine the specific patterns by which the serving of the prison sentence imposed in the judgment on A. will be governed, according to the circumstances.

Por Tanto:

It is declared that the cassation appeals and the joinder filed are without merit.

dm

Revisión del Documento *040053740647PE* Res: 2009-00870 SALA TERCERA DE LA CORTE SUPREMA DE JUSTICIA. San José, a las catorce horas y veinte minutos del nueve de julio del dos mil nueve.

Recurso de casación, interpuesto en la presente causa seguida contra C, […] por los delitos de Estafa Mayor Agravada en perjuicio de NIGHT GLOW S. A.; Administración Fraudulenta y Uso de Información Privilegiada en perjuicio de BANCO ELCA S.A.; Suministro De Información Bancaria Falsa, Intermediación Financiera Ilegal Y Autorización de Actos Indebidos en perjuicio del SISTEMA BANCARIO NACIONAL; contra J, […], por el delito de Administración Fraudulenta en perjuicio de BANCO ELCA S.A. y contra E. por los delitos de Complicidad en Administración Fraudulenta y Uso de Información Privilegiada en perjuicio de BANCO ELCA S.A. Intervienen en la decisión del recurso, los Magistrados José Manuel Arroyo Gutiérrez, Presidente, Jesús Alberto Ramírez Quirós, Alfonso Chaves Ramírez, Magda Pereira Villalobos y María Elena Gómez Cortés, esta última en condición de Magistrada Suplente. También intervienen en esta instancia, los licenciados Juan Carlos Sbravatti Montoya, Gonzalo Elizondo Freddy, Elizabeth Montero Mena, Odilia Arrieta, en sus condiciones de defensores de los imputados. Como querellante y actor civil figura Night Glow S.A. representada por J. y los abogados Luis Lechtman Meltzer y Gustavo Adolfo Corella. Se apersonó el representante del Ministerio Público.

Resultando:

1.- Mediante sentencia N° 165-2008, dictada a las catorce horas, del treinta de abril del dos mil ocho, el Tribunal de Juicio del Segundo Circuito Judicial de San José, resolvió: “POR TANTO: De conformidad con lo establecido en los artículos 24, 39 y 41 de la Constitución Política; Convención Interamericana de Derecho Internacional Privado (Código Bustamante); Convención de Viena sobre las Relaciones Consulares; artículo 26 de la Ley sobre registro, secuestro, examen de documentos privados e intervención de las comunicaciones; artículo 1 de la Ley Orgánica del Ministerio de Relaciones Exteriores y Culto; artículos 66 y 67 de la Ley Orgánica del Servicio Exterior; artículos 4, 12, 41, 47 y 66 de la Ley Orgánica del Servicio Consular; numerales 14, 32 párrafo final y 34 inciso k de la Ley Orgánica del Notariado; numerales 1, 18 a 23, 30, 31, 45, 47, 50, 51, 71 a 77, 103, 106, 109, 216, 222, 239, 240, 241, 245 del Código Penal; artículos 115 a 117, 120, 141-142, 147, 156-157 inciso b, 159 y 175 de la Ley Orgánica del Banco Central de Costa Rica; reglas vigentes del Código Penal de 1941 sobre responsabilidad civil según ley Nº 4981; artículos 1, 9, 30 inciso a), 31,175 a 179, 182, 184, 209, 238 a 243, 253-254, 257-258, 265 a 270, 311 inciso d), 324 a 372 y 376 a 379 del Código Procesal Penal; artículos 20 a 22, 868, 871,1045 y 1163 del Código Civil; numerales 2 y 35 de la Ley de Promoción y Defensa Efectiva del Consumidor Nº 7472; artículos 419, 497, 529, 670, 984 del Código de Comercio; artículos 17, 40, 41 y 44 del decreto sobre honorarios de abogado Nº 20307-J y transitorio I del arancel de honorarios por servicios profesionales de abogacía y notariado Nº 32493-J, por unanimidad en todos los extremos decisorios:

(i) Se rechaza el reproche formulado por la defensa de C. referido a la falta de requisitos formales de la querella y la falta de legitimación activa del querellante; (ii) Se rechaza la actividad procesal defectuosa planteada por la defensa de C. contra la legitimidad de la prueba contenida en el legajo Nº 91; (iii) Se acoge el alegato de la defensa de J. referente a la ilegitimidad de los documentos de folios 15846 a 15909 del tomo XXVI principal referentes a estados de cuenta de Inversiones 3000 S.A. y Grupo Prisma Asem S.A. aportados por la defensa de C. y, por ende, se suprimen dichos documentos y todo lo de ellos derivado (vgr. referencias de testigos); (iv) Se dicta SOBRESEIMIENTO DEFINITIVO POR EXTINCIÓN DE LA ACCIÓN PENAL por muerte, a favor de E. por los delitos de COMPLICIDAD EN ADMINISTRACIÓN FRAUDULENTA y USO DE INFORMACIÓN PRIVILEGIADA que, en perjuicio de BANCO ELCA S.A. se le han venido atribuyendo, resolviéndose sin especial condena en ambas costas del proceso; (v) En virtud del principio in dubio pro reo se ABSUELVE de toda pena y responsabilidad a J. por el delito de ADMINISTRACIÓN FRAUDULENTA que, en perjuicio de BANCO ELCA S.A. se le ha venido atribuyendo, resolviéndose sin especial condena en costas procesales y personales de la acusación fiscal.

(vi) Se declara a C. AUTOR RESPONSABLE de los delitos de ESTAFA MAYOR AGRAVADA en perjuicio de NIGHT GLOW S.A. representada por M. (cc. R. ) y J; ADMINISTRACIÓN FRAUDULENTA DE MAYOR CUANTÍA y USO DE INFORMACIÓN PRIVILEGIADA ambos en perjuicio de BANCO ELCA S.A. y del delito de SUMINISTRO DE INFORMACIÓN BANCARIA FALSA en perjuicio del SISTEMA BANCARIO NACIONAL todos en concurso material y, en dicha condición, se le imponen las siguientes penas: por el primer delito OCHO AÑOS DE PRISIÓN; por el segundo delito OCHO AÑOS DE PRISIÓN; por el tercer delito TRES AÑOS DE PRISIÓN y por el cuarto delito CUATRO AÑOS DE PRISIÓN, para un total de VEINTITRÉS AÑOS DE PRISIÓN que deberá descontar efectivamente en el centro penitenciario respectivo, conforme lo determine la normativa entonces vigente y previo abono de la prisión preventiva que hubiere cumplido; (vii) Se declaran sin lugar las excepciones de falta de legitimación activa y pasiva, falta de causa, litis pendencia, litis consorcio pasivo necesario incompleto y la genérica sine actione agit y parcialmente con lugar la de falta de derecho, todas interpuestas por la Junta Liquidadora de la Quiebra del Banco Elca y por la defensa civil de C. contra la demanda civil resarcitoria establecida en su contra por Night Glow S.A.; (viii) Se declara PARCIALMENTE CON LUGAR la demanda civil resarcitoria establecida por NIGHT GLOW S.A. contra C. y la QUIEBRA DEL BANCO ELCA a quienes se obliga a pagar, solidariamente y a favor del primero, los siguientes rubros y montos: a)- por daño material la suma de tres millones de dólares de Estados Unidos de Norteamérica; b)- por lucro cesante consistente en los intereses al tipo legal civil (certificados de depósito en dólares a seis meses plazo del Banco Nacional) sobre la citada suma desde el diecisiete de setiembre de dos mil tres hasta el cinco de julio de dos mil cinco y desde el nueve de noviembre de dos mil cinco al veintidós de abril de dos mil ocho equivalentes a quinientos setenta y nueve mil doscientos catorce dólares de Estados Unidos de Norteamérica con cincuenta y tres centavos, para un total de tres millones quinientos setenta y nueve mil doscientos catorce dólares de Estados Unidos de Norteamérica con cincuenta y tres centavos, suma a la que deben restarse los doscientos cincuenta mil dólares pagados por conciliaciones de otros coimputados por estos mismos hechos, quedando un monto al descubierto y pendiente de pago de tres millones trescientos veintinueve mil doscientos catorce dólares de Estados Unidos de Norteamérica con cincuenta y tres centavos, que es el monto sobre el que se calcularán las costas; c)- las costas procesales y personales de la demanda civil resarcitoria, cuyos honorarios profesionales se liquidan en la suma de noventa y ocho millones doscientos noventa y seis mil seiscientos cincuenta colones con diecisiete céntimos.

(ix) Se declara sin lugar la excepción de prescripción de intereses planteada por la Junta Liquidadora de la Quiebra del Banco Elca S.A. y por la defensa civil de C.

(x) Son las costas procesales y personales de la querella y del proceso penal a cargo del encartado condenado en lo que a él concierne, fijándose los honorarios profesionales de la querella en la suma de treinta mil colones.

(xi) Se dejan sin efecto a partir de este momento las medidas cautelares decretadas contra J. y, por ende, se ordena comunicar inmediatamente a la Dirección General de Migración y Extranjería el levantamiento del impedimento de salida del país; se devolverá su pasaporte personalmente a don J. y se deberá cancelar la hipoteca que pesa sobre el inmueble del Partido de San José, matrícula […].

(xii) Se REVOCAN las medidas cautelares decretadas contra el acusado C y, por existir peligro de fuga ante la alta penalidad impuesta y por el poder económico y contactos internacionales con que cuenta el encartado lo que queda evidenciado en la cantidad de cuentas bancarias y sociedades anónimas que se ha tenido por acreditado que ha manejado como accionista único sin aparecer directamente como representante de ellas, todo lo cual le facilitaría contar con recursos para salir del país de forma ilegal y mantenerse fuera a fin de no afrontar las consecuencias de sus actos aquí establecidas y señaladas con una pena de prisión alta, se dicta PRISIÓN PREVENTIVA por el plazo de OCHO MESES a correr desde esta fecha y hasta el TREINTA DE DICIEMBRE DE DOS MIL OCHO o, en su defecto, desde que se ejecute la captura. Por ende, una vez detenido el imputado se levantará el impedimento de salida del país que pesa en su contra mediante comunicado que se hará a la Dirección General de Migración y Extranjería, se le entregará a la persona por él autorizada mediante documento autenticado su pasaporte, se devolverá a la fiadora el dinero depositado y se levantará la hipoteca que pesa sobre la finca del Partido de San José, matrícula […] a nombre de Cerros de Carrillo S.A..

(xiii) Una vez firme esta sentencia se entregarán los tres certificados de inversión en el Elca International Bank and Trust y sus cupones de intereses respectivos (Nº 100-1008-02 y cupones 100-1008-02-1, 100-1008-02-2, 100-1008-02-3; Nº 100-1009-02 y cupones 100-1009-02-1, 100-1009-02-2, 100-1009-02-3 y 100-1009-02-4 y Nº 100-1010-02 y cupones 100-1010-02-1, 100-1010-02-2, 100-1010-02-3, 100-1010-02-4 y 100-1010-02-5) al representante legal de Night Glow S.A. haciendo la expresa advertencia en el dorso de cada uno de los citados documentos que la obligación allí representada ha sido declarada con cargo a los patrimonios solidarios de la Quiebra del Banco Elca S.A. y C. a través de esta sentencia.

(xiv) Una vez firme esta sentencia se emitirán las comunicaciones de rigor para ante el Registro Judicial, el Juzgado de Ejecución de la Pena y el Instituto Nacional de Criminología y se efectuará el auto de liquidación de pena. Mediante lectura NOTIFÍQUESE. Ileana Méndez Sandí, Edwin Salinas Durán, Rosaura Chinchilla Calderón. ” (sic).

2.- Contra el anterior pronunciamiento, el licenciado Gonzalo Elizondo Breddy, en su condición de codefensor del encartado C, interpuso recurso de casación. El licenciado Juan Carlos Sabravatti Montoya, en su condición de defensor del encartado C. interpuso recurso de casación . El imputado C, interpuso recurso de casación. Los licenciados Manuel Eduardo Campos García y Leonardo Antonio Madrigal Moraga, en su condición de apoderados especiales judiciales de la demandada Civil Quiebra del Banco Elca S.a, interpusieron recursos de casación.

3- Se celebró audiencia oral y pública a las ocho horas cuarenta minutos del veinte de enero de dos mil nueve.

3.- Verificada la deliberación respectiva, la Sala se planteó las cuestiones formuladas en el recurso.

4.- En los procedimientos se han observado las prescripciones legales pertinentes; y,

Considerando:

I.- El defensor de C. interpuso casación contra la sentencia # 165, dictada por el Tribunal Penal del Segundo Circuito Judicial de San José, a las 14 horas del 30 de abril del 2008, en la que ese encausado fue declarado autor responsable de un delito de estafa mayor agravada, uno de administración fraudulenta y uso de información privilegiada, en perjuicio del Banco Elca, sociedad anónima; y un suministro de información bancaria falsa, intermediación financiera ilegal y autorización de actos indebidos, en daño del sistema bancario nacional. En razón de ello, le fue impuesto un total de veintitrés años de prisión. En el primer motivo del recurso, el defensor alega la falta de autenticidad de una prueba esencial, que fue una carta dirigida al señor Arnoldo André Tinoco, suscrita por la Jefa del Departamento de Finazas del Sector de Supervisión del Banco de Belice, señora N. Dicho documento, dice el quejoso, no se presentó al Ministerio de Relaciones Exteriores de ese país, sino a su embajada en Guatemala. Allí, lo que se hizo fue certificar que era copia fiel de su original, pero no constatar qué cargo ostenta la suscriptora ni que la firma que aparece sea la de ella. El reclamo continúa exponiendo que debió haberse dado una “cadena de autenticaciones” y sobre comprobar el valor de esos documentos. En vista de que ese documento fue empleado para tener por demostrado que la licencia irrestricta clase A como offshore fue otorgada a Elca International Bank and Trust Limited, se violentó el artículo 182 del Código Procesal Penal y el 39 de la Constitución Política. En conclusión, señala, “la prueba idónea para demostrar que el dinero pueda haber sido desviado es la certificación de que esos fondos no se depositaron en el EITB-Belize, y esa prueba no fue recolectada en la investigación. Los bancos tienen muchos caminos, y muchas cuentas operativas para hacer circular transferencias monetarias de un lugar a otro”. No es atendible el reclamo. Debe establecerse desde el inicio que, no por el hecho de que un documento incumpla con todos los trámites consulares, pierde todo valor. Aun así, no deja de ser un documento que, sin ser una certificación, aporta un elemento de valoración. Sin embargo, ese es un tema que no tiene mayor relevancia en este caso. Desde ahora debe quedar claro que prescindir de una prueba implica que el hecho o los hechos que se tuvieron por demostrados tomándola en cuenta, deban tenerse por no acreditados, pues si suprimiéndola hipotéticamente, hay otros factores de convicción que sostengan tales conclusiones, el asunto carecerá de interés procesal. Esto debe advertirse porque será insistente, como se verá a lo largo de esta sentencia, el alegato de que, por no ser lícita o concluyente una probanza, o bien por no cumplir ciertas formalidades ajenas al derecho penal o a los sucesos aquí investigados, debe tenerse por no acreditados ciertos hechos. Volviendo al motivo en cuestión, debe decirse que, como lo reconoce el propio defensor, ese pretendido vicio no fue oportunamente reprochado por los interesados. No obstante, debe reiterarse, el tema no tiene mayor interés, dado que, con esa prueba o sin ella, lo cierto es que hay abundantes elementos para tener por cierto que la división offshore del Banco Elca no tenía permiso para operar en la República de Belice cuando A. empezó a ofrecerla como un destino de atractivas inversiones (pagaba mayor interés que en Costa Rica), motivo por el que el señor M. decidió invertir allí tres millones de dólares estadounidenses (en adelante simplemente “dólares”), los cuales le fueron entregados al acusado y nunca llegaron a su destino ni le fueron restituidos. Tanto es así, que, para elucidar de forma categórica las dudas que hace surgir el defensor acerca de la disponibilidad de prueba pertinente, conviene transcribir in extenso la exposición que al respecto hizo el a quo. “Asimismo, J. dijo contundentemente que el Banco Elca no tenía una offshore aunque desde que él ingresó al banco, en el 2000, escuchaba que se realizaban gestiones para crearlo en Belice, lo que le correspondía a J, agregando ‘...eso era un tema tabú en el banco, no era conveniente hablar de eso en el banco. J. le decía a los ejecutivos del banco que no mencionaran que tenían offshore, el medio financiero nacional tenía opciones de bancos que sí tenían y nosotros no, lo que nos quitaba competencia, no era permitido decir que la estábamos haciendo. Don J. a veces me solicita personal y a veces sin mi permiso se lo llevaba para ir a Belice. Elca International Bank era como se iba a llamar el offshore. De un momento a otro el gerente financiero del banco me dijo, no sé si cuatro o siete millones de dólares, que estaban en el banco, en certificados, los cancelaron, eso me dijo R. o W. y se llevaron la plata para Belice y eso ocasionaba problemas porque se bajaba la cartera de captación (...) Nunca vi certificado de inversión del Elca International Bank, físicamente (...) B. era el gerente a.i. de negocios, me llamó que había llegado J, que le dijo que firmara un certificado de inversión de Elca International Bank, me contó y le dije que cómo se le ocurría firmar eso si no trabajaba para ese banco, no vi físicamente el documento pero él me dijo y quedó muy preocupado. Nunca supe que el banco fuera autorizado para realizar operaciones, creo que nunca fue autorizado.’ versión que contó con el respaldo de M. quien agregó ‘Yo sé que en Belice se estaba haciendo una sucursal offshore, el Elca International Bank, pero entiendo que no funcionaba, de eso me enteré por un señor J. que tuvo problemas con un certificado de ese banco y que yo había firmado a pedido de don H, él fue hasta Belice y no lo pudo cambiar, me dijo que ese banco no existía (...) don J. llegó a buscarme al Banco Cuscatlán, cuando firmé el certificado don J. me dijo que el banco offshore era un clon de Elca Costa Rica, que los autorizados aquí íbamos a firmar igual allá, que él me buscaba a mi porque no estaba don H. ni don C. (...) yo era el asistente de don H. pero él no tenía relación con la offshore, era don J. el que maneja todo lo relativo a la offshore, no conocí personal de la offshore, no sé si firmé otro documento, ese sí lo tengo claro porque el señor llegó a buscarme y lo vi, no sé dónde estaba emitido el documento (...) cuando yo firmé los certificados del señor P. era normal firmar diversos documentos, uno era de confianza, no era tan común firmar certificados de inversión..’. Esta declaración es creíble aunque se niegue que H. tuviera relación con el banco offshore de Belice, aspecto que contrasta, en parte, con lo que el mismo G. indicara y con los documentos firmados, a nombre del Elca International Bank and Trust Limited, por F. y G, para pagarle a C. (folios 6884 del tomo XV principal y 7367 a 7371 del tomo XVI principal que son, a su vez, copias certificadas de los legajos de prueba 21 y 25, respectivamente, documentación secuestrada en la casa de J. ) más este extremo carece de relevancia para lo que aquí se conoce. Indicó al respecto don H, gerente general del Banco Elca S.A. ‘J, subgerente y yo, en privado, le dijimos a don C. nuestras preocupaciones (...) no nos gustaba prestar la plataforma del banco (...) le dijimos que en materia de la inversión de Belice ni don J. ni ninguno de los funcionarios de administración teníamos injerencia en el banco de Belice (...) se hizo un llamado de atención que el banco de Belice no era lo mismo de Elca a pesar de que J. le había repetido que no podía operar y que don C. lo ofrecía (...a) Don J. (...) se le encomendó la apertura de una licencia bancaria en Belice, era el único banco sin un banco offshore. Se tomó la decisión de constituirlo, pero no formaba parte de la Corporación a pesar de que los socios, personas físicas, eran bastante comunes (...) A la administración no nos gustaba que se manejaran temas del offshore en Elca si no tenían relación y por eso se pasó la oficina de F. y a una oficina en La Sabana. El banco offshore fue constituido y obtuvo su licencia de operación como en el 2002 pero para captar la obtuvo en fecha posterior a que se hicieron las captaciones (...) A pesar de que no podía captar dineros y de las advertencias mías y de J, se ofreció no sólo a G. sino a otras personas la posibilidad de llevar a cabo estas inversiones y eso lo hacía directamente don C. porque yo no permitía que se confundieran las cosas y J. se ponía enojado cuando en una reunión en el banco se le ofrecía a un cliente eso. J. era muy reservado en materia de Belice y que yo sepa no hizo ofertas ni las hice yo ni ningún funcionario del banco (...) Se hacían ofertas para inversiones en el banco de Belice en las instalaciones de Elca pero no eran ofrecidas por la corporación, la administración no estaba de acuerdo pero no podíamos cerrarle la boca a don C, la persona que ofrecía eso era don C, él atendía clientes muy importantes y se encargaba de atender clientes de cierta magnitud. (...) me consta que se utilizaron las instalaciones para ofrecer el banco internacional, oí a don C. hacer las ofertas y a don J. regañar a don C. porque se confundía al inversionista porque se le ofrecía como si formara parte de la corporación un banco que no lo era y eso no se le decía al inversionista. Nos preocupaba que don C. asignaba a una oficial del banco para darles información y ella (M. por ejemplo) no tenía ni idea de lo que le estaban hablando y por eso entró J. en escena. Encuentro dos o tres clientes más que invirtieron en el banco de Belice (...) La licencia como banco estaba pero no la licencia para captar y antes de eso sí se hicieron ofrecimientos, no porque los escuchara sino porque me enteré, uno de esos es el de C. (...) don C. ofrecía abiertamente el banco de belice (sic) y J. era como una tumba (...) la creación del Banco de belice (sic) no fue acuerdo de Junta Directiva de Elca, fue de don C. y sus socios (...) A don C. obviamente se le advirtió que el banco no estaba autorizado a operar (...) así como que no mezclara operaciones de Belice ni funcionarios de Elca en ese tipo de transacciones (...) En Elca International Bank and Trust Limited no recuerdo si por petición de J. firmé algo a KPMG (...) Nunca he estado en Belice’. Pero también el asunto llegó a conocimiento de la SUGEF pues doña C, Directora General de Bancos Privados de esa entidad, refirió: ‘En agosto de 2002 don B.A., anterior superintendente, recibió un correo anónimo que informaba que Elca tenía una entidad domiciliada en exterior. Indicaban que el Banco Central de Belice había autorizado licencia bancaria pero estaban formalizando, se le dio seguimiento y en setiembre de 2003 don C. informó que Junta Directiva había acordado que la empresa no iba a formar parte del grupo financiero. Fuimos muy claros que esa entidad tenía que formar parte del grupo y que tenían que solicitar se autorizara el offshore e incorporarla al grupo financiero por eso el informe. Dijo que iban a ser fuera de Corporación Elca y se me indicó que Elca Bank & Trust o algo así y se le dijo que debían proceder a eliminar el nombre de Elca para no crear confusión en el público. En octubre dimos respuesta a J. que indica que no van a realizar operaciones de intermediación en Costa Rica y que tenían reservado el nuevo nombre del banco que no incluía el nombre Elca. No sé si el banco entró a operar. Conozco a H(...) desconozco si tenía relación con el banco offshore. Una entidad offshore opera fuera del país, el banco local de un grupo offshore puede prestarle ciertos servicios a una entidad domiciliada en el exterior siempre que forme parte del grupo financiero y haya un contrato que regule esa situación. No hay posibilidad de captar inversiones si no forma parte de un grupo financiero costarricense, es sólo transferencia de fondos por cuenta y riesgo de quien lo hace (...) No sé si la Junta Directiva de Elca aprobó esa offshore ni ellos me informaron. El nombre definitivo del banco en Belice era Interbank and Trust, no sé si operó’ declaración que encuentra amparo en lo establecido por el oficio de folio 4413 (tomo X principal) firmado por S. y dirigido a C, como representante legal de la Corporación Elca Internacional, el 17 de febrero 2003 y recibido por la gerencia general en esa misma fecha. Allí se le recuerda a A. que desde el 18 de diciembre de 2002 ‘esta Superintendencia solicitó información acerca del estado actual en que se encuentran las gestiones que realiza ese Grupo Financiero para obtener una licencia para operar un banco offshore en Belice y la fecha en que esperan iniciar trámites ante la SUGEF para la aceptación de dicha plaza, previo a la solicitud de incorporación de dicha entidad al Grupo Financiero, sin que a la fecha fuera contestada’, lo que concuerda con la referencia que hiciera el interventor titular M. al decir: ‘No participé en el período previo a la intervención pero si se nos comentó que el grupo había pedido constituir una offshore en Belice y que había llegado a un acuerdo para no incluirlo en el grupo financiero y las gestiones las realizaba don J. Se apersonó gente diciendo que había intervenido en el banco o a través del banco, Carabetta con Inversiones Savinelli y Cori Consulting se presentaron diciendo eso, que habían hecho gestiones en el banco pero no necesariamente en el offshore.’ El que el ofrecimiento de los títulos del Elca International Bank and Trust Limited se hacía a diversas personas encuentra sustento probatorio en los documentos de folios 1064 a 1071 del tomo III. Allí se encuentra copia de una nota (con sello de recibido de Banco Elca, Gerencia General y dirigida al gerente general de Banco Elca) fechada el 01 de octubre de 2002 en la que el representante de Cori Consulting and Financial Services S.A. entrega al Banco Elca los originales de los cupones de intereses del Elca International Bank and Trust Limited para custodia y que a la fecha de vencimiento sean cambiados y depositados "libre de comisiones bancarias nacionales". No hay ningún documento que determine que formalmente H. formara parte de los representantes de Elca International Bank and Trust Limited por lo que, el que esa correspondencia se le remitiera y estuviera al tanto de esas operaciones, denota que las operaciones offshore en Belice se tenían como un servicio más del Banco Elca S.A. costarricense pues, de otro modo ¿cómo explicar que esa nota le sea remitida al gerente general de esta institución? ¿lo sería de igual forma a otra gerencia general de cualquier otro banco? Evidentemente que no sino sólo de instituciones relacionadas o que brindaron el servicio allí referido. Cabe indicar que según el documento de folio 42 del tomo I emitido por el Banco Central de Belice, es justamente ese 01 de octubre de 2002 en que el banco tiene permiso para operar como offshore (sin tener aún licencia para captar, lo que lograrían hasta inicios de 2004) y ya para entonces no sólo estaban emitidos otros certificados y sus cupones de intereses sino que estaban próximos a su vencimiento. De igual manera, en el tomo XV (documentación secuestrada en la casa de J. ) existe copia certificada del legajo de prueba Nº 19 en donde se consignan copias de certificados emitidos por el Elca International Bank and Trust Limited, con igual formato al presentado por los querellantes, suscritos ora por J. ora por él y C. y emitidos a partir de febrero de 2003 a nombre de entidades tales como F.y Rosados S.A. u Olga Rozados Pazos, Arjuna Limited, Veda Inc., Nirvana Inc., Jiva Inc., Rank Inc., Deva Inc., Sage Inc., Sahara Inc., Valley International Inc. y Top-co. Inc. (ver folios 6608 a 6612 a 6623) sin olvidar los documentos que, en el mismo sentido, se le pidió a Bolívar que firmara a favor del señor Penón según aquel testigo refiriera. Por supuesto que el tema era conocido por el encargado de crear esa sucursal, J, quien dijo que "él (C. ) lo ofrecía (refiriéndose al Elca International Bank and Trust Limited) como ofrecer confetti en la avenida central, yo le dije claramente que no se podía, pero él ponía al servicio toda la corporación, como un paquete." más en alguna correspondencia emitida por F. se desprende que existió un interés inicial en que el Banco fuera parte del Grupo Financiero Elca de Costa Rica y que si ello no se pudo realizar fue por las intervenciones de las autoridades de los respectivos países, como la SUGEF en Costa Rica (a través del mecanismo mencionado arriba y descrito por doña C. ) o por oposición del Banco Central de Belice ante requerimientos de autoridades norteamericanas. Así, en el tomo principal XV está copia certificada del legajo de prueba Nº 21 (documentación secuestrada en la casa de J. según acta de secuestro 362112 del 22 de julio de 2004 visible a folio 573 del tomo II principal) y en los folios 7290 a 7292 hay una copia de un memorandum dirigido por J. (representante de Cori Consulting and Financial S.A.) en donde F. le indica a Tinoco que el Banco en Belice inicia operaciones el 16 de enero de 2004 y que no se pudo poner en operaciones antes pues Estados Unidos empezó a ‘...requerir de los centros offshore su colaboración para que en los casos de existir operaciones (parallel banking structures) bancarias relacionadas (por gestión o afinidad de sus accionistas) con otros distritos financieros (Caso del Grupo Financiero Elca-SUGEF) debería propiciarse criterios de uniformidad para que un solo regulador controle a dos o mas grupos/bancos...’ y agrega que la nueva licencia está a nombre de Interbank and Trust Limited y no fue objetada por la SUGEF siempre que fuera banco internacional y que no se incluyera en el Grupo Financiero Elca. Es decir, el cambio de nombre no sólo se debió a la recomendación de la SUGEF ante la confusión que se producía en los inversionistas (y agrega este Tribunal ya no sólo por el nombre similar "Corporación Elca Internacional"/"Elca International Bank..." y los logotipos casi idénticos sino por el uso común de instalaciones, personal y hasta la tentativa -frenada por la SUGEF- de incluir los gastos de una en los estados financieros de la otra entidad) sino a la variación de tenerlo ya no como un offshore del banco nacional sino como un banco internacional. Inclusive este último aspecto fue referido de forma distinta por C. en su indagatoria. Mientras en debate indicó que ‘El banco offshore se desarrolla como alternativa para la competitividad, era manejarlo como banco extranjero, no es realmente un offshore sino un banco internacional manejado en el extranjero’ con lo que incurrió en un verdadero lapsus al reconocer, inicialmente, que era una sucursal offshore (es decir, parte del Banco Elca S.A.) para luego, apercibido de lo que acababa de decir, aclarar que no era tal sino un banco internacional, en su indagatoria anterior (folios 4043 a 4089, especialmente folios 4088 ss. del tomo X, posible de valorar al tenor de lo establecido en el numeral 343 párrafo tercero del Código Procesal Penal) alude al banco de Belice como el "banco offshore" y a que las inversiones de G. en Banco Elca eran de sumas muy grandes, lo que implica su aceptación de que ese negoció se planteó como si fuera una inversión en el grupo nacional y un servicio más del Banco Elca S.A.. Aquí el imputado menciona una posible inversión en la reunión de Guatemala pero oculta que, para entonces, la misma ya se había dado. De este grupo de elementos probatorios -cuyas declaraciones fueron claras, precisas, soportaron correctamente el interrogatorio, sin que el tribunal tenga ningún elemento para dudar de su credibilidad pues sus dichos tienen correlato entre sí y con otros elementos probatorios, razones todas por las que merecen, en general, absoluta credibilidad salvo cuando expresamente se indique lo contrario en cuyo caso se el encartado C. pretendía crear una banca offshore en Belice y la ofrecía -aún sin tener la licencia de captación allí ni estar integrado en Costa Rica al grupo económico- como parte de los servicios que proporcionaría Banco Elca pues su banco era uno de los pocos, en el mercado nacional, que carecía de ese servicio, lo que le restaba competitividad. Aunque posteriormente, ante requerimientos de la SUGEF y complicaciones en el trámite en Belice, el Elca International Bank and Trust of Belice cambia su nombre a Interbank and Trust Limited y se establece que se tratará de un banco internacional desligado del Grupo Económico Elca, tanto por la concepción inicial como por la forma práctica en que A. manejó el tema (gastos de ese banco pretendieron introducirse en estados financieros del Banco Elca S.A., A. lo ofrecía como un servicio de dicho banco, se usaba el mismo nombre y logotipo, había confusión de personal y tareas pues a los personeros de Costa Rica se les podía como si fueran los de Belice, se usaban las instalaciones costarricenses para funciones del supuesto Banco de Belice al punto que G. refiere no haber viajado a Belice para esas fechas a pesar de lo cual él suscribe documentos a nombre del Elca International Bank and Trust of Belice cambia su nombre a Interbank and Trust Limited,etc.), dicho banco siempre se ofreció como un servicio más del grupo financiero Elca y, específicamente, del Banco Elca S.A. y tan era así que se autorizaba o sacaba a que sus funcionarios para que fueran a Belice a brindar servicios de cómputo o de oficialía de cumplimiento, se usaban las instalaciones nacionales, se ofrecía públicamente a clientes y a otros integrantes del Grupo Financiero y hasta se les decía a los empleados del Banco Elca S.A. que iba a ser un clon del nacional y que quienes estaban autorizados a firmar aquí podían hacerlo allá” (folios 17228-17235). En conclusión, como se dijo, hay abundante prueba de que el servicio offshore de banco ofrecido por A. al señor G. (entre otras personas) no operaba para entonces, sino que era parte de un engaño utilizado para hacerlos girar dinero para presuntas inversiones que no llegaron a ser tales, sino que fueron fondos desviados, como se explicará adelante.

II.- En el segundo reclamo, se dice que los hechos probados XV y XVI, los cuales se refieren a la recepción del dinero del señor G. (para ser invertida a nombre de la sociedad anónima Night Glow) por parte del endilgado y de su depósito en la cuenta N° 6096-1 del Transamerica Bank Trust Co., perteneciente a una sociedad controlada por A., la sociedad anónima Bosques de Ayarco BA, se sustenta únicamente en el testimonio de H. Este testigo, dice el impugnante, fue objeto de una querella por parte de la sociedad ofendida, pero conciliaron por la suma de cien mil dólares y su palabra de atestiguar en esta causa. Esto debió haber sido considerado, así como que el cheque tiene fecha del 31 de mayo del 2002 y el memorándum para disponer de los fondos, del 6 de junio siguiente, lo que hubiera llevado a desechar su versión de que había tenido que llamar a A. para pedir instrucciones. Quedó nítido, dice el defensor, que G. podía desobedecer a A.. Posteriormente, se discurre sobre los intereses que pudieron haber tenido los ofendidos en una condena del justiciable y el papel que ese testigo y J. pudieron tener en ese plan. Agrega que el banco no era un “jardín de infantes”, en el que A. daba órdenes y los demás obedecían ciegamente. No es de recibo el reproche. El hecho de que G. hubiera conciliado por una suma mucho menor a la demandada por la sociedad ofendida, o bien que mostrara algún nivel de indisposición al haberse visto involucrado en estos hechos, no es razón suficiente para negar credibilidad a su dicho. Reiteradamente ha dicho la jurisprudencia nacional que, la credibilidad de una probanza radica en su coherencia y verosimilitud propia, al igual como de su contraposición con las demás. No de una especulación sobre los motivos que tiene alguien para decir una cosa u otra. En este caso, no hay indicio alguno de que G. no dijera la verdad, por lo que a falta de argumentos válidos el defensor especula sobre su disposición hacia A. y el provecho que los demás pudieron haber obtenido de ello. De forma que, con esas sospechas, no hay por qué poner en tela de discusión el dicho de ese declarante. Esta prueba, por lo demás, se muestra consistente con el resto de lo expuesto por el personal del banco que compareció en el debate, quienes unánimemente dijeron que quien mandaba en el mismo, era su dueño y presidente, A.. Era él quien mandaba y así se testimonia a lo largo de la sinopsis probatoria, resultando ociosa una referencia específica a ella, pues es un dato que está en todos los testimonios aducidos. De tal forma que, entonces, sí es razonable que aunque G. en ocasiones tuviera criterios diferentes a los de A., fuera este quien tomara las disposiciones y decisiones tratándose de aspectos relevantes, como era justamente el ingreso de tres millones de dólares, recibidos para invertir en un servicio offshore que él había ofrecido pero que no operaba. Amén de que, como dijo el testigo J: “Yo creo que podía oponerme a las órdenes de C. pero si lo hacía, siendo asalariado, me echaba." Para terminar, no se ve cuál es la relevancia de que el cheque recibido tuviera consignada una fecha y el memorándum sobre el destino de los fondos fuera otra, porque por la razón que fuera A. no estaba en el lugar, y debió ser localizado telefónicamente, recibiendo las instrucciones del caso de parte de aquel (folio 17089). En resumen, no se demuestra que G. haya faltado a la verdad y, por esa vía, que los hechos demostrados XV y XVI sean insostenibles. Sin lugar el motivo.

III.- En el tercer motivo, se dice que la situación de J. es similar a la de H. y que, sorpresivamente, el Tribunal aceptó como prueba unos certificados que durante su declaración sacó de las bolsas de su pantalón. Dice el defensor que dicha prueba es ilegal, por no haber mediado prueba grafoscópica para establecer la autenticidad de la firma en esos títulos, que F. tiene interés particular en la resolución de la causa, que se refieren a un hecho no juzgado “y que guarda relación con el caso de Cori Consulting”, que se malentendió el artículo 29 de la Ley de Registro, Secuestro y Examen de Documentos Privados, al hacer uso de correos electrónicos enviados por el acusado a F. sin el consentimiento de su autor. Finalmente, vuelve sobre el punto del papel que como testigos interesados en el asunto y útiles para el actor civil jugaron tanto F. como G. No es atendible el motivo. Como se dijo arriba, las razones personales que tenga cada uno de los testigos son intrascendentes, a menos que afecten la credibilidad de la prueba. Esta no se ha visto comprometida ni mucho menos, por el contenido de sus deposiciones, ni la forma de declarar los mencionados F y H. Es comprensible que la defensa resienta que, para su sorpresa, en el debate aparecieran los certificados del dinero que A. había recibido de Night Glow sociedad anónima, pues ello demostraba documentalmente que el endilgado sí había recibido tales sumas con la treta de que eran para invertir en un banco offshore en Belice. Definitivamente eso constituyó un factor que afectó la estrategia de la defensa, que consistía, entre otras cosas, en negar que las cosas hubieran sucedido así. Pero de allí a que sea una prueba ilegal, no hay identidad. Como correctamente lo expuso el a quo, el principio de libertad probatoria permite demostrar las circunstancias relevantes por cualquier medio lícitamente obtenido. De modo que, no habiendo ninguna ilicitud en que fuera durante el juicio que (como circunstancia verdaderamente novedosa que es) el declarante F. sacara dichos documentos y los pusiera a disposición del a quo y las partes (las cuales pudieron conocerlos y, si era el caso, contradecirlos), estos podían ser tomados en cuenta plenamente como prueba en la sentencia. Que esos documentos o una acción de F. esté siendo conocida en otra causa, no impide que, para efectos de resolver la presente, sean ponderados por los jueces. Tampoco lo impedía la falta de prueba grafoscópica para comprobar que la firma que aparecía en los títulos era la de A., pues no hay indicio alguno para suponer que la firma que allí obra no es la del procesado. Por el contrario, la declaración de F. es enfática en que las firmas son la de él y de A. (folio 17050), lo cual es consistente con el involucramiento pertinaz e irresponsable que tenía A. con el pretendido proyecto del banco offshore en Belice del que ya largamente se hizo cita. Aun más, en el correo electrónico cuya incorporación el defensor recrimina, el propio A. reconoce que esa es su firma. Para terminar, debe hacerse referencia al alegato del litigante sobre la violación a la privacidad del endilgado y a la Ley de Registro, Secuestro y Examen de Documentos Privados, el cual tampoco es atendible, porque siendo F. el destinatario de la comunicación electrónica que le dirigió A., él era titular de su propia privacidad, pudiendo ponerla a disposición del a quo en ese sentido. O sea, contrario a la lectura que hace el recurrente, se entiende que cuando se alude a si son varios los titulares, la norma del artículo 29 de esa ley se refiere a que sea varios los sujetos ubicados al mismo extremo de la comunicación; más no cuando es un sujeto a cada lado, pues en este caso cualquiera de ellos puede consentir en que sea usada. Tanto es así, que si la norma se refiriera a las hipótesis, como la presente, en que es un emisor y un receptor, sería innecesario que contemplara la situación especial de que sean “varios los titulares”, pues toda comunicación, para que sea tal, requiere de al menos dos sujetos. Es decir, siempre serían “varios”, lo que haría estéril la distinción. Esto demuestra que, tratándose de un receptor (como lo era F), bastaba con su autorización para el empleo de tal correo electrónico que le envío A..

IV.- En el cuarto motivo, dice el impugnante que varios tractos de la sentencia hacen patente “una especie de prejuicio” o “conclusión adelantada”. Así, dice que el a quo no justifica la calificación que hace de “actuaciones defraudatorias”, las cuales deben deducirse de los hechos y no inferirse a priori. Al mismo tiempo, colocar ciertas expresiones entre comillas “refleja un pre-juicio (sic) del Tribunal”. Decir que las acciones de A. eran falaces, significa que es un embustero, lo cual atenta contra la dignidad del endilgado. Agrega que sin narrar los hechos, en la sentencia ya se califican los mismos, amén de que no se dice de dónde surge que el justiciable dijera al señor G. y su asesor que ya había concluido los trámites de autorización para que operara la banca offshore. A continuación, alega que los Jueces no dijeron dónde se apoyaban para decir que F. enviaba todos los meses informes contables a M. sobre los supuestos rendimientos de su inversión en Belice; que no se reflejó en el fallo que durante el 2002 la relación de las empresas de ese señor y el Banco Elca fue normal; que los certificados que le fueron entregados no fueron ficticios, pues recibió el pago de intereses; y, que el fallo no describe cómo obtuvo el Tribunal la certeza de que esa suma fue empleada para satisfacer obligaciones personales de A.. No es atendible el motivo. El hecho de que el Tribunal aluda a una serie de actuaciones o incluso a la forma de proceder del endilgado de forma que le resulta comprometedora o lo expone como un sujeto de cuidado, no implica que este tuviera una actitud prejuiciada contra aquel. Prejuicio es cuando se tiene una posición previa al juicio, es decir con antelación a la evacuación de la prueba. No cuando esta ya ha sido vertida y los jueces han formado su criterio. En tales circunstancias, no existe ningún obstáculo, sino que es la consecuencia necesaria (salvo duda en contrario) que los juzgadores tengan un criterio acerca del sujeto, su forma de actuar y sus acciones en discusión. En algunas de las situaciones, ese criterio puede ser negativo para él, como en este asunto. Mas no porque ello proviniera de un prejuicio, sino de un juicio fundado en las probanzas evacuadas. Luego, si el Tribunal entrecomilla algunos términos o que el significado de las mismas no es el usual, sino que hay uno oculto, que en este caso se inscribía en la trama y actuaciones defraudatorias de A., lo cual (en vez de ser una posición previa al debate, como dice el defensor), surge claramente de las probanzas evacuadas. Estas, como es sabido, son aquilatadas en la deliberación de los jueces, los cuales una vez concluida la misma, proceden a redactar el fallo, vertiendo su decisión en el documento (o bien a exponerlo oralmente en las ocasiones en que procede). Pero de ninguna manera representa que los jueces vayan desarrollando su razonamiento al tiempo que lo redactan o lo exponen en el documento. Por eso es que no hay ninguna irregularidad en que, antes de abordar las diversas pruebas en las páginas sucesivas, en el documento escrito (o la exposición oral) aparezcan conclusiones del Tribunal, sin que sea que estaban prejuiciados o habían tomado una posición previa, sino que es el producto de su deliberación, la que ya tuvo lugar y no se desarrolla simultáneamente a la redacción de la sentencia. Por otra parte, no era necesario que el Tribunal indicara explícitamente de dónde se obtenía que el acriminado había ofrecido los servicios de la banca offshore como si los trámites de autorización estuvieran cumplidos, pues desde que los ofrecía como viables (y el propio defensor transcribe parcialmente un testimonio al respecto) sin mencionar que estaban en proceso, era porque desde luego ya estaba autorizada su operación, o más bien así lo hacía parecer el encartado. Por otro lado, sí hay prueba de que F. proveía a ese inversionista de los mencionados estados de cuenta (ver declaración de R, a folios 17058 y 17061), los cuales pretendían aparentar que las cosas caminaban normalmente, cuando lo cierto es que el banco offshore no operaba ni los dineros habían sido invertidos. De igual manera, el protagonismo e insistencia de A. en esta estratagema defraudatoria, la lógica lleva a pensar que él al menos consentía el envío de esos estados de cuenta, si no es que ellos formaban parte del plan inicial para mantener en el error a los afectados. Asimismo, el que fueran algunos de los intereses devengados por el dinero entregado a A. por parte de Night Glow sociedad anónima, no desconfiguraba retroactivamente el ilícito de estafa ya configurado, en el que (como tantas veces se ha expuesto) a G. le fueron ofrecidos los servicios de una institución inexistente, para que invirtiera fondos que nunca llegaron a destino. Al contrario, como lo explica el a quo de folio 17255 en adelante, esas maniobras pretendían encubrir lo que sucedía y mantener a los ofendidos en el engaño. De ahí que, aunque se pagaran algunos intereses, no por ello los certificados dejaban de ser ficticios y pasaban a ser verdaderos, porque ni la banca offshore operaba ni los fondos habían sido destinados a ninguna inversión. Esto, además, hace irrelevante que durante el año 2002 las relaciones comerciales entre G. y el Banco Elca fueran normales, pues lo que importa en esta causa no son esos hechos, sino los ilícitos que a la postre fueron perpetrados, los cuales no se ven imposibilitados ni se ven afectados por las buenas relaciones previas. Para terminar, en cuanto al destino que en el capítulo de razonamiento probatorio el Tribunal dijo que A. le dio a los susodichos fondos recibidos (para pagar obligaciones personales), no era preciso que el a quo entrara a detallar cada uno de los pagos o gastos hechos con esos fondos, lo que de por sí ya formaba parte de la fase de agotamiento del delito y no de su consumación, lo cual es innecesario. Bastaba, como dijo el a quo y el mismo defensor transcribe, con que uno de los funcionarios del banco más próximos jerárquicamente a A. (G), así lo constatara, diciendo que la cuenta a la que se habían desviado los tres millones de dólares de Night Glow sociedad anónima, era una particular de otra sociedad controlada por el justiciable. Lo cierto, es que con un destino u otro, el dinero no se envió a la finalidad que estaba destinado, sino que fue desviado por el acusado a una cuenta que controlaba, lo cual configura el daño patrimonial acusado y apuntaba a un beneficio patrimonial ilícito, fuera para A. (como se acreditó) o para un tercero.

V.- En el quinto motivo, arguye el quejoso que su defendido fue una persona distinguida y de vida intachable, hasta estos hechos, por lo que no requería incurrir en este tipo de acciones para hacerse de capital. “Cuando se hizo el desembolso por los tres millones de dólares la trasferencia fue solicitada por el señor R. como dirigida a Transamerica Bank and Trust de Bahamas. Desde el principio la parte querellante conoció perfectamente que el dinero no se estaba transfiriendo directamente a Belize (sic)”. Indica que el que el dinero no se enviara a Belice, no constituía una apropiación del mismo, sino un depósito irregular, pudiendo el banco emplearlos a su discreción. Dice que el cheque por los tres millones de dólares se hizo a favor de Transamerica Bank and Trust, y que ni el Banco Elca ni EIBT-Belize participaron de ese envío. Luego, vuelve sobre que no se probó la inexistencia para entonces de esa agencia offshore en Belice; que el dinero recibido fue en calidad de “depósito irregular”; que el acuerdo alcanzado en la ciudad de Guatemala y la falta de solicitud de los certificados originales muestran la confianza que todavía G. le tenía al imputado; que a lo sumo, todo se trató de una infracción a la legislación bancaria; y, que la disposición de A. de poner a responder sus bienes, probó que no había actuado con intención defraudatoria. Se declara sin lugar el reclamo. No vale la pena volver sobre el tópico de la inexistencia de la banca offshore en Belice como servicio del Banco Elca, lo cual ya está establecido desde el primer considerando de esta resolución, por lo que se remite a las partes a lo allí dispuesto. Ahora bien, en lo tocante a si la sociedad perjudicada y que sus personeros sabían que el dinero no se estaba destinando a esa agencia, sino a Transamerica Bank and Trust, donde el acusado tenía una cuenta, es un asunto irrelevante, porque bien puede hacerse el depósito a favor de una entidad bancaria diferente a la destinataria de los fondos, para que aquella los canalice. “…práctica común en esa época”, dijo R. (folio 17057). Pero ello de ninguna manera implica que se autorizara a A. a darles un destino diferente al acordado por las partes; a saber, invertirlos y no usarlos para otros fines, como eran las obligaciones personales del acusado, según comprobó el testigo G. Entonces, que ese dinero se canalizara por esa cuenta y no directamente a Belice, lo cual era imposible en vista de que dicha agencia offshore no operaba para entonces, sino que había unas instalaciones que simulaban una operación en regla (cosa ya aquí descartada), no significa que el ofendido autorizara un destino diverso para su dinero. Este, contrario a lo que sostiene el defensor sin sustento alguno, no era un “depósito irregular”, o un acto en el que alguien pone al cuido de otro un bien o valor con más o menos facultades, para lo cual se requiere una puesta lícita en posesión. En el presente asunto, la puesta en posesión no fue lícita, pues estaba precedida de un engaño, en el que se había hecho incurrir al señor G. y el que ya se ha descrito reiteradamente y es ocioso volver a explicar. Lo cierto es que, aunque esos dineros no pasaran por EIBT-Belize, lo cual era inviable al no existir entonces, ni por el Banco Elca, lo que está fuera de discusión es que sí pasaron por las manos de A., quien dispuso de ellos distanciándose de su compromiso con la sociedad inversora y cuyo propietario había sido engañado, para lo cual se valió de la apariencia de solidez y respetabilidad que le otorgaba el banco y sus antecedentes personales. De modo que sostener acá, lo mismo que intentó hacer el acusado frente a los acreedores, que este no es un asunto del Banco Elca, es desconocer las circunstancias en que el engaño operó. En otro sentido, el que durante el 2002 los negocios de ese perjudicado y el Banco Elca fueran positivos, no conlleva que siguieran confiando en este cuando llegaron a un acuerdo en Guatemala, en el que se programó un nuevo cronograma de pagos, sino que, como lo dijo el apoderado del señor G, lo hicieron para rescatar “del ahogado el sombrero”, pero que para entonces tenían la certeza de haber sido engañados, cosa que ratificaron cuando expresamente A. le dijo que no iba a pagarles el dinero adeudado (folios 17058, 17059 y 17061). En esa misma reunión, dijo el señor G, “quedé más convencido de que A. y F. eran ladrones” (folio 17161). De tal forma que no es cierto que por aceptar ese arreglo propuesto en la ciudad de Guatemala, el ofendido cohonestara ni ratificara las actuaciones del endilgado, sino que trataba de recuperar su dinero, lo cual no fue posible, porque el aducido acuerdo no fue honrado por A.. Incluso después de eso, según dijo la testigo N, “…nosotros salimos convencidos de que había que plantear la acción penal, pero G. quería un arreglo económico” (folio 17141), lo cual desacredita la tesis del defensor de que este se valió del proceso penal para salvaguardar sus fondos ante la quiebra del Banco Elca. En síntesis, el problema no era de irrespeto a la legislación bancaria costarricense o beliceña o no, sino de que el daño patrimonial se le había causado a la empresa de G. empleando un engaño o artificio por parte de A., constituyendo así un delito de estafa. Ante una situación como esa, definitivamente haber dejado los pretendidos certificados originales en custodia de F. era un error, como se reveló después, pero para entonces no se avizoraba el fraude, sino hasta el incumplimiento de las obligaciones. Una vez descubierto el engaño y siendo infructuosos los esfuerzos por recuperar el dinero, lo procedente no era pedir los títulos, sino denunciar los hechos, como en efecto se hizo. Para terminar, no es cierto que la disposición de A. de entregar algunos de sus bienes para responder por sus deudas muestre que no tuvo dolo defraudatorio. En primer lugar, porque ello tendría meramente un valor indemnizatorio respecto al delito que ya se había consumado tiempo atrás. Y, lo más importante, porque esos bienes no cubrían el monto estafado y no eran fiables. Al decir de la testigo N, “…incluso a través de don A. se nos ofreció unas propiedades, se fueron a ver pero no daban el valor o estaban enredadas” (folio 17141).

VI.- En el sexto motivo, esgrime el recurso que “Con pérdida total del principio de objetividad, el Tribunal basa su razonamiento para imponer la sanción a C, en los testimonios de H, R. y G, y toma de estas personas afirmaciones muy subjetivas y sin respaldo probatorio en el resto de la prueba”. Agrega que A. quiso buscar un arreglo poniendo a disposición de los interesados algunas propiedades suyas, lo que fue descalificado empleando el criterio de la testigo N. que no se tomó en cuenta que con los otros involucrados (G y F. ) se concilió por el 2 y 2.5% de lo que se les pedía; que el señor G. vio pagos sus intereses y pudo recuperar “muchos millones de dólares”. A continuación, cuestiona el empleo que se le daba a la cuenta de la sociedad anónima Bosques de Ayarco y que EIBT-Belize tenía presencia física en ese país, acerca de lo cual ya se expuso en este fallo, por lo que debe estarse a lo allí dispuesto. Para terminar, dice que no se tomó en cuenta la salud física de su cliente para fijar la pena, ni sus obligaciones familiares con hijos jóvenes; que R. dijo que “a la pregunta si les iba a pagar se limitó a decir, viendo a los ojos a su interlocutor, que no…”, cosa que es un recurso retórico, mas no jurídico; y, que la pena media a la que alude el Tribunal, no son ocho años, compuestos por noventa y seis meses, como se le impuso al encartado, sino setenta y seis meses. No lleva razón el defensor. En primer término, la pena que se le impuso a A. no se basa únicamente en el dicho de esos testigos que él crítica. Es más, aunque así hubiera sido, no habría constituido una irregularidad, a condición de que fueran testimonios creíbles y consistentes, como en verdad lo fueron. En todo caso, conviene tener presente que, como se dijo, no fueron las únicas probanzas sopesadas al efecto, sino que, basta leer de folio 17279 en adelante, aunque sólo se haga mención expresa de ellos, el juicio de reprochabilidad se basa en la totalidad de la prueba recabada al respecto y de las conclusiones sobre la culpabilidad que ello muestra en las acciones del endilgado. Sobre ese tema, dijo el Tribunal: “El párrafo final del artículo 216 del Código Penal, al señalar que "Las penas precedentes se elevarán en un tercio" obliga a que se aumente en un tercio los extremos mínimo y máximo de la pena abstracta prevista para el delito. Como en este caso estamos frente a una estafa de mayor cuantía cuya pena es de seis meses a diez años, la pena abstracta imponible con la agravante acreditada es de ocho meses a trece años y cuatro meses. Tanto el Ministerio Público como el querellante solicitaron una pena de ocho años de prisión que, como se observa, no es ni la pena mínima ni la máxima. Estima este Tribunal, por unanimidad, que la citada sanción debe mantenerse por ser la adecuada a la culpabilidad, es decir, al nivel de reproche que debe hacérsele al encartado A. estimando los elementos indicados en el artículo 71 del Código Penal. En cuanto a los aspectos subjetivos del hecho punible hay que tomar en cuenta que el encartado actuó con dolo directo y no sólo logró que se consumara el delito al obtener la entrega de los tres millones de dólares el 31 de mayo de 2002, sino que mantuvo en error a la entidad ofendida por mucho tiempo más pues le entregaba supuestos estados de cuenta de inversiones que nunca existieron como tales. Cuando se le requirió la entrega de dineros aducía problemas con otros bancos internacionales para las transferencias, controles sobre clientes por el monto, invitaciones a invertir, y ello generó que, al menos hasta enero de 2004, el ofendido no conociera en toda su magnitud lo acaecido. En lo referente a los aspectos objetivos y las circunstancias de modo, tiempo y lugar hay que tener en cuenta que R, representante de m. y de Night Glow S.A., conoció de C. pues se le habían dado referencias suyas en Finadesa en donde R. era directivo (institución que fue accionista de Financorp Puesto de Bolsa, a su vez parte de la Corporación Elca Internacional S.A. presidida por A. conocía el amplio prestigio que poseía don C. en el medio bancario y financiero costarricense, el curriculum solvente que poseía como Presidente de la Cámara de Comercio, director de la Asociación Bancaria, Presidente de la Cámara de Bancos Privados y entidades financieras, fundador de la Corporación Elca, etc., de modo que se acerca a él en las instalaciones físicas del Banco Elca a fin de contactar inversiones para su representado, se efectúan reuniones con el mismo Presidente de la Corporación y del Banco Elca, éste llama a altos ejecutivos (gerentes) a participar en ella y producto de esa situación, se induce a invertir en la banca offshore de Belice, inexistente a la fecha. De modo que la inducción en error se realiza en condiciones que para cualquier víctima resultaban altamente creíbles, sin que se desprendiera ningún elemento para desconfiar de la licitud del negocio planteado por A. Esa inducción en error y esa inyección de liquidez se produce en un momento en que el encartado A. realizaba una pluralidad de actividades empresariales (fundador y Presidente del Hospital Cima San José, de Cormar, negativos o con sobregiros por lo que debía recurrir a que terceros le prestaran sus cuentas y nombres para hacer pagos (así lo refirió H. ) y que el Banco Elca S.A. ya había presentado niveles de irregularidad decretados por la SUGEF (en tal sentido C y O , entre otros), todo lo cual permite entrever cuáles eran los motivos determinantes para la comisión del hecho, es decir, el ánimo del encartado no sólo de obtener recursos a como diera lugar y así ocultar otras irregularidades que ya presentaban sus finanzas personales y las del banco que él dirigía, con lo que lograría mantener, artificialmente, el prestigio que poseía en el medio nacional. También hay que considerar la importancia de la lesión al bien jurídico tutelado es decir, el patrimonio de la entidad ofendida que se vio menoscabado en, al menos, tres millones de dólares norteamericanos, es decir, aproximadamente unos mil cuatrocientos setenta y seis millones de colones al tipo de cambio actual (cuatrocientos noventa y dos colones por dólar), sin considerar los intereses que la suma pudo generar según lo pactado. Sin duda alguna para la consumación del delito reviste particular importancia, en este caso, considerar las condiciones del sujeto activo y de la víctima pues si don C. no hubiera tenido el curriculum, el prestigio y la posición de Presidente del Banco Elca ejercida de la forma en que lo hacía y si la víctima no hubiera conocido de ellas de previo, evidentemente el delito no se habría consumado. Esa relación originó la confianza necesaria para que el sujeto pasivo no extremara controles que si habría usado en otras circunstancias. Por otra parte, A. se aprovecha de la circunstancia que él conoce que el dinero invertido provenía de la actividad del sport book para sustraerlo bajo la falsa creencia que el origen de los fondos o la eventual falta de declaración tributaria de ellos, los hacía ilícitos y que ello impediría que el sujeto activo los reclamara por las vías legales e inclusive llega a decirlo así a la víctima al decir que desvinculó los fondos del Banco Elca "para protegerlo", ante lo que G. indica que su situación legal está en orden en Estados Unidos, que nadie le dio instrucciones para proceder de esa forma y que puede informar libremente quién es el destinatario final de esa suma sin ningún problema legal, cosa con la que -probablemente- no contaba A. Finalmente no menos importante es la conducta del agente posterior al delito pues A., en una de las últimas reuniones con los representantes del ofendido directo, a la pregunta de si les iba a pagar se limitó a decir, viendo a los ojos a su interlocutor, que no (tal y como lo dijera R. ) y si bien en algún momento hubo propuestas de entrega de bienes, las mismas eran -al decir de los representantes de la víctima: G y R- irrisorias ya que se trataba de inmuebles gravados, de un valor mucho muy inferior a la perdido, etc. Todas estas razones conducen al Tribunal a sostener que la pena merecida por el encartado en este caso no puede ser nunca una pena mínima o baja, sino que ha de ser sancionado con una pena suficientemente alta para que sea proporcional al daño sufrido y a su alto nivel de reproche atendidas las circunstancias narradas sin que quepa, tampoco, imponerle el extremo mayor de la pena (de trece años y unos meses) habida cuenta que es primario tal y como consta en la certificación de juzgamientos de folio 16635 del tomo XXVII principal, a más de que -como suele suceder en los delitos de cuello blanco- se trata de una persona adaptada a las pautas sociales básicas (ha tenido estudios universitarios, se ha desempeñado laboralmente con éxito, ayuda a la comunidad, no tiene problemas de adicciones, tienen arraigo familiar, etc.) en donde el principio resocializador (fundamento de la pena de prisión en nuestro medio conforme lo disponen los artículos 51 del Código Penal y 5.6 de la Convención Americana sobre Derechos Humanos) y entendido, para este caso, como el proceso de concientización sobre las secuelas de sus actos y la necesidad de adaptarse a todas las normas de convivencia humana, incluidas las pautas mercantiles, se lograría con montos inferiores a los extremos superiores. Por ello, imponer ocho años de prisión tal y como lo solicitaran los acusadores, es decir, una pena media (cinco años y unos meses menos de la pena máxima y siete años y unos meses superior a la mínima) se considera adecuado a lo ya narrado y procede decretarse así.” (folios 17279-17282). Esto comprueba que no lleva razón la queja del petente. Luego, tampoco nada impedía descartar, con base en el testimonio de la señora N, que las propiedades ofrecidas por A. no reunían el valor del daño ni eran confiables, pues no hay elemento alguno (ni el impugnante lo expone) para no dar crédito a ese dicho, que se mostró sólido e informado. En lo tocante a que con los otros dos involucrados se llegó a conciliaciones por el 2 y 2.5% de la suma que se les exigía, no queda claro si es que, nuevamente, el defensor intenta sembrar dudas sobre la confiabilidad de sus testimonios, cosa que ya fue dilucidada en estas páginas, o que echa de menos que a su cliente no se le confiriera el mismo trato, lo cual es netamente comprensible, en virtud de que fue el autor del engaño, quien decidió el destino de los fondos, quien fungía como presidente del Banco Elca y, además, era el dueño mayoritario del mismo. Entonces, el nivel de intervención y culpabilidad en los hechos era mucho mayor y, como producto de la conciliación, los perjudicados se proveyeron de prueba adicional para establecer la responsabilidad de aquel, lo cual es perfectamente acorde a la ley. No es cierto, por lo demás, que el señor G. recibiera el pago de los intereses de la suma desviada por A.. Se le pagaron algunos, en el intento de mantener el engaño a flote, mas no todos. Es más, desde que se empezaron a incumplir los contratos, ese señor no recibió más dinero por ese concepto y continúa sin hacerlo. El que pudiera recuperar “muchos millones de dólares” (en realidad dos) de las otras operaciones, no significa que no perdiera los tres que fueron objeto de la estafa que nos ocupa. El asunto de cómo narró R. la respuesta que le dio A., es algo procesalmente intrascendente, pues aunque tuviera un efecto retórico (lo cual es lícito), a menos que se demuestre que era inverosímil y que llevó a conclusiones irrazonables, lo cual no sucede en este asunto, es algo que carece de interés. En lo que concierne a si la pena de ocho años que se le impuso al imputado por estos hechos es la mitad del rango de ley o no, es un alegato que parte de que la exposición del a quo tiende a ubicarse en ese 50%, cuando lo cierto es que se habla de una “pena media”, pero aclarando en el acto que no se hace referencia a los setenta y seis meses aludidos por el defensor, sino a ocho años de prisión, respecto a los cuales se ha desarrollado la valoración punitiva de los Jueces. Esto queda plenamente visible desde el folio 17279 (y se puede leer en la transcripción hecha arriba), en que el a quo dice que no procede imponer ni el máximo ni el mínimo posibles, sentido en el cual se habla de una “pena media” más adelante. A partir de allí, y tomando en cuenta todas las circunstancias conducentes del hecho y las condiciones personales del endilgado (incluyendo sus antecedentes públicos), se procede reiteradamente a decir que lo prudente son ocho años de prisión. Por último, si la salud del acusado no es la mejor, ese es un aspecto que puede ser abordado por el letrado de la defensa en la fase de ejecución de sentencia, a fin de asegurar el mejor bienestar posible para su cliente. De igual modo, a pesar de que es lamentable la situación en que quedan los hijos del acusado, al igual que los hijos de cualquier persona privada de libertad, lo cierto es que ese es un elemento cuya importancia palidece y es relativamente leve al comparárselo con la gravedad de los hechos en que incurrió. En consecuencia, ambos son tópicos que no tienen mayor relevancia en la fijación de la pena que el defensor reclama.

VII.- A continuación, reprocha el recurrente que el Tribunal tuvo por demostrado que el señor A. entró en posesión de los certificados de inversión de la familia H, ordenando su redención anticipada sin que existiera estudio previo, para cancelar un crédito que irregularmente le había concedido a la sociedad anónima Kiona San Francisco. Entonces, dice el petente, mientras que por una parte se lo tiene por no propietario de los títulos, sino como funcionario del banco que autorizó la redención de aquellos, de seguido se dice que él adquirió los títulos y los redimió, para proceder al pago conocido. Todo se resuelve, dice el defensor, observando que media una carta de los dueños de los títulos solicitando su redención anticipada para cancelar las operaciones de crédito de la sociedad arriba citada. Entonces, quien ordena la redención es F, y no el acusado. Por otro lado, el mismo señor H. dijo que se había revisado los estados financieros de esa sociedad, cuyo crédito iba a asumir a cambio de los certificados de inversión, pareciéndole buenos. En tal dirección también declaró la accionista de la sociedad, señora E. De tal forma que no había razones para afirmar que A. había entrado en posesión de esos títulos y había ordenado su redención. Siendo así, se violentó una serie de preceptos legales que debe llevar a casar la sentencia al respecto. Sigue diciendo el impugnante que el artículo 245 del Código Penal sanciona a quien haciendo uso de información privilegiada adquiriera o enajenara valores para beneficio propio o de un tercero, lo cual no sucedió en este asunto, en el que A. no adquirió ni enajenó. Entonces, las mismas razones que llevaron al Tribunal a tener por atípicos algunos hechos, lo llevan a condenar por otros, lo que resulta contradictorio. Finalmente, replica que conforme a la reglamentación interna del Banco Elca, no había un monto máximo de liquidación anticipada y que el pago de una deuda no amenaza la liquidez de un banco, porque lo que reduce es el pasivo. No es de recibo el reparo. Para poner las cosas en su justa dimensión, conviene recordar que el Uso de información privilegiada está previsto en el artículo 245 del Código Penal, que a la letra dice: “Será sancionado con pena de prisión de tres a ocho años quien conociendo información privilegiada relativa a los valores negociables en bolsa, sus emisores o relativa a los mercados de valores, adquiera o enajene, por sí o por medio de un tercero, valores de dichos emisores con el fin de obtener un beneficio indebido para sí o para un tercero. Para los efectos de este artículo, se considera como información privilegiada la que por su naturaleza puede influir en los precios de los valores emitidos y que aun no ha sido hecha del conocimiento público” (así adicionado este artículo por el numeral 185, inciso b), de la Ley Reguladora del Mercado de Valores No.7732 de 17 de diciembre de 1997.). En consecuencia, como lo apunta el defensor, es vital para dirimir el reclamo determinar si A., gracias al dominio de información privilegiada sobre los valores negociables en la bolsa, sus emisores o mercados, enajenó o adquirió valores de dichos emisores con el fin de obtener un beneficio indebido para sí o para un tercero. Nuevamente para tener a mano lo establecido en el fallo al respecto, conviene transcribir la parte conducente al hecho que se discute. De folio 17328 a 17337, el a quo dijo: “Se acusó y acreditó que durante el transcurso del mes de junio del dos mil cuatro, los señores F, M, F. y M. todos miembros de la familia H, como inversionistas del Banco Elca, le solicitaron al imputado C , la redención anticipada de cuatro certificados de inversión, a saber los N° 200027349, N° 200028337, N° 200027929 y el N° 200026056, cuyo monto global ascendía aproximadamente a seiscientos cincuenta y dos mil setecientos veintiséis dólares con cincuenta y seis centavos ($652.726.56) y que vencían, los dos primeros, el trece de setiembre del dos mil cuatro, el tercero el siete de abril del dos mil cinco y el último el siete de octubre del dos mil cuatro, negando el imputado tal posibilidad bajo el pretexto de que sería perjudicial para el flujo de caja cosa que, como ya indicamos, no argumentó respecto a las solicitudes de su padre y esposa pero que, en todo caso, denota -una vez más- el conocimiento que él tenía de la situación irregular del banco y de las consecuencias de esas redenciones. En su lugar A. ofreció cambiar dichos certificados de inversión por un “crédito” que, a su favor, tenía el Banco Elca S.A. con la Sociedad Inversiones Kiona San Francisco S.A. por cuatrocientos cincuenta mil dólares y que tenía como garantía prendaria el treinta y cinco por ciento (35%) de las acciones de Financorp Puesto de Bolsa y el treinta y cinco por ciento (35%) de las acciones de Financorp SAFI, propiedad de A., crédito este aprobado unilateral e irregularmente por A. según se abordará luego (aparte X). El veintiocho de junio del dos mil cuatro, se presentaron al Banco Elca S.A. los hermanos F. y M. y entregaron a C. los respectivos certificados de inversión debidamente endosados y firmaron unas notas, que el citado acusado les presentó, en las que se solicitaba al Banco Elca S.A, la redención anticipada de los títulos que hasta entonces les pertenecían. Acto seguido el encartado ordenó la redención anticipada de esos títulos y sus correspondientes intereses y procedió a cancelar el crédito que tenía Inversiones Kiona San Francisco S.A. con el Banco Elca S.A.. Como los señores H. también tenían deudas con dicha entidad el acusado, con el resto del dinero y ante solicitud de ellos, decidió cancelar las operaciones de crédito N° 000300012946, Nº 000300012679 y Nº 000300012429. Al día siguiente de esa operación fue intervenido el Banco Elca S.A. y, poco tiempo después, también lo fueron las sociedades Financorp Puesto de Bolsa S.A. y Financorp Sociedad de Fondos de Inversión S.A. Como se ha expuesto, no existe ninguna restricción de la SUGEF para que las entidades bancarias realicen cancelaciones anticipadas de certificados de inversión, cuando así lo solicite el cliente. De igual modo corresponde a cada Banco o entidad financiera, regular todo lo referente a ese punto, como en efecto lo hizo el Banco Elca S.A cuando aprobó el "Manual de Políticas de Emisión de Certificados de Inversión" en fecha 15 de abril del 2002. Como parte de los requisitos para esas redenciones se estableció que el inversionista debía solicitar por escrito la cancelación anticipada de su respectivo título y que las mismas serían autorizadas y aprobadas por la Presidencia, Subgerencia General o Gerencia General, no existiendo limitación en cuanto al monto. También podían consentirlas la Gerencia Financiera y Operaciones, la Jefatura de Servicio al Cliente o Tesorería, la Supervisión de Plataforma de servicios, pero estas sí, con límite en los montos. De lo antes expuesto y siempre conforme al referido "manual" se desprende que para cuando se solicita la redención anticipada de los certificados de inversión a favor de los Hermanos H. en el mes de junio del dos mil cuatro, el imputado C, como Presidente Ejecutivo y dueño del Banco Elca S.A sí tenía la posibilidad de redimir anticipadamente los certificados de inversión de la familia H, sólo que en ésta oportunidad no quiso hacerlo bajo el pretexto de que era una suma de dinero muy alta y que era imposible para el banco. ¿Cómo la redención anticipada de los certificados de inversión (aprobada por el imputado el 28 de mayo del 2004) de su padre que alcanzó una suma total de noventa y nueve millones, seiscientos veinticinco mil, ciento noventa y seis colones con cincuenta y seis céntimos (99,625,196,56), no representó un problema para el banco? Un aspecto que no debemos de obviar es que, como se dijo al analizar la redención anticipada de los certificados de inversión de sus familiares (VII.1), el imputado para la época citada tenía pleno conocimiento del grado de irregularidad en la que se encontraba el Banco por él dirigido. Rescatamos aquí los oficios SUGEF-623-2004 de 17 de febrero del 2004 (folio 50 tomo I), SUGEF 1082/200402588 de 17 de marzo del 2004 (folio 19 tomo I) y el SUGEF 1881-2004 de 13 de mayo del 2004 (folio 93 tomo I), remitidos a J, en ese entonces Gerente General a.i. de ese ente, a la Junta Directiva del Banco Elca S.A. y a A. Gerente General del banco para el 13 de mayo del año 2004 no pudiendo pensarse que, por estar dirigidos a otras personas, le eran ajenos al dueño y Presidente Ejecutivo de esa entidad bancaria, cuya experiencia en el área financiera le permitía prever a "un futuro muy cercano", las consecuencias negativas de las irregularidades encontradas por las respectivas autoridades de la Superintendencia. Como ya se dijo, los testimonios de M, J, J, E, M,, W, M, M, R, P, W, entre otros testigos, han sido muy claros al describir el ambiente de tensión e incertidumbre que vivieron los empleados del Banco previo a la intervención, de cómo se realizaban reuniones en las que participaba el imputado A., con la única intención de "tranquilizarlos", de cómo desde antes que se decretara la intervención ya habían funcionarios de la SUGEF en las instalaciones del Banco que estaban dedicados a investigar y detectar las anomalías. Recuérdese por ejemplo lo indicado por M "...el ambiente en el banco en el primer trimestre del 2004 era muy tenso, habían muchos cambios, a nivel laboral había incertidumbre, se decía que el Banco necesitaba aumentar su patrimonio, se decía de problemas... se habló que venía capital de Venezuela, de una posible compra por un banco más grande, no sabíamos si nos quedaríamos o nos despedirían, se hacían reuniones y se nos informaba, don C. participaba activamente, él nos informaba, él se mostraba entusiasta con ese negocio..." y J. "en octubre de 2003 la Sugef evalúa la cartera, se le fue la mano a la SUGEF y nos obligaron a crear una provisión desmedida de 477 millones de colones adicionales a la que ya teníamos que era de 570 millones. La provisión mínima requerida era de 1100 millones de colones. Seguimos los caminos y no hubo forma de cambiar eso. Esa situación obligaba al Banco, si se creaba la provisión, a salir con resultados negativos y para cumplir el plan de salvamento y salir con riesgo normal la cartera de crédito tenía que subir una barbaridad. Don H. no estaba. Se le presentó a don C. la situación.” Todo esto para reafirmar, una vez más, que no es cierto -cómo se ha insistido- que el imputado C. ignorara la mala situación que estaba atravesando el Banco Elca, así como que desconociera que la SUGEF estuviera realizando estudios a fin de detectar el o los motivos que precisamente llevaron, tiempo después, a que se ordena su intervención. Valga aclarar que el tema aquí no es si el imputado C. podía o no aprobar y firmar la solicitud de redención anticipada que habían solicitado los hermanos H. (que ya se dijo atrás que si) sino, precisamente, el "uso de información" que utilizó para beneficiarse indebidamente pues, si bien es cierto no aprobó en un primer momento la solicitud que se le hiciera a favor de los propios inversionistas, si aceptó hacer un cambio, consistente en que los hermanos H. le entregaran los cuatro certificados de inversión que tenían en el banco por un monto aproximado de seiscientos cincuenta y dos mil setecientos veintiséis dólares, con cincuenta y seis centavos ($652.726.56) y él, en su lugar, les entregaba un crédito que el Banco Elca S.A. en fecha 31 de mayo del 2004 le había conferido a la Sociedad Inversiones Kiona S.A. por un monto de cuatrocientos cincuenta mil dólares ($450.000), cuya garantía consistía en el 35% de las acciones de Financorp Puesto de Bolsa S.A y el 35% de las acciones de Financorp Sociedad administradora de Fondos de Inversión siendo que, una vez aceptada la propuesta, el imputado inteligentemente procede, ahora sí, a cancelar anticipadamente esos cuatro certificados de inversión y con el dinero producto de esa redención, no sólo cancela tres operaciones de crédito que la familia H. y sus empresas tenían con el Banco Elca sino que también se apura para cancelar el crédito que, en forma irregular, él mismo había otorgado a Inversiones Kiona S.A (éste punto será abordado más adelante). Es precisamente esta maniobra lo que se le cuestiona, pues resulta más que claro el objetivo que persiguió al "adquirir" por ese medio los certificados de inversión de la familia H. Ahora bien, pasemos entonces al examen de la prueba relacionada con los hermanos H. y que, en definitiva, nos viene a corroborar lo afirmado líneas atrás. Nos dice el señor F, que él y su familia eran clientes del Banco Elca tanto a título personal como a nombre de sus empresas Industria Textil, Industria Ella S.A, Dulce Cuidado S.A. e Importaciones Herrero. Tenían, en dicha entidad, los certificados de inversión N° 200027349, Nº 200028337, Nº 200027929 y Nº 200026056, que vencían el 13 de diciembre, 13 de setiembre del 2004, 07 de abril del 2005 y 07 de octubre del 2004, respectivamente. De igual modo sus empresas habían adquirido los créditos N° 000300012946, Nº 000300012679 y Nº 000300012429 en el mismo Banco Elca. Hace ver que para el primer semestre del dos mil cuatro, las inversiones que tenían eran de aproximadamente trescientos sesenta mil dólares ($360.000) y ciento diez millones de colones (110.000.000 colones). Señalando que cuando se escucharon los rumores de que el banco andaba mal (que, por tanto, si eran del conocimiento público con mayor razón conocía su Presidente C), decidió buscar a C. para que redimieran los certificados que tenían, aunque perdieran un porcentaje del valor, pero éste les dijo que no era posible porque la suma era muy alta, diciéndole que se quedara tranquilo porque habían dos o tres ofertas de compra del banco, una de un grupo mexicano y otra de un banco americano. Sigue diciendo el testigo "Le insisto y lo que me dijo era que cambiáramos las inversiones por créditos sanos en otras empresas, me ofrece un crédito de Inversiones Kiona por cuatrocientos cincuenta mil dólares y tenía como garantía el 66% las acciones de Financorp puesto de bolsa y Financorp, me dio balances del mes anterior, los estudié, los balances reflejaban información muy agradable". Razones por las que al final decide aceptar la propuesta de C. en el entendido de que la dueña de la Sociedad Inversiones Kiona S.A., señora E, le daba un primer abono de ciento veinte mil dólares ($120.000), que las operaciones de crédito de sus empresas se cancelaran y, con el resto que sobraba, se haría el canje de sus inversiones por el crédito de Inversiones Kiona S.A.. Todo esto sucede el 28 de junio del 2004. Sin embargo, al día siguiente se ordena la intervención del Banco Elca S.A. y posteriormente se extiende la intervención a otras entidades relacionadas con la Corporación Elca S.A. como Financorp Puesto de Bolsa y Financorp Puesto de Fondos de Inversión perjudicándose, en consecuencia, los intereses de la familia H. Resulta de interés la testigo E. quien laboró para Financorp desde el año de 1996 hasta agosto del 2004, no sólo porque tiene relación directa con las negociaciones de don C. alrededor de las redenciones de los certificados de inversión de la familia H. sino porque, también, aclara puntos con respecto a la sociedad Inversiones Kiona S.A. que también son importantes en el tema de las operaciones back to back (sobre lo que se volverá en el aparte X). Señala que en alguna oportunidad C. le sugirió que comprara el 5% de Financorp puesto de bolsa, por lo que Bancrecen le otorgó un crédito a través de una sociedad que ella compró llamada "Inversiones Kiona S.A.", préstamo que todavía está pagando. Para el 2004 el imputado le manifestó que los venezolanos -en el punto X de la sentencia se destaca ese hecho como parte del "plan de salvamento" del Banco Elca- ya no estaban interesados en comprar el Puesto de bolsa ni el de Fondos de inversión y le ofreció vender el 50% de las acciones de Financorp, diciéndole que el Banco le podía prestar como cuatrocientos cincuenta mil dólares ($450.000) y que una sociedad de él, denominada Santa Damiana, le prestaría el resto. La compra se hizo a nombre de Inversiones Kiona y las acciones de Financorp Puesto de Bolsa y Puesto de Inversiones se dieron como garantía, en total la obligación sumaba aproximadamente novecientos mil dólares. El deudor era, entonces, Inversiones Kiona que no tenía cuenta corriente y tuvo que abrirse una en el Banco Elca y ahí se desembolsaron los dos préstamos. En relación con los certificados de inversión de la familia H. es importante resaltar textualmente lo siguiente "en algún momento don C. me habló que estaba reuniéndose con el superintendente de bancos y que le objetaba el crédito que se le dio a Inversiones Kiona, le pregunté por qué si estaba respaldado por acciones y me dijo que insistían que Inversiones Kiona cancelara ese crédito porque si no lo iban a calificar mal y provisionar el dinero, me dio una angustia terrible pero le dije que no podía pagar de la noche a la mañana y me dijo que había un cliente del banco en diversas cosas que estaba dispuesto a comprarle al banco el crédito, que quería ver los estados financieros de Financorp fui al banco, me reuní con esa persona F, le llevé estados financieros de ambas sociedades, me dijo que lo iba a pensar, estaba acompañado de su asesor, no sé si financiero o abogado y muy cerca de eso don C. me dijo que su cliente había aceptado firmar el crédito, yo seguía siendo una deudora, a quien le debiera era indiferente. Firmé el crédito con esa persona, las acciones quedaban liberadas del fideicomiso de banco Elca y quedaban al nuevo acreedor de Kiona." Véase aquí claramente por qué a C, para el 28 de junio del 2004, le era ya urgente conseguir dinero para cancelar el crédito otorgado -irregularmente- a doña E. (es decir, para evitar una reclasificación del préstamo que implicaba aumento en las provisiones), y la manera más fácil de obtenerlo fue adquiriendo los certificados de inversión de la familia Herrero pues, de otra forma, no tenía dinero para hacerlo. Con relación al crédito otorgado el 31 de mayo del 2004 a la sociedad Inversiones Kiona San Francisco S.A. -nombre jurídico completo- cuya representante legal y apoderada generalísima sin límite de suma es E. debe hacerse la siguiente observación. Según han señalado algunos testigos, sobre todo ex servidores del Banco Elca, la aprobación de un crédito debía pasar primero por un comité de crédito que se reunía todas las semanas y que estaba conformado por C, J, H., por el jefe de crédito y el jefe de la gerencia de negocios. Así nos dice J. que los casos eran preparados por los ejecutivos de negocios y se pasaban primero por un pre comité un día antes de la reunión semanal, ese día se llevaba todo lo tramitado por los ejecutivos y se circulaba la carátula de crédito con la parte resolutiva y se estampaban las firmas de los presentes para que así el crédito quedara aprobado, luego vendría el proceso de formalización. Señala que en algunas oportunidades una solicitud de crédito podía circular entre los diferentes niveles aprobatorios sin que estuviera reunido el comité de crédito pero que ello no significaba el incumplimiento de los procedimientos, de hecho en la sesión siguiente del comité debían incluirse las respectivas actas de aprobación. Hace ver que para el 2004 habían créditos que no pasaron por el comité de crédito y eran firmados solamente por don C. o don H. y a veces por los dos. Con respecto al crédito de Inversiones Kiona indica que, dentro de las operaciones irregulares con las que él se encontró, fue la formalización de un crédito que el imputado C. tramitó directamente a nombre de una empresa de E. que se canceló quince o veintidós días antes para que no saliera en los enredos de la SUGEF y eso no fue al comité de crédito. En igual sentido el testigo M. nos habla de la existencia de un comité de crédito que estudia las diferentes solicitudes de crédito y luego debe tomar una decisión colegiada; hace mención -como dato importante- de la jerarquía de firmas que podían ser calificadas como A o como B, en su caso personal era firma B y no tenía la facultad de aprobar un crédito por sí; el imputado C, don J. y don H. según su versión, eran firmas clase A. De tal forma que un crédito se podía aprobar con una firma A y una firma B, con dos firmas A, o tres firmas A según los reglamentos pero, de hecho, bastaba una firma A “más si venía de don C. o don H, es muy probable que se hiciera, en un Banco si la persona de mayor jerarquía lo ordena uno no se puede oponer si no lo despiden.” El testigo H. también se refiere, en su amplia declaración, al comité de crédito y a las firmas que se requerían para la aprobación de un crédito, señaló “Los créditos eran sometidos al Comité de Crédito previo análisis del área respectiva, el comité sesionaba los martes, estaba integrado por funcionarios de cierto nivel del banco con Z, F, el jefe de cobro, de crédito, ejecutivos de cuenta, E, A y yo, se firmaban los documentos de crédito aprobando o rechazando. Normalmente habían firmas tipo A y tipo B y creo que hasta de tipo C porque el comité a veces no sesionaba en pleno y se requerían dos firmas A y una B ó tres B y una A, ahorita no recuerdo cómo era la mezcla, pero si había una composición para aprobar los créditos. Todos los miembros del comité teníamos participación para firmar, la mía era tipo A. No es necesario que todos estén juntos para aprobar un crédito, a veces se aprobaban como comité circulado, se iba uno por uno a los que estaban presentes. Normalmente era el ejecutivo de cuenta quien lo hacía circular o el jefe de crédito en créditos empresariales. Recogidas las firmas el expediente regresaba al departamento de negocios o de crédito personal y luego se coordinaba la formalización.” Nuevamente el testigo M. se refiere al comité de crédito, indicando que se reunía cada semana y se hacía un estudio, se discutía si se aprobaba o no. En cuanto a los integrantes menciona a C. y a J, en dicho comité se hacía una carátula con todos los detalles de la operación, pero habían créditos que, a pesar de no reunir los requisitos, se aprobaban por simple orden de la Presidencia o la Gerencia porque ellos decían que “eran clientes importantes y que posteriormente ellos recolectarían los documentos.” Se trataba de créditos que no cumplían los requisitos mínimos, que a veces no tenían garantía. Indica que la categoría del crédito es asignada por el analista financiero, pero en esos créditos la categoría ya venía asignada en la carátula. Al igual que los anteriores testigos alude al comité circulado con relación a créditos que eran urgentes o por el tipo de cliente que se tramitaban con falta de firmas, mismas que después serían recogidas. Contamos también con la declaración de E , ex directivo del Banco quien indicara “Si tuve conocimiento de créditos que no se aprobaron como yo indiqué, podía ser por la premura porque el comité se reunía una vez por semana, me parece que se llamaba "comité circulado", se solicitaba una carátula de crédito que circulaba en mandos medios del banco. Con una sola firma creo que no se podía hablar de comité circulado, creo que había un reglamento de la cantidad de firmas que debía llevar un documento”. Señala que tenía que haber una combinación de firmas, por ejemplo la del gerente de crédito, más la del jefe de crédito y don C. Por su parte don Oscar Rodríguez, en su condición de Superintendente de actividades financieras, en relación al tema del crédito otorgado a Inversiones Kiona San Francisco S.A. manifestó que ésta operación denotaba un alto riesgo porque, de acuerdo al análisis de capacidad de pago, esta sociedad quedó con un endeudamiento de un 80% y sólo podía pagar intereses y no el principal (pues ha de recordarse que el préstamo dado a E. para que ella efectuara la adquisición era "mientras" ella podía ubicar inversionistas que hicieran la adquisición de esas sociedades, según ella dijo). Agregó el superintendente que la política de aprobación de créditos es propia de cada entidad, que la SUGEF no la puede imponer pero que si exige existan políticas claras, que según la normativa interna del banco se requería una combinación de firmas para la aprobación y que, en el caso del Banco Elca, a veces no se cumplía con esa exigencia. Las declaraciones traídas a colación nos vienen a aclarar cuál era la política a seguir para la aprobación de un crédito mismas que, en el caso de Inversiones Kiona San Francisco S.A., no se siguieron ya que dicha operación bajo el N° 300012945, fue aprobada únicamente por el imputado. Recuérdese que el mismo C. es quien le dice a doña E. que el Banco le podía prestar cuatrocientos cincuenta mil dólares ($450.000) y que una sociedad de él –Santa Damiana- le prestaría el resto para que así ella pudiera comprar el 70% de las acciones de Financorp, operación que cancela el 29 de junio cuando ya había adquirido los certificados de inversión de la familia H. Lo narrado hasta aquí nos permite esbozar dos hechos independientes: por una parte la aprobación irregular del crédito a favor de Inversiones Kiona S.A. que hizo el imputado, hecho que -como se indicará- es uno más de los que integra el delito de administración fraudulenta que se le viene endilgando y, por la otra, la redención anticipada de los certificados de inversión de los hermanos Herrero, sin ningún estudio sobre el impacto que eso tenía sobre las menguadas finanzas del Banco Elca S.A. para esa fecha, con el fin de, con ese dinero de esa forma adquirido y sabiendo la información de escasa circulación sobre las gravedad de las finanzas de la entidad que dirigía, poder cancelar aquel crédito otorgado unos días antes. Las consecuencias jurídicas de ello, tanto como de las otras redenciones, se analizarán enseguida.” De forma que queda patente que la maniobra desarrollada por A. estuvo precedida por una actuación anómala de su parte, como fue la concesión de un crédito a doña E,a la cual le había ofrecido vender el 50% de las acciones de Finacorp. Cuando esta le dijo que no tenía dinero, aquel le ofreció darle un préstamo de 450.000 dólares por parte del Banco Elca y el resto por parte de una sociedad suya, denominada Santa Damiana. El crédito, contrario a la normativa interna del banco, lo concedió individualmente el acusado a Inversiones Kiona de San Francisco, la cual quedó como deudora y dio como garantía las acciones de Financorp. Después de esto, el acusado necesitaba cancelar el crédito irregular que la había concedido a esta última sociedad, para lo cual se valió de los certificados de la familia H. Con ese objetivo, al presentarse los titulares de esos certificados a solicitar su redención, A. les dijo que no era posible, porque afectaría el flujo de caja (a contrapelo de lo que ahora argumenta el recurrente). Como alternativa, y a sabiendas de la precaria situación de la entidad bancaria por las fuentes que enumera el fallo, les ofreció a cambio de los títulos un crédito que el Banco tenía por cuatrocientos cincuenta mil dólares con la Sociedad Inversiones Kiona San Francisco S.A. y que tenía como garantía prendaria el treinta y cinco por ciento (35%) de las acciones de Financorp Puesto de Bolsa y el treinta y cinco por ciento (35%) de las acciones de Financorp SAFI, negocio en el que estuvieron de acuerdo. Fue cuando los hermanos H. se presentaron al banco a hacer entrega de los certificados de inversión endosados, que A. les presentó las notas solicitando la redención, a pesar de que antes les había dicho que no era posible. Luego, el propio acusado ordenó la redención usando dichas notas y canceló con el producto el crédito irregular ya mencionado. Al día siguiente, tanto el banco como las sociedades Financorp fueron intervenidas. En suma, hasta aquí se tiene que A. empleó información privilegiada que tenía sobre la situación de los valores bursátiles de Elca y Financorp, así como de sus emisores. Ahora viene resolver si es que, en procura de un beneficio injusto, ese endilgado procedió a adquirir o enajenar, valores de dichos emisores. La respuesta es positiva. Para encubrir sus actuaciones anómalas, tenía que cancelarlas antes de que salieran a la luz, sobre todo cuando era inminente la intervención del Banco Elca. Para ello, como dijo el Tribunal “…la manera más fácil de obtenerlo fue adquiriendo los certificados de inversión de la familia Herrero pues, de otra forma, no tenía dinero para hacerlo.” En otras palabras, adquirió los certificados de inversión de los Hermanos H, los mismos que antes había rechazado redimir, pues ese acto era perjudicial al flujo de caja; pero que ahora, una vez que los había conseguido, procedió a cambiar y a cancelar el préstamo que él mismo había otorgado a la sociedad de la señora A. para que le comprara acciones de otras sociedades suyas (de A.). En síntesis, sí hubo un uso de información privilegiada en los términos de la legislación antes referida. Sin lugar el motivo.

VIII.- En el siguiente motivo, se recrimina que cuando se atribuye el uso de información privilegiada, se requiere que esta sea un dato concreto, y no una suposición. En el caso de los señores H, la información no era privilegiada, pues estos solicitaron la redención de los certificados cuando escucharon un rumor sobre la mala situación del Banco Elca, de modo que era de carácter público. Dice el defensor que en todo el fallo no se dice cuál es la información que se estima privilegiada. En ese sentido, transcribe algunos párrafos de la resolución, de los cuales afirma que no se puede inferir que se estuviera ante información privilegiada. Lo que sucedió, fue que los señores H, ante comentarios sobre el fracaso de las conversaciones del Banco Elca con un grupo de venezolanos para que lo compraran, prefirieron cambiar sus títulos, siendo a que la alternativa ofrecida por el justiciable de adquirir un crédito de una compañía que no mostraba problemas financieros, era un negocio plenamente legal. No es de recibo el motivo. Para empezar, no es cierto que la sociedad Kiona de San Francisco tuviera la situación solvente que se sugiere ahora. A. sabía que, para poder comprar las acciones de Financorp, había tenido que obtener un préstamo por la totalidad de su valor, quedando con un endeudamiento del 80%, y pudiendo sólo pagar intereses y no el principal. Luego, el hecho de que se escucharan rumores o comentarios públicos acerca de la situación del Banco Elca, no comporta ni mucho menos que su situación interna fuera de dominio público, como plantea el defensor. Fuera del banco, podía existir la sensación o el comentario de que las cosas no andaban bien. Pero de allí a manejar la situación interna, con sus montos, puntos de debilidad o eventuales fortalezas, salidas posibles o cerradas, alternativas liquidatorias y, sobre todo (por ser lo atinente al caso), irregularidades que encubrir y la inminencia de una intervención que se cernía en vista de las reiteradas advertencias de la SUGEF, esos eran todos aspectos de dominio de muy pocas personas y, principalmente, de A.. De ahí que el haber efectuado las transacciones ya tales vicisitudes, era efectivamente un uso de información privilegiada.

IX.- En el noveno motivo, indica el defensor que en el hecho probado 42, el Tribunal tuvo por acreditadas las pérdidas para el banco a raíz del préstamo concedido a favor de la compañía Inversiones Tres Mil Sociedad Anónima, propiedad de J. Luego, empleando diversas personas jurídicas, sostuvo el a quo, A. logró sustraer los novecientos mil dólares de aquel préstamo. Dice el defensor que aseverar que se “saqueó” el banco por ese monto, está en contradicción con los hechos probados que van del 47 al 56, en los que se consigna que tales fondos se unificaron en la cuenta operativa de Bosques de Ayarco sociedad anónima, y regresaron al banco. “Lo que ocurrió, como puede verse, si se aplican las reglas de la lógica y de la administración, no es un saqueo sino una operación contable, con el propósito de disminuir la morosidad de la cartera del Banco…”, argumenta el quejoso. Al percatarse de que un crédito pierde las garantías, es preferible darle un poco más de plazo, para que no pase a ser una pérdida. Las nuevas operaciones, en consecuencia, al contar con plazos nuevos, permitían que la cartera del Banco no se deteriora tanto; mas no constituían una pérdida, la cual sólo provenía del préstamo otorgado a Inversiones Tres Mil. Pensar lo contrario, es acoger la versión de G. en cuanto a que F. le prestaba sus sociedades a A. para que obtuviera dinero. Por otra parte, en lo que toca a los créditos irregulares que se gestionaron a nombre del señor B., la pérdida surgió del primer crédito que con toda normalidad se le dio (posterior a lo cual no hubo ningún egreso), no en las dos prórrogas autorizadas por el endilgado y en que al final el crédito apareciera a nombre de Santa Damiana sociedad anónima, entidad perteneciente al justiciable. No hubo, en síntesis, apropiación alguna de dinero por parte de A.. No es atendible el reparo. Nuevamente, dada la profusión de movimientos y la complejidad global de la situación, conviene transcribir lo que el fallo estableció al respecto. De folio 17346 a 17358, los Jueces indicaron: “Se acusó que el veintidós de abril de 2003s (sic) J. presentó ante el Banco Elca S.A. una solicitud de préstamo a favor de su sociedad Inversiones Tres Mil S.A. por la suma de ochocientos veinticinco mil dólares ($ 825.000.00). Como garantía se ofrecieron cuatro certificados de inversión que poseía en el Banco Elca S.A. el inversionista, Michael Andrew Carabetta a nombre de Inversiones Savinelli S.A. que representaban la suma total de un millón de dólares ($1.000.000.00) y vencían el 21 de julio del 2003. Al vencimiento de los certificados, estos se renovaron por los certificados N° 000200025319 y Nº 000200025320 por un valor cada uno de cuatrocientos veinte mil colones que vencerían hasta el veintiuno de julio del dos mil cuatro, sin embargo antes de su vencimiento fueron redimidos anticipadamente, presuntamente por A., dejándose sin garantía la obligación contraída por Inversiones Tres Mil. El crédito se aprobó bajo la operación N° 300011698, el veintinueve de abril de 2003 se giró un desembolso inicial de ochocientos mil dólares girado a favor de F. como representante de la sociedad Inversiones Tres Mil S.A.. Estos hechos fueron objeto de una conciliación en la causa TP 06-0027-515 del Juzgado Penal de éste circuito, por lo que no serán conocidos o juzgados en esta sentencia pero sirven de contexto para determinar lo acaecido después. Con el fin de cancelar el crédito aprobado a favor de Inversiones Tres Mil S.A. se acusó y acreditó que C. entre el veinticinco y el veintiséis de febrero de dos mil cuatro, aprobó unilateralmente -en su calidad de máximo jerarca del Banco ELCA S.A.- cinco créditos directos a favor de las sociedades Punta Palmira PP S.A., Bauza Casa Grande S.A., Por Larrañaga S.A., La Gloria Cubana S.A. y Mobiliaria Activa Dos Mil Ocho S.A. mismas en las que C. figuraba como su socio constituyente, presidente y apoderado generalísimo sin límite de suma y a las que otorgó créditos que sumaban en total la suma de novecientos cinco mil dólares ($905.000.00); una vez confeccionados los respectivos cheques de gerencia a nombre de cada una de las sociedades, fueron acreditados en una cuenta denominada "cheques de gerencia", posteriormente son reversados por A. para proceder a emitir otros cinco cheques de gerencia por el mismo monto pero a favor de la Sociedad Bosques de Ayarco, cuenta que tenía en el Transamerica Bank & Trust Ltd. (offshore del Banco Interfin S.A. en las Bahamas), estos nuevos cheques se depositan en una cuenta denominada "acreedores varios". El día veintisiete de febrero de 2004 la sociedad en cuestión emitió el cheque Nº 3260 por ochocientos once mil ochocientos treinta y cinco dólares con sesenta y siete centavos ($811.835.67) a favor de la sociedad Inversiones Tres Mil que se acredita en la cuenta de la sociedad Grupo Prisma Asem S.A. (propiedad de J. ) en el Banco Elca. Ese mismo día, en el Banco Elca S.A. emitió la Nota de Débito N° 77732 de la cuenta corriente del Grupo Prisma Asem S.A., para ser aplicada a la cancelación de la Operación de Crédito N° 300011698 a nombre de Inversiones Tres Mil S.A. Los cinco créditos que otorgó C. el veinticinco y el veintiséis de febrero de 2004 a las sociedades ya mencionadas fueron reclasificados por la SUGEF como “incobrables o de un valor de recuperación sumamente bajo” en perjuicio del Banco Elca S.A. VIII.1 Análisis probatorio en relación con C: Debe indicarse que la prueba que pasaremos a examinar en éste aparte, sobre todo la testimonial, también guarda relación con los otros temas que se han analizado y se analizarán en otros considerandos, de ahí que pueda parecer reiterativa, cuando en realidad no resulta así. Por el contrario es prueba que, por venir de ex empleados del Banco Elca, abarca distintos tópicos de la acusación que han quedado acreditados. De lo expuesto anteriormente, el tribunal logra determinar cinco circunstancias fundamentales: (i) el representante legal y apoderado generalísimo sin límite de suma de la Sociedad Inversiones Tres Mil S. A es el señor J. El 28 de abril de 2003 se aprobó a favor de esta persona jurídica la operación Nº 300011698 por la suma de ochocientos veinticinco mil dólares ($825.000.00), siendo la garantía del préstamo varios certificados de inversión que tenía el señor Michael Carabetta a nombre de Inversiones Savinelli S.A por la suma total de un millón de dólares; (ii) el imputado C. como Presidente Ejecutivo y dueño del Banco Elca, entre el 25 y 26 de febrero del 2004, en forma unilateral aprueba cinco créditos por un monto total de novecientos cinco mil dólares ($905.000.00) a favor de cinco sociedades controladas por él (ver tomo XI folios 4731 y siguientes, 4749 y siguientes, 4764); (iii) los dineros de esos créditos provinieron de los fondos del Banco Elca, siendo finalmente depositados en una cuenta a nombre de Bosques de Ayarco S.A que el acusado A. tenía en el Transamérica Bank & Trust Ltd en Bahamas; (iv) con esos dineros A. canceló el crédito otorgado a la sociedad Inversiones Tres Mil S.A, propiedad de J; (v) todos los créditos de las cinco sociedades fueron declarados por la SUGEF como “incobrables”. Lo anterior se ha logrado acreditar gracias a las declaraciones de los testigos que nos aprestamos a examinar. Sin embargo, de previo es importante recordar que en el Banco Elca funcionaba un “comité de crédito” que, previo a cualquier aprobación de un crédito, estudiaba las solicitudes y verificaba que se cumplieran los requisitos exigidos, todo lo cual se comprimía en lo que los testigos han denominado “carátulas de crédito". Así rescatamos, por ejemplo, lo declarado por H. cuando dice “Los créditos eran sometidos al Comité de Crédito previo análisis del área respectiva, el comité sesionaba los martes, estaba integrado por funcionarios de cierto nivel del banco con Z, F, el jefe de cobro, de crédito, ejecutivos de cuenta, E, A y yo, se firmaban los documentos de crédito aprobando o rechazando. Normalmente habían firmas tipo A y tipo B y creo que hasta de tipo C porque el comité a veces no sesionaba en pleno y se requerían dos firmas A y una B ó tres B y una A, ahorita no recuerdo cómo era la mezcla, pero si había una composición para aprobar los créditos. Todos los miembros del comité teníamos participación para firmar, la mía era tipo A. No es necesario que todos estén juntos para aprobar un crédito, a veces se aprobaban como comité circulado, se iba uno por uno a los que estaban presentes. Normalmente era el ejecutivo de cuenta quien lo hacía circular o el jefe de crédito en créditos empresariales. Recogidas las firmas el expediente regresaba al departamento de negocios o de crédito personal y luego se coordinaba la formalización.” En igual sentido J, cuando señala que el comité de crédito debía tomar las decisiones sobre las solicitudes de crédito que se presentaban; que los casos eran preparados por los ejecutivos de negocios que un día antes de la reunión del Comité los llevaban a un “precomité”. Con relación al expediente o carátula de crédito nos dice “Un expediente de crédito, materialmente, tiene los antecedentes del cliente, la solicitud, la investigación que se debe hacer, los datos de referencias bancarias, de la SUGEF, la portación de los estados financieros, flujos de caja, proyecciones, estudios de factibilidad, el análisis que una oficina del banco le hace al expediente, refrendado por un analista financiero quien da la recomendación. Contiene la parte de garantía y en la carátula se hace un resumen. Una copia simplificada estaba en el área de desembolsos." A este testigo se le mostró el legajo de prueba Nº 33 referente a la formalización crédito Punta Palmira S.A y dijo que no lo podía describir como un expediente de crédito porque no reunía las características, no había información financiera, no se indicaba de quién es la garantía fiduciaria, no se indica quién da el aval, hay una carátula aprobada por don H. y don C. pero las demás carátulas no llevan la firma de nadie, en igual sentido con el legajo de prueba N° 31 perteneciente a formalización B que es un “machote” que se usa cómo carátula de crédito para llevar al comité de crédito. Otro testimonio sobre ese punto es el de M. cuando refiere que el comité de crédito estudiaba los casos y luego tomaba una decisión colegiada, existiendo una jerarquía de firmas que se clasificaban como A, B o C. Asimismo, don M. hace ver que en el comité de crédito se hacía un acta de los créditos aprobados, luego se hacía una carátula de crédito que contenía todos los detalles de la operación. Un aspecto importante es lo referente al denominado “comité circulado de firmas” al que han hecho mención gran parte de los testigos, así por ejemplo don J. nos dijo que “se podía circular una solicitud de crédito a los diferentes niveles aprobatorios sin que estuviera reunido el comité de crédito según las necesidades. Eso significa que no iba al seno del comité para ser aprobado pero ello no permitía la falta de cumplimiento de alguno de los procedimientos que la SUGEF establece para la aprobación del crédito y en la sesión siguiente se incluían en las actas de aprobación.” Don H. al respecto indicó que todos los miembros del comité de crédito que participaran tenían que firmar, pero que no era necesario que todos estuvieran juntos para aprobar un crédito, que a veces se aprobaban como “comité circulado”, es decir que el ejecutivo de cuenta ponía a circular el documento y una vez que se recogían todas las firmas el expediente regresaba al departamento de negocios o de crédito personal y luego se coordinaba la formalización. M. y E. también se refieren en sus testimonios al comité circulado al decir, el primero, que habían créditos urgentes que se tramitaban con falta de firmas, que posteriormente se recogían, mientras que don E. nos dice que correspondía al ejecutivo de crédito como representante del cliente ante el banco, hacer circular el respectivo expediente de crédito. Todo esto es atinente a resaltar que un crédito no se podía aprobar así como así, sino que necesariamente tenía que ser conocido por un comité de crédito, es decir por cada uno de los miembros que lo conformaban y que, de acuerdo a los testigos, eran el mismo C, J, los jefes de cobro y crédito, los ejecutivos de cuentas, E y H. y que, de igual forma, dichos documentos requerían ser firmados por todos ellos en el mismo momento de su aprobación o posteriormente mediante el trámite de “comité circulado”, lo que no exoneraba que, en la sesión siguiente del Comité, esos créditos otorgados circuladamente se incorporaran al acta, lo que no sucedía con ninguno de los aquí tratados según tales testigos. De importancia resulta la existencia de diferentes clases de firma de los miembros del comité, que se requerían para la aprobación de un crédito y que se encontraban condicionadas según el monto a aprobar, así por ejemplo la firma clase A era la del Presidente Ejecutivo, es decir la de don C, la de don H. y la de J, firma B era la de J, la del gerente de negocios, la del jefe de crédito y la del jefe de análisis financiero, determinándose que necesariamente debía haber una mezcla de firmas para la aprobación de un crédito o varias tipo A pero nunca una sola, según los manuales, aunque -como se ha indicado atrás- A. había gestionado una práctica contra ellos aprobando créditos con su sola firma. Lo anterior se puede corroborar con los testimonios ya citados. Pasamos ahora a lo concerniente a la aprobación de los créditos a favor de las sociedades propiedad o relacionadas con el imputado C, todas debidamente inscritas ante el Registro Nacional Sección Mercantil según indican las certificaciones de personería de ellas constantes en autos. Así el 25 de febrero de 2004 C. aprobó un crédito directo a favor de Punta Palmira PP S.A. por doscientos cinco mil dólares ($205.000.00) que -luego de rebajado el rubro correspondiente por comisiones- originó el cheque de Gerencia de Banco Elca S.A, N° 15045 por doscientos tres mil cuatrocientos cincuenta y dos dólares con cincuenta centavos ($203.452.50); el 25 de de febrero del 2004 aprobó un crédito directo a favor de Bauza Casa Grande S.A. por ciento cincuenta mil dólares ($150.000.00) -que luego de rebajado el rubro correspondiente por comisiones- originó el cheque de Gerencia de Banco Elca S.A. N° 15046 por ciento cuarenta y ocho mil ochocientos sesenta y cinco dólares($148.865.00); el 25 de febrero aprobó un crédito directo a favor de Por Larrañaga S.A. por ciento setenta y cinco mil dólares ($175.000.00) que -luego de rebajado el rubro correspondiente por comisiones- originó el cheque de Gerencia de Banco Elca S.A. N° 15047 por ciento setenta y tres mil seiscientos setenta y siete dólares con cincuenta centavos ($173,677.50); el día 26 de febrero de 2004, aprobó un crédito directo a favor de La Gloria Cubana S.A. por ciento noventa mil dólares ($190.000.00), que -luego de rebajado el rubro correspondiente por comisiones- originó el cheque de Gerencia de Banco Elca S.A. N° 15049 por ciento ochenta y ocho mil quinientos cuarenta y nueve dólares con diecisiete centavos ($188.549.17); el 26 de febrero de 2004 aprobó un crédito directo a favor de Mobiliaria Activa Dos Mil Ocho por ciento ochenta y cinco mil dólares ($185.000.00) que -luego de rebajado el rubro correspondiente por comisiones- originó el cheque de Gerencia de Banco Elca S.A. N° 15048-4 por ciento ochenta y tres mil quinientos ochenta y siete dólares con ocho centavos ($183.587.08); debe decirse que todos los créditos fueron aprobados unilateralmente por el imputado C, sin observar los procedimientos establecidos conforme se ha explicado ya. Al respecto indicó J. que para el año 2004 había créditos que no habían seguido el procedimiento ya que se dieron operaciones que no pasaron por el comité de crédito y eran firmadas por el imputado C. o don H. Dice que no se dio cuenta cuándo fueron aprobadas, pero luego se enteró que esas operaciones tenían algún grado de relación con C., esto a través de unas actas de A. en donde se hablaba de varias empresas con créditos en el banco Elca y que eran sociedades del acusado A.. Se le mostró el legajo de prueba Nº 32 y hace la observación de que, por ejemplo, en esa operación no se especifica de quién es la garantía fiduciaria, en igual situación se encuentra el crédito a favor de la Sociedad Por Larrañaga S.A visible en el legajo de prueba N° 30. El testigo M. señala que se hacían operaciones de crédito que no pasaban por el comité de crédito y no tenían ningún análisis, sólo venían aprobados por don C, don H. o don J. El testigo M. indica “no todos los créditos cumplían con éstos pasos, habían créditos que se aprobaban por orden de la presidencia o la gerencia, ellos decían que eran clientes importantes y que ellos posteriormente recolectarían los documentos”. En su testimonio hace ver cómo algunos créditos a veces ni tenían la garantía y que algunos eran créditos directos a nombre de empresas de C., operaciones que no se conocieron en el comité de crédito ni en la Junta Directiva ni las conoció, tampoco, SUGEF, como debía hacerse con operaciones relacionadas con los personeros o accionistas del banco según dijera H y E. . Los créditos a Punta Palmira y a La Gloria Cubana S.A. fueron tramitados por la gerencia y aprobados por C., no se conocieron en el comité de crédito, la primera operación no se canceló. En igual sentido hace mención de la sociedad Por Larrañaga y Bauza Casa Grande en donde tampoco se otorgó la garantía y tampoco fue cancelada. Como dato interesante nos dice que al percibir el desorden se lo hace ver al imputado A., sobre todo preocupado por si llegaba la SUGEF, pero éste le dijo que no se preocupara porque él aportaría sus propias garantías. Se destaca lo declarado por el señor O. cuando, a raíz de los respectivos estudios que realizaron los inspectores de la SUGEF, encontraron una serie de créditos irregulares, bajo estos términos indica “Se dieron una serie de créditos cuyo perfil de riesgo era alto, procesos de aprobación no calzaban con políticas propias del banco, varias personas participando en aprobación se adolecía estudio capacidad de pago, se configuraron varios créditos por gestión de C., el proceso no calzaba, se le otorgó a empresas relacionadas con él o por gestión, sin análisis de capacidad de pago…” Señala que la política de aprobación de créditos es propia de cada entidad, la SUGEF no puede imponerla pero sí exigir que existan políticas claras, en el caso del Banco Elca se requería de tres firmas para aprobar un crédito y en algunos casos eso no se cumplía, no había un plan de pago o adecuaciones de pago sin sustento alguno. Por su parte C,. indica que, de acuerdo con los informes recibidos, se determina que algunos créditos relacionados con A. estaban morosos, que se habían prorrogado sin estudios técnicos, no había información financiera del deudor, habían sido aprobados por solo una persona, contrario a las políticas, etc. Se desprende de lo antes expuesto que prácticamente la mayoría de los empleados del Banco Elca de acuerdo a las funciones que desempeñaban, pudieron constatar la irregularidad en la aprobación de los créditos a favor de las sociedades de C. ya mencionadas pero, precisamente por su relación jerárquica, poco era lo que podían hacer cuando detectaban una irregularidad de esa naturaleza; irregularidades que efectivamente fueron determinadas por los funcionarios de la SUGEF que participaron en el respectivo análisis y que también se plasma en el informe SUGEF 2520-2004 que en lo que nos interesa señala "Como resultado del estudio realizado de la cartera de crédito con fecha corte al 31 de mayo del año en curso, se determinó que el Banco ha otorgado créditos a empresas vinculadas al Lic. C. por un monto de 871.449,8 miles, equivalente a $2,0 millones. Mediante la revisión de los expedientes de crédito de estos deudores se observó que el Lic. A. participó en la aprobación de al menos cinco préstamos otorgados a este grupo de empresas y en los casos de Inversiones Kiona San Francisco S.A y Punta Palmira S.A, solo consta la aprobación del Lic. C., lo cual va en contra de sanas prácticas bancarias y lo establecido en las políticas de crédito de ese Banco, las cuales establecen que para que los acuerdos del Comité de crédito queden firme deben estar presentes tres firmas A, o dos firmas A y dos firmas B". Como dato relevante se indica en ese mismo informe, que el monto prestado a ese grupo de empresas sobrepasa el límite del 20% del capital y reservas, asimismo algunos de esos créditos mostraron atrasos importantes y fueron objeto de prórrogas o readecuaciones sin que consten en los respectivos expedientes las justificaciones técnicas para ello. La defensa de A. ha alegado que en esos casos el imputado lo que pretendía era iniciar un comité circulado y que si ello no se produjo fue por incumplimiento de deberes de los funcionarios subalternos. No obstante, esa afirmación no es de recibo. Nótese que no se trataba de un intento de iniciar un comité circulado sino que A. firmaba y enviaba o daba la documentación a los funcionarios operativos y no a un ejecutivo para que recogiera el resto de las firmas. Inclusive M. y S. refieren que si había oposición a esas gestiones el crédito aparecía, al día siguiente, aprobado en el sistema. Por lo demás, nunca A. hizo ver, en la sesión siguiente del Comité de Crédito, que faltara incluir en las actas créditos que iniciaron como circulados (según su dicho de defensa), lo que hubiera podido hacer de ser esa la situación real -que no lo era conforme a lo expuesto- y por el dominio que tenía del acontecer del banco. Habiéndose acreditado la manipulación de los créditos por parte de C., a favor de sus sociedades, se hace necesario entrar a conocer cuál fue la maniobra efectuada por éste para desvanecer la atención sobre los mismos. Resulta que una vez que C. aprueba los respectivos créditos y gira los cheques con los montos de dinero que correspondían a cada sociedad, posteriormente los reversa y emite otros cinco cheques por el mismo monto pero a favor de Transamérica Bank & Trust Ltd. en una cuenta de la sociedad Bosques de Ayarco que A. -a nombre de una sociedad que controlaba- tenía en ese Banco. El 27 de febrero del 2004 esta sociedad emite un cheque por ochocientos once mil ochocientos treinta y cinco dólares con sesenta y siete centavos ($811.835.67) a favor de la sociedad Inversiones Tres Mil S.A, dinero que se acredita en una cuenta de la sociedad Grupo Prisma Asem S.A. propiedad de J, de esta forma el Banco Elca emite una nota de débito de esa sociedad y se aplica en la cancelación del crédito que el imputado C. había otorgado a favor de Inversiones Tres Mil. De esta forma el imputado C. logra cancelar el crédito que le fuera otorgado a Inversiones Tres S.A. (ver en el tomo V los folios 1945, 1949 y 1952 y los informes 451-DEF-454-04 y su ampliación 24 DEF-509-04/05). VIII.2 Análisis probatorio en relación con J: En relación con el imputado J, la pregunta que debemos hacernos es si efectivamente tuvo alguna participación en la aprobación del crédito a favor de Inversiones Tres Mil, entidad de la que él era su representante legal. La prueba testimonial tantas veces citada ubica a don J. dentro de la jerarquía del Banco Elca quien junto con C. y H. Ellos tenían la facultad de aprobar créditos, claro está, previa observación de los procedimientos establecidos, lo cual no implica que necesariamente en esta oportunidad haya dado el visto bueno al crédito de Inversiones Tres Mil S.A. La pieza acusatoria establece que el 22 de abril del 2003 J. solicitó un préstamo al Banco Elca S.A., por un monto de ochocientos veinticinco mil dólares ($825.000.00) a nombre de la sociedad Inversiones Tres Mil S.A. El imputado F. en su declaración indagatoria se refiere especialmente a ese tema y al revisar el legajo de prueba N° 36 hace la observación de que el mismo contiene una serie de anomalías, solicitando nuevamente que se le realice una prueba grafoscópica al documento "solicitud de crédito" que se adjunta al legajo probatorio. Sobre ese particular se contó en juicio con los peritos J.P. y M.O. quienes, al examinar el folio 26 del legajo de prueba N° 36, llegaron a la conclusión de que la firma que precede a la solicitud de crédito de fecha 22 de abril del 2003, no fue hecha por J. Lo anterior implica, entonces, que no es cierto, como se ha expuesto en la acusación fiscal, que el acusado J. solicitara un préstamo de dinero a favor de su sociedad Inversiones Tres Mil S.A. En cuanto a la aprobación del crédito contamos con el Informe N° 451-DEF-454-04 el cual dispone "El crédito de Inversiones Tres Mil S.A fue aprobado únicamente por H. como Gerente General y E. como miembro directivo, por lo que no se siguió el procedimiento de cantidad de firmas establecido en el Banco Elca S.A en cuanto a la cantidad y cualidad de las firmas". Sobre este punto en particular, debe indicarse que tanto el señor G. como don E, cuando rindieron sus declaraciones, fueron enfáticos al señalar que ellos nunca aprobaron ese crédito y las firmas que preceden al respectivo documento no son de ellos. De lo que se ha expuesto e independientemente si don H. firmaron o no la aprobación del crédito a favor de Inversiones Tres Mil S.A, se concluye que el imputado J. no sólo no firmó la solicitud de préstamo sino que tampoco participó en su aprobación. Surge por otra parte la duda del por qué, entonces, el dinero producto de los créditos aprobados por C. . a favor de las sociedades Punta Palmira, Por Larrañaga, Bauza Casa Grande, Mobiliaria Activa 2008 y La Gloria Cubana, fueron finalmente acreditados en la cuenta del Banco Elca N° 122006481perteneciente a la sociedad Grupo Prisma Asem S.A. cuyo representante legal es J. La respuesta a ese cuestionamiento nos la brinda H. al decir que "J. fue tan tonto de prestar el nombre de sus empresas para ayudar a C. y se le giró cheques para cubrir algún sobregiro o algún problema." Otro aspecto que resalta el testigo cuando se le muestra el legajo de prueba N° 91 folios 148 y 149, es que dichos documentos firmados por él, están girados a nombre de J. y es uno de los casos en donde J. prestó sus empresas porque don C. necesitaba dinero. Textualmente indicó " A don J. no se le pagaba con cheques de Bosques de Ayarco, si se le giraba de esa cuenta es porque Don C. ocupaba el efectivo para algo". Estas afirmaciones responden al cuestionamiento del por qué, aún y cuando J. el 27 de febrero del 2004 no estaba en el país (ver movimientos migratorios y pasaporte del citado imputado) siempre se gira el dinero a favor de Inversiones Tres Mil S.A. Un aspecto que no debemos pasar por alto y que guarda relación con lo indicado, es el fin que persiguió C. cuando ordena depositar a favor de Inversiones Tres Mil S.A. la suma de ochocientos once mil ochocientos treinta y cinco dólares con sesenta y siete centavos ($811.835.67) en la cuenta del Grupo Prisma Asem S.A. Recuérdese que el crédito concedido a la sociedad Inversiones Tres Mil S.A. inicialmente estuvo garantizado con cuatro certificados de inversión de la Sociedad Inversiones Savinelli (en proceso de conciliación) y que en un momento determinado el imputado C. los redime anticipadamente, dejando así sin garantía el crédito de Inversiones Tres Mil. A partir de ahí es que, en forma "inteligente" o hábil, C. procura conseguir el dinero para cancelar ese crédito y qué mejor forma, que a través del otorgamiento de préstamos, cuyos dineros provenían de las arcas del Banco Elca, a cinco sociedades de su propiedad (ver tomo XI folios 4731 y siguientes, 4749 y siguientes, 4764), punto ya explicado en líneas atrás. A mayor comprensión valga retomar lo indicado por M. supervisor de la SUGEF que participó en el proceso de intervención del Banco Elca "Inversiones 3000 nace por reclasificaciones de varios deudores (punta Palmira, Bauza Casa grande y otros). Esas operaciones se constituyeron al amparo de cinco cheque se emiten a favor de esas sociedades pero el tesorero que laboraba para Elca que era J. decía a J. que esos cheques se habían sustituido por otros cheques y eso lo reveló la investigación y que eran por el mismo momento. Salieron hacia una cuenta a través del banco Interfin hacia Transamérica Bank que era el offshore de Interfin, regresan parcialmente al banco regresan a una cuenta del Grupo Prisma representada por J. y cancelan la operación de Inversiones 3000 que era de J. Dos de los cinco casos los cheques eran firmados por C.. En el informe 2520 se incluyen los cinco deudores y yo no participé en ese estudio pero si recuerdo haber visto en ese informe que los cinco se reclasificaron a categoría E". Es decir, hay prueba que determina que F. prestaba sus cuentas, que la firma que aparece sobre su nombre en la solicitud de crédito no fue hecha por él y quienes suscriben aprobando el crédito niegan que sean, también sus firmas. Al momento del desembolso del dinero F.y no estaba en el país por lo que hay visos de credibilidad para su declaración exculpatoria, como se abordará enseguida.” En suma, si se tratara, como dice el recurrente, de una simple operación bancaria, tendiente a prolongar la vida de un crédito que se arriesga en convertirse en incobrable, ciertamente la situación no tendría la gravedad que se le adjudica. Lo que sucede es que, contrario a lo expuesto por el defensor, la sucesión de créditos no se dio para tratar de paliar las consecuencias de una mala decisión, sino de una sustracción. En efecto, como lo autorizó dichos créditos encubridores, aparte de las circunstancias en que fue gestionado el crédito original a Inversiones Tres Mil, dejaban en claro que desde el inicio el endilgado se propuso, empleando esta sociedad de F.y E, posesionarse con ochocientos mil dólares que sabía que no serían cobrados, pues las garantías serían anticipadamente redimidas por A. y la cuenta sería saldada empleando otros créditos a cinco sociedades suyas que el mismo autorizó y que, como era de esperar, no tenían capacidad alguna de pago. Es decir, ese crédito que el defensor dice que fue concedido regularmente, luego resultó ser que, ni fue solicitado por F.y E. (quien para entonces no estaba en el país pero le prestaba sus empresas al endilgado para sus maniobras), ni tampoco aprobado por los demás funcionarios a quienes correspondía hacerlo (folio 17356). Al final de toda la argucia, A. había aprobado unilateralmente créditos por novecientos cinco mil dólares, que sí habían salido de las cuentas del Banco. Es por esos motivos que dichas actuaciones, junto a las relativas al señor L. se tuvieron por constitutivas de un delito de administración fraudulenta, en virtud del cual le fueron impuestos ocho años de prisión al endilgado. En cuanto a este, no sólo se presentan las mismas irregularidades en la concesión de los créditos que ficticiamente se otorgaron al señor B. quien no los había solicitado, sino que esos fondos concedidos fraudulentamente salieron del Banco. Al respecto, consigna el fallo: “En relación al crédito de L. se acusó y acreditó que el treinta de noviembre de 2001 el Comité de Crédito del Banco Elca S.A., aprobó el otorgamiento de la operación de crédito Nº 30009271 por ciento un mil ochocientos quince dólares norteamericanos con treinta y un centavos ($ 101.815.31) a su favor para cancelar tres operaciones anteriores que el mismo deudor tenía con el Banco Elca S.A. y que estaban morosas, cancelaciones que, efectivamente, se hicieron. Esa operación se garantizó con una garantía hipotecaria en segundo grado sobre la casa de habitación de B. la que soportaba, también, una hipoteca en primer grado a favor del Banco Interfin. Esta se ejecutó mediante proceso ejecutivo hipotecario, el diecinueve de junio de dos mil dos, adjudicándoselo el Banco Elca S.A. Sin embargo la operación de crédito Nº 30009271 no fue honrada por el señor B. registrándose un abono por quinientos setenta y dos dólares con setenta centavos ($572.70) en fecha once de diciembre de 2001 correspondiente al saldo restante de la misma operación luego de canceladas las operaciones morosas que dicho señor mantenía en el banco y una amortiguación por cinco mil trescientos cincuenta y un dólares con sesenta y cinco centavos ($5.351.65) el treinta y uno de mayo de dos mil dos (que se utilizó sólo para cancelar intereses de la operación 30009271). El dinero de la amortiguación se originó por medio de un crédito ficticio que aparece en el sistema electrónico del Banco Elca S.A. bajo el N° de operación 300010099 otorgado a Broitman Feinzeilber quien, como lo dijera en debate siendo creíble su dicho, nunca solicitó dicho financiamiento. De igual forma el treinta y uno de julio de dos mil dos, en los registros crediticios del Banco Elca S.A. se consignó el otorgamiento de la operación de crédito Nº 300010416 por ciento cincuenta y seis mil dólares “a favor” de L. con el fin de financiar el pago de la propiedad adquirida por el Banco Elca mediante la subasta señalada el diecinueve de junio. Dicho crédito fue constituido ficticiamente por cuanto no fue solicitado por dicho deudor. El treinta de octubre de dos mil dos las tres operaciones indicadas, por un monto total de doscientos setenta y cuatro mil cuatrocientos treinta y cuatro dólares con setenta y cuatro centavos ($274.434.74) sin justificación alguna, fueron liquidadas contablemente contra una “cuenta suspenso” N° 184-02-2-00-04 y, a partir de entonces, se inicia una serie de movimientos contables irregulares de este saldo. El veintiuno de noviembre del 2002 se constituyó otra operación de crédito ficticia, la N° 300011029 “a favor” de B. por $274.572.89, la cual fue aprobada por C. y J. (hechos sobre los que no es juzgado). A su vez esta operación, sea la N° 300011029 es cancelada el veintitrés de diciembre de 2002, por la operación de crédito 300011260 concedida en el Banco Elca S.A. a favor de la Sociedad Inversiones Santa Damiana S.A. sin que fuera posible determinar quién aprobó tal crédito. La sociedad Santa Damiana tiene como, presidente, representante y apoderado generalísimo sin límite de suma, al imputado C. La operación 300011260 se otorgó por un año con vencimiento el veintitrés de diciembre de 2003 pero fue prorrogada injustificadamente por C. por tres meses más a partir de su vencimiento y el treinta y uno de marzo de 2004, la vuelve a prorrogar por tres meses más bajo las mismas condiciones irregulares. A la fecha dicha operación se encuentra vencida y no existe posibilidad de proceder a su cobro ejecutivo por cuanto como “garantía”, sólo existe una fotocopia de una “letra de cambio” por doscientos ochenta y siete mil novecientos setenta y ocho dólares con veinticuatro centavos ($287.978.24), supuestamente suscrita y endosada por “la representante” (en esa fecha) de dicha sociedad, V, secretaria del Bufete Castro Garnier, y avalada presuntamente por el Lic. A, mismos que rechazan la legitimidad de tal documento. La única amortización que se registra en el histórico de pagos de éste crédito corresponde al abono realizado el veintiocho de julio de dos mil tres por un monto de ciento cincuenta y nueve mil novecientos noventa y dos dólares norteamericanos aplicado a capital ($141.657.37) e intereses ($18.334.63) de dicha deuda, quedando pendiente un saldo por pagar de ciento cuarenta y seis mil trescientos veinte dólares con ochenta y siete centavos ($146,320.87), que al cinco de enero del año dos mil cinco ascendía a la suma de ciento sesenta y dos mil ochocientos diecisiete dólares con veintiséis centavos ($162,817.26) correspondientes al saldo principal, más intereses y saldo por mora, que el acusado A. a la fecha no ha cancelado en perjuicio del Banco Elca S.A. IX.1.- Análisis probatorio: Durante los días que duró el contradictorio, se recibió suficiente prueba testimonial y documental que en definitiva viene a corroborar la hipótesis del Ministerio Público. Nuevamente se hace la observación de que muchos de los testigos que pasaremos a examinar ya han sido citados en otros considerandos al referirse a temas específicos. De lo Comité de Crédito del Banco Elca (ver legajo de prueba 34) le aprueba a L. la operación N° 30009271 por $101.815.31. Dicho préstamo lo utilizó para cancelar tres operaciones de crédito que tenía con el Banco Elca. La operación N° 30009271 no fue cancelada por el señor Broitman, únicamente se hicieron dos abonos, uno de ellos por amortización de intereses por $5.351.65; (ii) al 31 de julio del 2002 se habían constituido ficticiamente a nombre del señor B., las operaciones de crédito N° 300010099 y Nº 300010416; (iii) el 31 de octubre del 2002 la operación real y las dos ficticias, fueron liquidadas contablemente. Con el saldo de esas operaciones se constituyó ficticiamente la operación N° 300011029, misma que tampoco había solicitado don L. (iv) la operación de crédito N° 300011029 se cancela el 23 de diciembre del 2002 por medio de la operación N° 300011260 concedida por el Banco Elca a favor de la sociedad Santa Damiana S.A cuyo representante y apoderado generalísimo es C. Esa operación fue prorrogada dos veces por el mismo imputado y a la fecha no ha sido cancelada…. La prueba testimonial citada resume la maniobra efectuada por el imputado A. cuando procede a aprobar las operaciones de crédito N° 300010099, Nº 300010416 y Nº 300011029 que ficticiamente había solicitado el señor L, lo cual corrobora el mismo B. al decir que a partir del 2002 nunca más hizo solicitudes de crédito ante el Banco Elca. También se destaca cómo A. le otorga un crédito N° 300011260 a la sociedad Santa Damiana de su propiedad con el único fin de que cancelara las operaciones ficticias. No contento con ello, el imputado A. sin que mediara justificación y obviando todo procedimiento procedió a prorrogar dos veces el crédito de la citada sociedad, todo esto conllevó a que la SUGEF reclasificara ese crédito a categoría riesgo E, causándole un gran perjuicio al Banco Elca (ver tomo V folio 1705).” (folios 17365-17372). Entonces, como se comprobó en el fallo, a partir de que el Banco Elca se adjudicara la casa de B, cosa que zanjaba la deuda de este con el Banco o la convertía en marginal, A. “le” concedió un crédito de amortiguación por 5,351.65 dólares y otro por 156,000 dólares para financiar la propiedad adquirida por el Banco, los cuales nunca solicitó. Después, por un monto de 274,434.74 dólares, se otorgó otro que cancelaba la operación real y dos ficticias que salieron del Banco. Este a su vez fue liquidado contablemente por otra operación ficticia que encubría aquel fraude, consistente en otro crédito que falsamente se dijo que fue solicitado por B, esta vez por 274,572.89 dólares, Luego, esta fue cancelada por una operación de crédito por 287,978.24 dólares concedida por A. a la sociedad anónima Santa Damiana, perteneciente al acusado, la cual aportó una letra de cambio (cuyo original no fue hallado), suscrita por dos personas que rechazaron su legitimidad. Esa última operación, fue prorrogada injustificadamente por el justiciable en dos ocasiones por tres meses cada una, ratificando su participación en la trama delictiva. Al final, aplicados los pagos que registraba la cuenta, quedaban al descubierto 162,817.26 dólares del saldo principal. De tal suerte que, como se hace patente, no es cierto que la única salida de fondos se diera cuando se otorgó el préstamo al señor Broitman Feinzilber, sino que después de este se dieron desembolsos en una crecida de sustracciones que, por una parte, trataban de ocultar las irregularidades previas, y, por otro ahondaban en la defraudación de los bienes de la entidad bancaria. Sin lugar el motivo.

X.-En el décimo motivo se argumenta que es imposible ejecutar una administración fraudulenta contra sí mismo, pues el dueño del Banco Elca era el acusado A., que ejercía propiedad sobre esa entidad a través de una serie de sociedades también suyas. Para ratificarlo, el defensor acude a transcribir algunos apartes de la sentencia en que así se tuvo por cierto. Por tal situación, indica, los perjudicados por una administración fraudulenta son los accionistas de la compañía, que en este caso no existen, sino que es el propio enjuiciado. Tratándose de esos depósitos irregulares, en el que se da un traspaso de propiedad a favor de un banco, la legislación costarricense es parca. Debe tenerse en cuenta, añade, que en el caso que nos ocupa, el Tribunal consideró la situación de los ahorrantes e inversionistas que tenían depositados sus fondos en tal entidad. Este dinero, sin embargo, se incorpora a los activos del banco. A continuación hace el quejoso una disquisición sobre el carácter de los depósitos regulares y los irregulares, los cuales se caracterizan por el deber para del depositario, no de conservar la misma cosa (como en tratándose del regular), sino un tanto de la misma calidad y especie. Esto crea una “doble disponibilidad”, en la que por una parte el depositario se transforma en propietario del bien y el depositante puede retirarlo a su vez. Una consecuencia de ello, es que la pérdida de los bienes la sufre el depositario, quien actúa como dueño de los mismos. Por ende, al ser A. dueño del banco en cuestión, los bienes recibidos en depósito era de su propiedad y no podía administrarlos fraudulentamente en perjuicio propio. No es de recibo el reproche. La argumentación del recurrente parte de una falacia o mala comprensión de la figura que comenta; a saber, que al transformarse en dueño de los depósitos, el administrador depositario o que es dueño de la entidad que los recibe, puede disponer a su antojo de ellos, sin responsabilidad alguna. Para empezar, debe quedar claro que cuando se dice que en los depósitos irregulares el depositario se obliga a entregar una cantidad similar y de la misma calidad de los bienes recibidos, esto no significa que se transforme en dueño de los mismos, sino que sigue siendo un depositario. Lo que sucede, es que por el tipo de bienes que habitualmente se reciben en dichas negociaciones, estos no pueden ser preservados en su individualidad, sino que se confunden materialmente, NO jurídicamente (pues siguen perteneciendo al depositante), con el resto del acervo patrimonial disponible, sea que este se destine a la inversión, al préstamo o al simple atesoramiento. Pero, como es obvio, lo mismo sucede en todo “depósito regular” en que los bienes son fungibles, pues el que luego el depositario devuelva otros billetes que no son los mismos que le entregó previamente el depositante, no significa que en ese acto había pasado a ser dueño de estos. Entonces, el que pueda disponer como dueño de los bienes que le fueron entregados, no suprime ni mucho menos que sigue siendo su depositario y el depositante su titular. O sea, que los bienes le siguen siendo ajenos. En el caso que se discute el asunto es palpable. Si el sofisma desplegado en el motivo fuera acertado, ello implicaría que los bienes o valores recibidos por A. a través del Banco, pasaron a ser de su propiedad, como sostiene el impugnante. Esto es, que eran de él, lo cual es muy equivocado, porque es notorio que esa no fue la intención de los depositantes, quienes los entregaron con la esperanza y el compromiso del Banco de devolverlos oportunamente con una ganancia. Eso no sólo era conocido por los depositantes, sino una cuestión de sentido común; sobre todo para el acusado, quien sistemáticamente actuó para burlar esos compromisos. En una resolución precedente, a la cual aluden tanto el fallo venido en casación como el recurrente, este despacho señaló: “El artículo 222 del Código Penal, que sanciona la administración fraudulenta, establece un delito especial propio, ya que delimita el círculo posible de autores a aquella persona que “por cualquier razón, teniendo a su cargo el manejo, la administración o el cuido de bienes ajenos, perjudicare a su titular alterando en sus cuentas los precios o condiciones de los contratos, suponiendo operaciones o gastos o exagerando los que hubiere hecho, ocultando o reteniendo valores o empleándolos abusiva o indebidamente”. Es un delito especial propio porque no puede cometerlo -como autor- cualquier individuo, sino solo aquel que maneje, administre o cuide bienes ajenos y realice alguna de las conductas tipificadas. El fundamento de esta particular punición obedece a que el sujeto activo asume tareas o funciones sobre un patrimonio que le es parcial o totalmente ajeno y, por tanto, pesan sobre él una serie de deberes jurídicos que infringe con su actuar. También toma en cuenta el legislador la existencia de un vínculo que apareja la confianza depositada en el agente por el sujeto pasivo, que espera lealtad y corrección en el manejo de sus bienes, derechos y expectativas patrimoniales. En resumen, alegan los defensores N y R. que los acusados no ejercían funciones de administración del patrimonio de los ahorristas e inversionistas, sino que se comprometían ante ellos como deudores de una obligación; y que los fondos, una vez ingresados en el Banco Germano Centroamericano, pasaban a ser patrimonio exclusivo de este y podían ser destinados a diversos usos. Sobre este tema, es prudente hacer algunas reflexiones. La actividad bancaria, tanto en Costa Rica como en las demás naciones, se halla estrictamente regulada a fin de asegurar el sano desarrollo económico del país y, entre otros motivos que no interesa aquí profundizar, porque se desarrolla en esencia a partir del capital ajeno y no de aquel que corresponde a los dueños o accionistas del banco: “La referida actividad se realiza con capital ajeno o predominantemente ajeno. El origen de éste proviene básicamente del público (depositantes o ahorristas) con el que se gestiona una intermediación financiera. Así se captan fondos pagando una tasa de interés para prestarla a otra mayor y lucrar con las diferencias entre ambas. Su característica determinante resulta de la ajenidad de los fondos prestables y objeto de la intermediación financiera. Esa intermediación no utiliza ni arriesga un capital ‘propio’ (como sucede en otras actividades) sino uno de origen colectivo, definitivamente finito, cuantificable, único en el país y no sustituible.”. (PORCELLI, Luis A., “Entidades financieras privadas. Funcionalidad e historia de su regulación”, en Crisis. Liquidación y quiebra de bancos. Responsabilidad, Ediciones Jurídicas Cuyo, Buenos Aires, 2001, p. 347-348). Estas distinciones no deben perderse de vista, pues de lo contrario es fácil incurrir en error al apreciar la naturaleza de las funciones que cumplen las entidades bancarias. Ellas trabajan siempre con el capital o el patrimonio ajeno y ese carácter de ajenidad no desaparece en ningún momento ni puede confundirse con el capital aportado por los socios o accionistas de la empresa (el cual, desde luego, también puede ser objeto de fraudulenta administración). En la especie, tanto el Germano International Bank como el Banco Germano Centroamericano captaron recursos del público, a través de distintos medios: depósitos en cuentas de ahorro o corrientes; comisiones de confianza, fondos FOPEX y FODEIN y dineros que debían cancelarse al Banco Central por la compra de divisas o a los acreedores del cliente en el exterior. Los contratos de depósito de ahorros y en cuenta corriente han sido clasificados por la doctrina dentro del concepto de “depósito irregular” pues, contrario a lo que ocurre en el regular, se permite al depositario hacer uso de los bienes. Se descarta, entonces, que constituyan un contrato de mutuo o arrendamiento de dinero (ver DÍAZ RAMÍREZ, Enrique, Contratos bancarios, Temis, Bogotá, 1993, p. 92), lo cual sí significaría un desplazamiento del patrimonio. Que las sumas depositadas en cuentas corrientes o de ahorro mantienen su carácter de ajenidad en nuestro medio (es decir: pertenecen a quien las depositó), resulta evidente de las disposiciones contenidas en los artículos 529, 612, 617, 630 y 631 del Código de Comercio y el capítulo V, Título III de la Ley Orgánica del Sistema Bancario Nacional, No. 1644 de 26 de setiembre de 1953 y sus reformas; pues aunque se permite al banco cierto uso discrecional de los fondos -sin embargo: con diversas restricciones-, el depositante sigue siendo dueño de los dineros, le pueden ser embargados o inmovilizados por orden judicial y constituyen parte activa de su patrimonio y no una “cuenta por cobrar”. De allí que el artículo 3 de la citada ley No. 1644 define la función de los bancos en esta materia como la de “custodiar y administrar los depósitos bancarios de la colectividad”; definición que, en realidad, aunque no estuviese en la ley, se extraería de las demás normas que antes fueron citadas y a fin de cuentas solo sirve para describir un fenómeno.” (ver voto 231, de las 8:45 horas del 9 de abril del 2003). De modo que, aparte de la afectación a la confianza pública, a las finanzas en el mercado nacional y a otras repercusiones humanas, sí hubo una infracción de un deber jurídico hacia los depositantes, quienes aun admitiendo la tesis de la “doble disponibilidad”, no pudieron disponer de sus bienes o valores; incluso si su perfil se redujera a un mero derecho de crédito, que igual se habría visto burlado. Por cierto, también en este último caso, en que ese derecho de restitución se vería disminuido a un derecho de crédito, no puede pasarse por alto que la realización del mismo está supeditada a la buena administración de los bienes o valores entregados, por lo que tampoco dentro de tal tesis el administrador no puede comportarse respecto a ellos como si fuera “su propietario”, porque ello socavaría la efectividad del crédito; pero, más importante aún, es que el entendido de las partes es que los bienes siguen siendo parte del patrimonio del depositante. De ahí que la susodicha jurisprudencia ya emitida por esta Sala al respecto, la cual el litigante intenta sostener que no aplica en este asunto, debe reiterarse y considerarse aplicable.

XI.- A continuación, como reclamo de fondo, se señala que el fallo aplicó erróneamente en el delito de administración fraudulenta la circunstancia agravante de la estafa. Además, dice, no se tomaron en cuenta “…integralmente las circunstancias personales del señor A, por ejemplo, su edad, el hecho de que tiene tres hijos jóvenes que requieren la presencia de su padre, su capacidad profesional y su importancia como miembro activo de la sociedad, su trayectoria exitosa previa al período 2002-2004…”, al igual que tres operaciones que se le atribuyen (las de inversiones Tres Mil, la relativa a B. y a Kiona San Francisco) no causaron erogación al Banco, así como los demás extremos del artículo 71 del Código Penal. No es de recibo el reparo. Al fijar el ámbito o márgenes de la sanción, el artículo 222 del Código Penal se remite, sin excepciones, al artículo 216 del mismo. Es decir, la pena de la estafa (artículo 216) se aplica, sin modificación o discriminación alguna a la administración fraudulenta. Esto incluye, inobjetablemente, también las agravantes contenidas en el párrafo final del citado artículo 216, respecto al cual el legislador no hizo distinción alguna, por lo que no cabe hacerla en la vía judicial. Por consiguiente, no hay ninguna irregularidad, sino que es plenamente correcto que, si concurrían las hipótesis agravatorias allí consignadas, también estas se aplicaran tratándose de la administración fraudulenta en que incurrió el imputado A.. Por otra parte, al fijar la pena correspondiente a estos ilícitos, el a quo expuso: “Para efectos de la pena a imponer debemos remitirnos al considerando VIII.1, para indicar que en este caso también estamos en presencia del delito de Administración Fraudulenta. Si bien es cierto, en aquella oportunidad los hechos se dieron entre el 25 y 26 de febrero del 2004 -aprobación de los créditos a favor de las sociedades del imputado Punta palmira, Bauza Casa Grande, Por Larrañaga, La Gloria Cubana y Mobiliaria Dos Mil Ocho- y los hechos concernientes al considerando IX se enmarcan entre los meses de mayo a diciembre del 2002 y enero a marzo del 2003, en realidad se trata de un único delito de Administración Fraudulenta de mayor cuantía. Según la jurisprudencia estamos ante un mismo patrimonio ajeno, en este caso confiado al Presidente y dueño del banco Elca S.A, quien tenía la administración de los recursos invertidos en esa entidad bancaria por los diversos clientes e inversionistas, que con su actuación, como es la de aprobar prórrogas de créditos otorgados a sociedades pertenecientes a su persona, causó un gran perjuicio. En el caso de Inversiones Santa Damiana al aprobarse las prórrogas en forma injustificada, al 05 de enero del 2005 y de acuerdo a los estudios realizados, presentaba un saldo ciento sesenta y dos mil ochocientos diecisiete dólares con veintiséis centavos, dinero que en definitiva no se ha cancelado, perjudicando así el patrimonio del banco Elca y el de sus acreedores, amén de que la misma no puede ser exigida por cuanto carece de garantía que la respalde. Por todo ello, la pena global impuesta es la de ocho años de prisión que tiene en cuenta los distintos momentos en que se manifestó la unidad de acción citada (cinco créditos a favor de sociedades de A, esta operación y crédito a favor de Inversiones Kiona) por lo que no se justifica una pena menor al ser muy grande el perjuicio causado. El Tribunal toma en consideración para fijar la pena en los extremos establecidos, lo siguiente: la circunstancia de la gravedad de la lesividad ocasionada por el endilgado, quien se aprovecha de su posición jerárquica en el banco Elca para prorrogar unilateralmente e injustificadamente, sin observar los respectivos procedimientos la operación de crédito de Inversiones Santa Damiana, sociedad de su propiedad, operación que, como ya se ha indicado, carece de garantía que la respalde pues lo único que existe es una copia de una letra de cambio cuyas firmas se cuestionaron. Aspectos todos que considerados en su conjunto llevan al Tribunal a imponer la pena dichas, por estimar que es la que se ajusta a la proporcionalidad que debe haber entre la misma y la afectación al bien jurídico en juego y demás circunstancias demostradas, en relación con la posibilidad de lograr la rehabilitación del encartado tantas veces referida.” (folios 17379-17380). Frente a esas circunstancias, el tema de la edad o salud del acusado (que como se dijo antes, pueden ser valorados en la etapa de ejecución de sentencia) o la necesidad que tienen sus hijos (lo mismo que los de cualquier otro padre o madre privados de libertad), tienen importancia relativa. Finalmente, su papel en sociedad y su trayectoria exitosa, serían más bien elementos que aumentarían su reprochabilidad, tanto porque hacían aun menos necesario que incurriera en estos hechos para agenciarse una vida cómoda para él y su familia, como porque más bien se valió de estos antecedentes personales para engañara a sus víctimas. En lo tocante a las tres operaciones en las que, según dice el motivo, no se generó erogación alguna al Banco, ese es un argumento que ya fue desacreditado, mostrando que sí hubo tal erogación. Para concluir, como reiteradamente lo ha dicho la jurisprudencia nacional, los diversos parámetros contenidos en el artículo 71 del Código Penal para fijar la sanción, deben ser ponderados en cuanto son atinentes al caso; pues, si no lo son, carecen de relevancia y vuelven ese ejercicio en un mero rito. En el presente asunto, con la excepción que se dijo, el recurrente omite indicar cuáles son los aspectos que dejaron de valorarse y en qué habrían cambiado la pena impuesta, haciendo que el motivo no muestre interés procesal.

XII.-En lo que corresponde a los estados financieros en los que A. entregó, según dice la sentencia, información falsa a la SUGEF, reclama el defensor que tales estados financieros no fueron incorporados como prueba al debate. Se dice en ese fallo, que estos se hallan en un disco compacto en archivo, pero no fueron presentados al debate ni mostrados. En segundo término, añade que no se dice cuáles índices alteró el endilgado, ni cuáles datos o informes fueron los falsos. En tercer lugar, dice que calificar como “ficticios” o “fraudulentos” ciertos actos, es calumnioso y se hizo antes de exponer los hechos; cuarto, que no se demostró que la forma en que se financiaron los créditos back to back fuera ilícita. En quinto lugar, dice el quejoso que la aparente irregularidad de las actuaciones del endilgado proviene de no haber cumplido las condiciones que la SUGEF le impuso para desarrollar esas operaciones back to back: que se cumpliera las operaciones legales relacionadas (lo cual se hizo, porque es algo permitido en Costa Rica); que se respetara el principio de conocer al cliente (que se basa en normas que previenen el lavado de dinero, cosa que no se acusa aquí); y, que los fondos provinieran de una fuente externa al Banco (lo que no encuentra sustento en ninguna ley). Por consiguiente, ninguna infracción se cometió. No es atendible el reproche. Para empezar, los estados financieros que el recurrente echa de menos, sí estaban disponibles en el proceso, sin que fuera necesario el acto ritual de exhibir el disco compacto que los contiene para satisfacer el deber procesal de ponerlos a disposición de las partes o que estas pudieran confrontarlos. En casos como esos, lo mismo que en cuanto a la prueba documental, basta precisar en qué pieza se encuentra la información y dónde se encuentra esta, quedando a criterio de cada parte el acudir a revisar el documento o archivo. Si en el debate tenía tal preocupación, debió haberla planteado al a quo, para que este le diera el disco en mención, a fin de que corroborara su contenido. Es más, ello todavía es posible. Pero, el que no fuera abierto o exhibido materialmente ese disco, no quiere decir que la información de los estados contables fuera ideada o ilegalmente incorporada al acervo probatorio. En lo que se refiere a la alegada falta de explicación por parte del a quo de cuáles fueron los índices que se alteraron y cuyos datos fueron falsos, está equivocado el defensor. Ello está explícitamente establecido en el fallo. Así, a folios 17417-17418, se dice: “…realizadas esas operaciones y consignadas en los registros contables del banco, se procedió a la elaboración de los informes de fin de mes, sea con cierre al treinta y uno de mayo de dos mil cuatro, mismos que al día siguiente, sea el primero de junio de dos mil cuatro, A. hizo llegar a la SUGEF, y así lo advierte el informe Nº 50-DEF-506-04/05 de folios 3746 a 3750 del tomo IX, señalando que "El 1 de junio del 2004 el Banco Elca remitió el oficio PE-017-04, en el cual se adjunta el "Plan de Ajustes Complementario al Plan Estratégico", en donde se informa sobre el incremento de la cartera de créditos mediante la concesión de estos créditos "back to back"" (cfr. folio 3748 fte.); por lo que observados tales documentos (cfr. folios 10109 a 10122 del tomo XIX del principal, en el apartado legajo de prueba Nº 83) se denota no sólo que la misiva PE-017-04 está firmada por el propio A. en su condición de Presidente Ejecutivo de Banco Elca S.A. (cfr. folio 10110 fte.) sino que en dicho Plan Estratégico efectivamente se advierte: "Conjuntamente con este proyecto, estamos remitiendo los Estados Financieros proyectados, con el efecto en los mismos de: a) la constitución de las provisiones adicionales, b) los nuevos créditos otorgados, y c) el cronograma de pago de aportes patrimoniales. En estas proyecciones se muestra igualmente la viabilidad de esta propuesta y sus efectos en la situación financiera del banco, particularmente el que tendrá en los indicadores de solvencia y calidad de los activos." (cfr. folio 10119 fte.) y, aunado a lo anterior, entre otros, se acompañó: "En medio magnético, Los Estados Financieros proyectados con inclusión de los indicadores financieros" (mismo folio). Los cuales se encuentran en disco compacto en archivo. Es decir, el endilgado A. consumó el fin que se había propuesto, y que estatuye la norma violentada, sea entregar a la SUGEF toda aquella información financiera persiguiendo advertir una posición financiera saludable, cuando lo cierto era que toda ella estaba fundada en aquel movimiento ficticio por veintitrés millones ochocientos mil dólares ($23.800.000,00) de activos y pasivos, y con una supuesta ganancia por un millón de dólares ($1.000.000,00) a título de comisiones generadas.” Queda claro entonces que en sentencia sí se dijo cuáles fueron los datos falsificados en los índices y en qué sentido lo fueron. Por otra parte, el tópico de si ciertas expresiones que el defensor estima precipitadas por ser previas al razonamiento probatorio del fallo, ya fue resuelto páginas atrás. Y, la cuestión de si los fondos empleados en las operaciones back to back eran de origen lícito o no, es irrelevante en cuanto al delito que se discute, que consiste en haber provisto de datos e informes falsos a la SUGEF, con el ánimo de ocultar la verdadera situación financiera del Banco Elca. En cuanto al punto final, debe decirse que las condiciones que exigió la Superintendencia General de Entidades Financieras (en adelante SUGEF) como requisitos para ejecutar sanamente las transacciones back to back, pueden responder a diversos motivos, algunos de los cuales no están siendo discutidos en estas líneas. No obstante, hay varias consideraciones que hacer al respecto. Una es que justamente al banco Elca se le estaban imponiendo tales cualidades en esas operaciones, en vista de su situación precaria y sospechosa, por lo que la SUGEF estaba procediendo con más celo en lo que le concernía. Luego, es indudable que con su actividad, esa supervisión intenta garantizar la estabilidad del mercado financiero nacional y su confiabilidad, la cual estaba minando A. y su banco, con el resultado final ya conocido. Tres, a A. no se le está sancionando al respecto, ni por desobediencia, ni por una simple infracción bancaria (como dice el defensor), sino por haber consignado información falsa en los informes a ese órgano de control, lesionando seriamente no sólo la confianza pública en el mercado financiero nacional, sino impidiendo que con mayor anticipación la SUGEF tomara medidas precautorias inmediatas para reducir el daño particular y social que se estaba derivando del manejo irresponsable que llevó a la quiebra del Banco.

XIII.-En el décimo tercer motivo, alega el defensor que no se puede hacer una interpretación ampliativa del tipo penal que contiene el inciso b) del artículo 158 de la Ley Orgánica del Sistema Bancario Nacional, el cual sanciona la entrega de informes o datos falsos que tiendan a ocultar la verdadera situación financiera de una entidad bancaria. En consecuencia, si A. lo que entregó fue un “plan” y no un informe, sobre un estado financiero proyectado y no datos actuales, amén de que no se le podía ocultar a la SUGEF la vulnerabilidad de la cartera de crédito del Banco, lo que ya sabía, la conducta del endilgado pudo haber constituido una falta administrativa, mas no un delito. No lleva razón el recurrente. Se llamara “plan”, “proyección”, “reporte” o simplemente “documento”, el memorial remitido por A. a la SUGEF, como se vio arriba, contenía información (por eso es un informe) de las transacciones cuya realización se estaba pidiendo autorizar, incluyendo: “a) la constitución de las provisiones adicionales, b) los nuevos créditos otorgados, y c) el cronograma de pago de aportes patrimoniales”, y afirmando que: “en estas proyecciones se muestra igualmente la viabilidad de esta propuesta y sus efectos en la situación financiera del banco, particularmente el que tendrá en los indicadores de solvencia y calidad de los activos." Entonces, no era simplemente que estaban haciendo pronósticos o augurios ociosos o sin fundamento de los réditos de tales transacciones que proponían, sino que a partir de los datos aportados (que luego se revelaron falsos), se estimaba en dicho informe que se iba a obtener un fortalecimiento de las endebles condiciones en que se encontraba el Banco. Estas, aunque eran de conocimiento de la SUGEF, no incluían, sobra decirlo, que los datos de las operaciones que pedían autorizar eran falsos, es decir que las perspectivas de mejora y viabilidad que por esa vía mostraba el Banco, también eran falsos, lo cual redundaba en que se le estuviera ocultando a las autoridades la verdad en ese aspecto esencial. Por eso es que, a diferencia de lo que en beneficio de su cliente esgrime el gestionante, no estima la Sala que la conducta de este se adecuara a una pura falta administrativa, sino que está categóricamente demostrado que era una acción criminal.

XIV.-Como penúltimo reproche, indica el defensor que, pese a que se acordó por parte del juez del procedimiento intermedio la cesura del debate, a fin de que la fijación de la pena tuviera una fase exclusiva, ello no se realizó, pues el Tribunal estimó que la defensa no había ofrecido pruebas sobre tal necesidad. Reclama entonces que ello afectó los derechos de su cliente, quien podía “…verse gravemente maltratado si el tema de la fijación de la pena no es objeto de la atención debida”. No es de recibo el alegato. Para empezar, porque como lo reconoce el propio petente, cuando se dio esa decisión, la defensa estuvo conforme con la misma y no la impugnó. En segundo lugar, porque aunque así hubiera sido, el recurrente no demuestra el interés procesal de que el debate se realizara en las argüidas dos fases. Comentar que eso permite prestar mayor atención al juicio de reprochabilidad, o que el enjuiciado puede verse maltratado si no se le presta la debida atención, no comprueba que en este caso efectivamente sucediera. Esto es, no demuestra el agravio que cree que se produjo, sino que alega en abstracto y no respecto al caso concreto. En este, por el contrario, como ya en cada uno de los segmentos lo ha establecido esta resolución, se observa un manejo cuidadoso del a quo a la hora de fijar la sanción y una actitud amplia de sopesar los diversos factores relevantes. Sin lugar el motivo.

XV.- El último alegato interpuesto por el defensor, se refiere la gravedad de la pena que le fue impuesta. Documenta su queja con los datos del informe de Desarrollo Humano del año 2005, el cual apunta que la vida media en Costa Rica (se supone que para los varones) es de 78.2 años. Si A. cuenta con cincuenta años y le fueron impuestos veintitrés de privación de libertad como pena, eso implicaría que dos tercios de los años que le restan de vida (o más, en vista de las duras condiciones de la reclusión), los pasaría en prisión. Esos años, probablemente serían los más productivos de su vida, dice el recurrente. Todo esto en menoscabo de la función rehabilitadora de la pena. Con ello, sostiene, violentó derechos elementales de su cliente, lo que se evidencia en el trato que le confirió el a quo al referirse a él y en enfatizar en sus aspectos desfavorables. Por eso, afirma, lo conducente es unificar las penas o reducir cada una de ellas, de forma que el total no resulte tan elevado. No es atendible el motivo. En primer lugar, el tema de si por la forma de redactar o de acusado, ya fue decidido anteriormente. En segundo término, en el presente caso se está ante una sumatoria de las penas impuestas por cada uno de los cuatro delitos cometidos por A.. De forma que lo procedente no es cuestionar la suma de las mismas (visto que no se aplicó el triple de la mayor sino la suma, que le resultaba mejor al encausado), sino más bien cada una de las penas, como en efecto se hizo en este recurso y fue oportunamente declarado sin lugar en los segmentos respectivos, al estimarse que cada una de las sanciones estaba correctamente fijada. De hecho, en ningún caso se le impuso penas que se acercaran al máximo, sino que la estafa y la administración fraudulenta fueron levemente superiores a la mitad; en el uso de información privilegiada se le impuso el mínimo; y, en el suministro de información bancaria falsa, se le fijó un año más que el mínimo y dos menos que el máximo. Entonces, no se puede aseverar que hayan sido penas degradantes o crueles. Ahora bien, una pretendida unificación no es posible, porque esta solo es viable si se trata de un concurso ideal, cosa descartada en esta causa al no tratarse de una única acción, o de un concurso material, en cuyo caso se le podría imponer el triple de la pena mayor. Sin embargo, en tal caso le resulta más desfavorable que la sumatoria practicada, pues mientras que esta arrojó un total de veintitrés años de prisión, la pena unificada del concurso por la regla del triple de la mayor, sería de veinticuatro. Finalmente, debe subrayarse que es cierto que la pena tiene la finalidad de la rehabilitación, pero el margen necesario para esta, se halla establecido por el legislador dentro de los mínimos y máximos sancionatorios; por lo que no se puede decir que, por ejemplo en un delito gravísimo, tratándose de una persona mayor, por quedarle poco tiempo de vida, la sanción debe incluso ser menor que el mínimo. Hay que respetar tales márgenes y adecuar la sanción dentro de los parámetros que postula el artículo 71 del Código Penal, que ordena mirar no sólo a las circunstancias personales del partícipe como su edad, sino también a los motivos que tuvo, a las posibilidades de adecuar su conducta conforme a Derecho, al daño generado a la cantidad de ofendidos y a su proceder posterior a los acontecimientos, renglones estos en los que, como ya largamente se ha XVI.- Debe concluir la solución de este recurso haciendo alusión a la prueba documental ofrecida en el mismo y consistente en el documento visible a folio 17564, en que se dice que el porcentaje de devolución de sus valores a los acreedores legalizados, es de un 74%, lo que comprueba, dice el defensor, que el imputado no fue ningún “saqueador”. En realidad, ese documento no aporta ningún elemento que haga cambiar las conclusiones del fallo que fue impugnado. En primer término, porque ello se referiría únicamente al delito de administración fraudulenta. No al delito de estafa en daño de Night Glow sociedad anónima, cuyo crédito no formaba parte de los pasivos del Banco Elca, ni al uso de información privilegiada, ni al suministro de información bancaria falsa, que tampoco tienen que ver con el nivel de recuperación de los acreedores. Por otra parte, en lo que estrictamente a la administración fraudulenta se refiere, el que haya un 74% de recuperación, no suprime los manejos dolosamente irregulares ya ampliamente descritos, los cuales redundaron en detrimento de los ahorrantes, aunque estos hayan recuperado tres cuartas partes de sus valores. Y, para terminar, no puede alegremente afirmarse que ese es el margen total de recuperación, dado que el propio certificado dice que es sobre los créditos legalizados, existiendo otros cuya legalización todavía está siendo discutida en vía judicial, por lo que se desconoce cuál será el grado final de recuperación de la masa acreedora. Sin lugar el recurso.

XVII.-El codefensor Juan Carlos Sbravatti Montoya, por su parte, alega en el primer motivo de su libelo impugnaticio, que el Tribunal dejó de lado la demostración de quién es el socio propietario de las sociedades anónimas Night Glow y Montañas Mágicas del Sur, pues la legislación mercantil establece las formas en que ello se acredita. “…el Tribunal de Juicio debe tener certeza que quien (sic) es el socio, para lo cual no basta con ampararse en el estribillo o frase rutinaria y de uso cotidiano como lo es ‘…que en materia penal rige el principio de libertad probatoria (artículo 182 del Código Procesal Penal)’”. De ninguna manera es atendible el reparo. Una norma de ley no es un “estribillo”, ni es una “frase rutinaria”, sino una prescripción que el legislador ha instituido para que se obedezca. En este asunto, para que sea aplicada en el proceso penal. Así que, si como lo aseveró el a quo, el susodicho principio permite que, como ya se ha dicho en estas páginas, los hechos o circunstancias relevantes puedan ser probados por cualquier medio lícitamente obtenido, también lo puede ser la titularidad de las acciones de tales sociedades, para lo cual se contó con los testimonios de los señores G. y H, así como de abogado R, quienes como ya se dijo antes, dieron fe de quién es el propietario de esas sociedades. Por consiguiente, sí hubo pruebas aptas para tener por cierto que el accionante dueño de ellas sociedades es el señor M.

XVIII.- El segundo reparo consiste en que, según el petente, la querella no cuenta con una imputación de hechos concretos, pues el acusado tiene derecho a conocer de qué se le acusa, siendo una contradicción afirmar que la querella no es “emulable” en su redacción, pero que permite saber cuáles son los hechos endilgados. No es de recibo el reparo. Para empezar, no es cierto que entre esas dos últimas aseveraciones del a quo, haya contradicción. Algo puede estar mal redactado o de un modo que no es el mejor, y sin embargo quedar en claro, como sucede en el presente caso. De suerte que no se da la contradicción que el defensor acusa. Segundo, aparte de lo anterior, deber tomarse en cuenta que los hechos de referencia eran de conocimiento de las partes, pues además habían sido expuestos en la acusación fiscal, lo que dirimía cualquier dubitación que se tuviera. Como si eso no bastara, debe recordarse aquí que ese no fue un defecto alegado por la defensa, sino que en esta fase viene a reclamarlo sin que atine a señalar un aspecto concreto en el que, como producto de la confusión que censura, las cosas no fueran intelegibles y ello imposibilitara la defensa, o bien por qué eran ambiguas o a qué confusión daban pie, como dice que sucedió. Por último, tampoco se ha demostrado que A. fuera sancionado por un hecho acusado ambiguo o vago, sino que lo fue de conformidad con los que estaban delimitados en las piezas acusatorias.

XIX.-Como tercer alegato, se dice que fueron excluidos como pruebas útiles los documentos emanados por la Junta Liquidatoria del Banco Elca, sobre transacciones sostenidas con Inversiones Tres Mil y Grupo Prisma Asem, ambas sociedades anónimas y representadas por J. Dichas probanzas eran importantes para demostrar la participación de este en los hechos investigados. No obstante, esos documentos fueron excluidos por no haber sido solicitados por el interesado ni haber sido dispuesto judicialmente el levantamiento del secreto bancario al respecto. “…el Banco Elca S.A. es un banco declarado en Quiebra (sic) mediante una resolución judicial, consecuentemente sujeto a un proceso de quiebra. No analiza el distinguido Tribunal, que bajo esa condición legal, Banco Elca S.A., carece de Licencia Bancaria…” De seguido aporta algunas normas de la Ley Orgánica del Banco Central, ninguna de las cuales tiene relación directa con el punto que se discute, salvo la 133, en que se establece el deber de discreción y manejo restringido de la información. No resulta atendible el reproche. Esa última norma que se cita, más bien viene a reforzar lo sostenido por el a quo; a saber, la obligación de los involucrados en las transacciones bancarias de no revelar información relativa a los interesados. De modo que sí existe ese deber genérico, denominado “secreto bancario”, a fin de que no trascienda, salvo orden judicial en contrario, esa información a personas ajenas a la transacción. El hecho de que el Banco Elca fuera declarado en quiebra, no significa una exención de ese deber o secreto bancario, pues lo que se protege es la información relativa a las personas involucradas en esas transacciones, las cuales todavía tienen derecho a que aquella no se difunda, aun y cuando el Banco haya sido declarado en quiebra. No hay duda, de que tales informaciones llegaron a ese banco justamente a raíz de su giro comercial, al igual que tampoco la hay de que, sea con esa entidad en quiebra o no, tales clientes tienen derecho a que se tutele el acceso restringido a su información. Siendo así, correctamente procedió el Tribunal al excluir los documentos aludidos, ya que estos, al no haber sido solicitados por el derechohabiente ni ordenados judicialmente, infringían ese deber de reserva e incluso la norma misma que aduce el quejoso.

XX.- Como cuarto y quinto motivos, dice el defensor que los documentos provenientes de Bahamas sobre la cuenta corriente de la sociedad anónima Bosques de Ayarco en el Transamerica Bank and Trust, no contaron con las autenticaciones del caso ni fueron trasladados siguiendo la cadena de custodia. Señala que esto limitó la defensa de su representado, sin que sea válido decir que al haber hecho uso de dicha prueba, la defensa había saneado cualquier defecto que contuviera. No lleva razón el impugnante. Ciertamente el argumento de que, al haber hecho uso de ellas los interesados sanearon los defectos de la prueba, no es válido, pues implicaría que, por ilegítima que fuera, al ser usada por la contraparte, una prueba adquiere legitimidad. Sin embargo, ese no es el razonamiento del a quo. Este se preocupó más bien por las repercusiones de los defectos en el trámite y traslado de esas probanzas, concluyendo que ni en un caso ni en otro tenían relevancia alguna. En lo concerniente señaló: “Por ende, llevaría razón la defensa en su planteamiento inicial (no así en lo relativo al secreto bancario pues es la normativa del estado receptor quien debe determinar si existe o no, se levanta o no, etc. sin que le quepa al juez nacional decidirlo y esas normas extranjeras deben ser probadas), más al haber hecho uso de la prueba, convalidó los errores formales y le otorgó validez a ella, de modo que ello conduce al rechazo de la gestión. En cuanto a la cadena de custodia de la evidencia no se argumenta ningún agravio específico con ella. Consta que el órgano competente de Bahamas envió directamente la documentación a la Fiscalía nacional y la prueba es fácilmente reproducible ante nueva solicitud, de modo que el alegato nuevamente conduce a dar culto a las formas por si mismas consideradas. No obstante lo anterior, hay que advertir que aún si se le diera completa razón a la defensa y se suprimieran hipotéticamente todos esos documentos, ello en nada afectaría las conclusiones a las que ha arribado este tribunal y relativas, como se indicará en adelante, a la responsabilidad penal de C. en el delito de estafa en perjuicio de Night Glow S.A. pues ese legajo de prueba Nº 91 (y su respectiva traducción en folios 14958 a 15087 del tomo XXV) lo único que permite colegir es el destino final de parte de los fondos recibidos por C., sin que ello sea necesario pues al haberse acreditado que él los recibió y obtuvo de esa forma un beneficio patrimonial antijurídico (como se analizará en su oportunidad), poco importa cuál fue la ruta que siguió el dinero pues esa sola recepción, el depósito en cuentas personales, la no acreditación a favor de la entidad ofendida en cuentas del Grupo Elca (como lo indicaran los interventores en los documentos de folios 9814 a 9816 del tomo XIX y las autoridades de Belice en los documentos de folios 35 a 40 del legajo de querella de Cori Consulting and Financial Services S.A. al calificar de dudosa legalidad los certificados emitidos con fecha anterior a la autorizada para que ese banco operara y captara) y la no devolución de los dineros al ser requeridos, determina que existió tanto el perjuicio como el beneficio patrimonial indebido, como requisitos del tipo objetivo: "...el único destino lícito -no antijurídico- que pudo darse a los bienes era el que imponían las leyes o los contratos suscritos entre los bancos y sus clientes; cualquier otro destino que no derive de ninguna de esas fuentes normativas, es intrínsecamente y por definición, indebido. Dicho en otras palabras y a guisa de ejemplo, el uso final que puede darse, con apego a derecho, a dineros ahorrados es el de reintegrarlos al ahorrista (obligación surgida del contrato y de la ley), o trasladarlos a un tercero en casos excepcionales o bien retenerlos (v. gr.: por embargo o inmovilización judicialmente decretados). Así, la tesis de que se desconoce el paradero de los fondos es por completo inútil para evidenciar o sugerir algún destino lícito (el hecho mismo de que se desconozca dónde están atenta ya contra el derecho) y más bien demuestra, sin ningún género de duda, que se consumó un perjuicio patrimonial injusto como contrapartida de un beneficio económico indebido." Sala Tercera, voto Nº 231-2003 (el destacado es del original). Además, existe la fuente independiente que es la misma declaración de H. que refirió -antes de que se le mostrara ese legajo- que el dinero fue depositado en la cuenta de Bosques de Ayarco, sociedad que pertenecía a C. y que se usaba para pagar sobregiros del mismo A, declaración que cuenta con el apoyo de los informes del OIJ que se pronuncian al respecto también antes de recibirse el citado legajo. Ergo, aún cuando se suprimiera hipotéticamente la totalidad del legajo de prueba Nº 91 y su respectiva traducción (que no tiene por qué darse al haber existido convalidación de los vicios formales no absolutos y fuente independiente de esa información), las conclusiones sobre la responsabilidad penal de C. en el delito de estafa en perjuicio de Night Glow S.A. permanecen incólumes, como se ahondará en el acápite respectivo (considerando V).” (folios 17047-17049). Por ende, al no haberse concretado cuál fue el agravio efectivamente sufrido por el manejo que se le dio a esas pruebas, o que estas fueran adulteradas o devaluadas a raíz de ello, el tema de la inobservancia de la cadena de custodia se desvanece. En tal sentido, la jurisprudencia nacional ha sido reiterativa al indicar que no basta la simple alegación de que no se observó la cadena de custodia, para que el motivo sea acogible. Se precisa demostrar que se dio alguna irregularidad y que esta repercutió en la calidad de la prueba o su contenido, sea deteriorándola o adulterándola. Así, incluso si hubiera alguna anomalía, esta no tendría interés procesal si, como en este asunto, no se logra determinar esas consecuencias, siendo a lo sumo una infracción administrativa, pero sin interés procesal para la solución de la causa. No obstante, lo verdaderamente importante es que, como dijo el a quo, prescindiendo hipotéticamente de los citados documentos, las conclusiones incriminatorias contra A. se mantienen firmes, pues esas piezas probaban cuestiones de escaso interés, como el manejo de las cuentas bancarias del sospechoso, mientras que las circunstancias relevantes que demostraban, lo fueron también por múltiples fuentes independientes de aquellas. Sin lugar los motivos.

XXI.- En el siguiente motivo, el defensor entra a cuestionar casi la totalidad de la prueba testimonial relevante recabada en el debate, descalificando a unos testigos por unas razones y a otros por otras. A su juicio, en resumen, todos los testigos son sospechosos de estar faltando a la verdad y de ocultar algo. Para empezar, critica que se diera fe a las declaraciones de J, J, M, H y M, pues quedó demostrada su participación en los hechos sucedidos y su conocimiento del campo bancario. Luego, descalifica a G, R, F. y J, por su relación con el señor M. Finalmente, hace lo mismo con el señor Á. y la señora V, por ser personas que están acostumbradas a relacionarse con abogados, por lo que no es verosímil que actuaran inocentemente en estos hechos. Los alegatos no son de recibo. Debe comenzarse diciendo que no es cierto que el Tribunal no exponga en su razonamiento probatorio por qué da fe a cada uno de esos declarantes y, en general, al elenco probatorio. Hacer aquí una enumeración de los diversos aspectos que el a quo tuvo por demostrados basándose en tales probanzas, es ocioso. Pero el recurrente y las personas interesadas pueden comprobar que, en cada hecho importante, se dice en qué pruebas se basa cada hecho demostrados y la explicación del porqué. Sugerir, indiscriminadamente que todos los testigos son sospechosos, o que el único que dijo la verdad es el acusado y los demás comparecientes (por diversas razones) están conjurados contra él, es excesivo y falto de todo sustento. De forma que, aunque es cierto que dos de ellos participaron con algún nivel de responsabilidad en los acontecimientos (F.y E. y G, quienes conciliaron por esos actos), de los demás no hay resquicio alguno de duda que arroje sombra sobre sus testimonios. A como tampoco es atendible el comentario de que por tener relación profesional con alguien o muchos años de algo. Antes bien, como ya largamente se explicó páginas atrás, esas probanzas resultan internamente consistentes y acordes al contexto, confirmándose mutuamente y con las piezas documentales allegadas al proceso. Si es que el recurrente estima que alguno de ellos incurrió en un ilícito, puede proceder a denunciarlo, dando los elementos del caso. Pero, mientras no existan tales elementos, sino presunciones de oportunidad, en la que la urgencia por demeritar los abrumadores factores incriminantes para su cliente puede empujar a este tipo de estrategias, esa argumentación no es acogible. A menos que ello se pueda demostrar, y en este asunto ni siquiera se ha intentado, tales afirmaciones son precipitadas. Sin lugar el reparo.

XXII.- En el séptimo motivo de forma, reclama el quejoso la incorporación ilegal de prueba documental, consistente en la querella de Cori Consulting and Financial, sociedad anónima. Esta, dice el codefensor, se refiere a hechos que están siendo juzgados en otra sede y no fue puesta en conocimiento de las partes. Por otra parte, el Tribunal no valoró la prueba de folios 17164 a 17185, sino que solamente la cita. Nuevamente debe rechazarse el motivo por falta de interés procesal. Como ya se advirtió arriba, no basta la mera enunciación de una falta o irregularidad (si es que existe) para estimar que ello es un defecto de la sentencia o que incluso este lleve a su nulidad. Es requisito para ello que se demuestre que la falta en cuestión (si existe) ha repercutido en la sentencia y que el contenido relevante de esta no puede subsistir con ese defecto. No obstante, si como en este asunto, el reclamo es que se tomó en cuenta prueba de una querella de otro proceso (para lo cual, por cierto, no hay ningún impedimento, por el principio de libertad probatoria ya explicado), o que esta no fue puesta en conocimiento de las partes, o bien que solamente se cita en el fallo esa prueba, sin bastantearla, es preciso demostrar el agravio procesal. Esto es, cuál fue la lesión específica que se alega como ocasionada. Por ende, acotar por qué esa prueba fue importante, en qué hubieran cambiado las cosas sin ella o si las partes la hubieran tenido al acceso, o en qué era apreciable la necesidad de que se valorara explícitamente toda la prueba enumerada. Pero, el recurrente se limita a recriminar que se incorporara cierta prueba, sin mencionar siquiera su contenido y aun menos su importancia. Al igual que tampoco explica por qué considera que alguno de los documentos enlistado por el a quo en el conjunto de la prueba de ese tipo, dejó de ser ponderado y su trascendencia. De hecho, reclama que no se valorara todos los documentos, sin explicar por qué era importante hacerlo con alguno en específico o cuál de ellos le resultaba de interés y por qué. Por lo demás, la Sala debe certificar que la prueba ponderada por el a quo es la importante, sin que se pueda notar que alguna pieza de relevancia quedó sin ser examinada, cosa que como se dijo, el recurrente ni siquiera intenta demostrar.

XXIII.- En el primer motivo de fondo, reclama el defensor que no se pudo demostrar la existencia de ardid en los sucesos relacionados con el señor G, pues no se demostró que el banco en Belice no existiera, sino que consta un contrato de alquiler para ubicar el mismo, que hubo funcionarios del Banco Elca que fueron allá para diferentes tareas, que los certificados de inversión entregados por J. acreditaban su existencia efectiva, y que no hubo vicio en el consentimiento de los contratantes, amén de que el convenio suscrito en Guatemala contenía una cláusula arbitral que les imponía dirimir sus controversias en esa vía. No es aceptable el motivo. Debe empezar diciéndose que el recurso de fondo está previsto para comprobar la correcta aplicación de la ley sustantiva a una especie fáctica determinada. Esto no es viable si, para favorecer la impugnación, se entra a desconocer el cuadro de hechos contenido en el fallo, pues se vuelve inexacta la premisa fáctica del análisis. Esto puede suceder incluyendo aspectos que no se tuvieron por demostrados o, como en este asunto, negando otros que sí lo fueron, cual sucede con la existencia de un ardid y un perjuicio patrimonial. Por esa situación, el examen que solicita el defensor no es atendible. De cualquier modo, vale comentar que todos esos aspectos fueron examinados y resueltos en el considerando V de esta resolución, en el que se dijo que no es cierto que el Banco estuviera habilitado a trabajar en Belice al momento de darse el engaño en detrimento del señor G. Con posterioridad fue autorizado, pero ello fue mucho después de consumado el delito, en el que A. lo hizo caer en error, ofreciéndole inversiones en un banco que no operaba entonces, y destinando los tres millones de dólares que aquel le dio, para otros fines personales. por lo que debe estarse a lo allí dispuesto. Ahí estaba el vicio de la voluntad. Si luego esa parte estuvo dispuesta a suscribir un acuerdo en la ciudad de Guatemala para tratar de arreglar las cosas, fue como se dijo para tratar de rescatar algo. O, como dijo el señor R. “del ahogado, el sombrero”. No porque no hubieran sido engañados, pues tanto las propuestas del endilgado, la existencia de una oficina en la ciudad de Belice y hasta de unos certificados de inversión, formaban parte de la misma puesta en escena defraudatoria. Para terminar, el hecho de que hubiera una cláusula arbitral, no implica ni mucho menos que todas las controversias de las partes deban dilucidarse por esa vía, pues está prevista para contenciones patrimoniales, no criminales, como es la que nos ocupa, las cuales deben ser resueltas por los tribunales penales competentes.

XXIV.- A continuación, como segundo motivo de fondo, esta vez en lo referente a la administración fraudulenta, vuelve el defensor a intentar desacreditar los testigos cuyas declaraciones comprometieron la responsabilidad penal de A.. Asimismo, insiste en que no se comprobó que su defendido fuera el autor de esos hechos, ni tampoco el monto de perjuicio generado al Banco. Sin lugar el reparo. Como se ve, nuevamente incurre el defensor en el error de formulación ya indicado en el considerando precedente, al negar en su alegato de fondo los hechos que se tuvieron por ciertos, según consta en los hechos probados 28 a 69 (folios 17192 a 17204). En lo tocante a la descalificación de los testigos que pretende hacer, debe estarse a lo ya dispuesto en el considerando XXI, en el que se le explicó que la simple sospecha no es razón para desechar el testimonio de un declarante, máxime si (como en este asunto) tales testigos resultaron convincentes y concordantes entre sí y con relación al resto de la prueba de cargo, que es comparativamente apabullante respecto a la de descargo, que se reveló como ligera e insustancial. Para terminar, el tema de los montos que alcanzaron los hechos efectuados por A. y constitutivos de la administración fraudulenta, fueron expuestos en los considerandos VII, VIII y IX de esta resolución, remitiéndose en lo pertinente a la sentencia del a quo. Por ende, sí está demostrado al menos el perjuicio mínimo sufrido (en el proceso de liquidación, aún no se han precisado la totalidad de las cuentas del Banco), el cual inobjetablemente hace que las acciones configuren una administración fraudulenta mayor. Sin lugar el reparo.

XXV.-A continuación, se alega la mala aplicación de una norma de fondo, recurriendo a alterar los hechos demostrados, el codefensor indica que “…A. no podía ni tenía medio para conocer que el Banco Elca sería intervenido un día después de la redención de la familia H… Todo el esfuerzo intelectivo que hacen los jueces del Tribunal resulta inútil por cuanto no logran demostrar el conocimiento real que le endilgan a A., para sustituirlo por una presunción…” Finaliza diciendo que el acusado no enajenó ningún título, sino que esa transacción representó un ingreso para el Banco, del que no se comprobó que tuviera problemas de liquidez. No es de recibo el agravio. Aparte de los defectos de formulación ya apuntados, el gestionante omite tener en cuenta que efectivamente ese egreso de fondos se había operado cuando A. autorizó irregularmente un crédito para la sociedad anónima Kiona de San Francisco, el cual pretendía ocultar con el dinero de la redención anticipada de los certificados provenientes de los hermanos H. Luego, que había problemas de liquidez en ese momento, se lo dijo él mismo a esos clientes, de modo que es una situación de la cual sí hubo prueba. Finalmente, información privilegiada no era sólo tener conocimiento de la fecha en que es probable que el Banco fuera intervenido por la SUGEF. También lo era el conocimiento de la situación endeble de Kiona de San Francisco, la condición crítica del Banco Elca, de la debacle en la cartera de crédito y de las maniobras abusivas y delictivas que se habían ejecutado para dar largas a los problemas, agravando los mismos. De todas esas situaciones estaba al tanto A., quien utilizó esa misma información para continuar con su actuar irregular. También esto fue extensamente expuesto en el considerando VII, con sustento en el bagaje probatorio articulado por el a quo. Fue así como, lejos de ser un “ingreso” para el Banco, como dice el defensor, A. lo que intentaba era encubrir el egreso que irregularmente había autorizado, y “…la manera más fácil de obtenerlo fue adquiriendo los certificados de inversión de la familia Herrero pues, de otra forma, no tenía dinero para hacerlo.” XXVI.- En el cuarto motivo de fondo, se dice que en cuanto a los créditos back to back, la sentencia omite valorar los argumentos de la defensa y no señala el bien jurídico tutelado, sin que la SUGEF pueda ser uno, pues forma parte del Banco Central de Costa Rica. Dice que ese órgano no puede ser tenido como ofendido y que el a quo no dijo en qué consistió la puesta en peligro que configura el delito. No lleva razón el quejoso. En su reclamo, no dice ese defensor cuáles son los argumentos de la defensa que la sentencia dejó de valorar, ni tampoco su importancia, sino que se limita a apuntar en general esa pretendida omisión, sin demostrar el interés procesal de su insatisfacción. En segundo término, debe aclarársele que, cuando se habla de un bien jurídico, no se hace alusión a su portador o a la entidad que lo encarna (el individuo o persona jurídica específico), sino al interés protegido jurídicamente. Así, el bien jurídico del homicidio no es una u otra persona, sino que este se plasma en ellas: la vida. De tal forma que discutir si la SUGEF es una entidad autónoma o forma parte del Banco Central de Costa Rica, no sólo carece de toda importancia, sino que pasa por alto considerar que lo que se está tutelando no es la entidad en sí misma, sino lo que esta resguarda (la confiabilidad del mercado financiero nacional) y en general de los documentos emanados de las instituciones bancarias; pero, sobre todo, como es obvio, que se protege el patrimonio de quienes habían confiado en esa entidad bancaria. Por consiguiente, el ofendido, como dice el fallo, es el sistema bancario nacional, que vio parcialmente desmerecida su credibilidad por las acciones del justiciable, y en particular los ahorrantes o inversionistas que confiaron en el Banco fallido. Para finalizar, debe decirse que la sentencia sí consigna establece: “…se ha vulnerado efectivamente el bien jurídico tutelado por la norma que no es otro que la protección a los ahorrantes, aunado a que su conducta contradice el ordenamiento jurídico como un todo, y puso en peligro la estabilidad del sistema financiero costarricense, al vulnerar la confianza pública en el sistema financiero nacional, bien jurídico también reconocido y tutelado por nuestra legislación; lo que implica, necesariamente, el respeto a los bienes que el público ahorrante confía a las instituciones financieras que captan el ahorro público y, por ende la deferencia de éstas con la supervisión de que deben ser objeto. De tal suerte que no se trata, como lo señaló la defensa de A., de la protección de bienes jurídicos abstractos o indebidos, sino cimentados en la especial tutela al público ahorrante y al sistema financiero. Tal y como lo dijo el Superintendente General de Entidades Financieras O: "Se ocultaba la verdadera situación financiera. Se mejoraba situación patrimonial de la entidad (...) Si hubiera seguido funcionando el público hubiera perdido sus negocios"; lo que ciertamente de haber logrado su propósito el encartado A. se hubiera dado con mayores perjuicios para inversionistas y ahorrantes. Además esa confianza pública se deposita en las personas a quienes se les ha depositado la administración de los bienes, en este caso banqueros como C. quienes han de tener lealtad y cuidado para la protección de esos bienes jurídicos para su protección, lo que se vulnera cuando se suministra información falsa ocultando la verdadera situación financiera de la institución a la entidad supervisora, encargada por ley, no sólo de la supervisión sino de avalar la prestación del servicio. Allí el peligro al bien jurídico ya no era abstracto -que, en todo caso, no es inconstitucional como lo ha indicado la Sala Constitucional- sino concreto, desde que esa actuación del imputado pretendía ocultar otras irregularidades que ya se venían arrastrando.” (folios 17425-17426). Expuesto así, queda nítido cuáles fueron los bienes jurídicos tutelados, cuál fue el ataque que estos sufrieron y la forma en que ello sucedió. Sin lugar el recurso.

XXVII.- Por su parte, el encartado A. formuló casación, alegando en primer término que los fondos del Banco Elca no le eran ajenos, sino propios, pues al tratarse de depósitos irregulares, él asumía respecto a estos el carácter de propietario, por lo que no podía configurarse una administración fraudulenta. Para sostener su alegato, recurre a la cita de varios autores y a decir que el precedente dictado por la Sala al respecto, fue diferente, pues en aquel caso no había “depósitos irregulares” sino “comisiones de confianza”. No es de recibo el reproche. Ya el tema fue discutido y resuelto en el décimo considerando de esta resolución, por lo que debe estarse a lo allí dispuesto. En todo caso, conviene explicarle al quejoso que, el que el artículo 116 de la Ley Orgánica del Banco Central prescriba que la intermediación financiera se hace “por cuenta y riesgo del intermediario”, de ninguna manera significa que este se vuelva propietario de los fondos que se le confían. Aun más, esto se evidencia en quiénes se ven afectados ante el fracaso, el cual no se concentra sólo en el intermediario; cosa que comprueba que los depositantes mantienen un papel preponderante, que como se dijo no es simplemente un derecho crediticio, sino que pierden sus bienes. Tanto es así que, cuando las cosas no se manejan bien, el riesgo no lo corre sólo el depositario, sino los depositantes, e incluso en muchos casos (como el presente) el intermediario no es el que asume ese riesgo, sino que lo extiende a los ahorrantes y son estos (y no aquel) quienes sufren las consecuencias de los hechos, sin que el intermediario asuma la responsabilidad financiera que le compete. Luego, debe corregirse la lectura errónea que del artículo 528 (relacionado con el 524 y el 529) del Código de Comercio hace el gestionante. Cuando esa norma señala que: “En los depósitos de cosas fungibles el depositante podrá convenir en que le restituyan cosas de la misma especie y calidad. En este caso, sin que cesen las obligaciones del depositante, el depositario asumirá el carácter de propietario para los efectos de las pérdidas, daños y menoscabos que puedan sufrir las cosas depositadas” (el subrayado es suplido), es obvio que se está refiriendo a los avatares o veleidades que puedan acaecer a tales bienes o valores, que al estar en custodia o administración para su uso, deben ser garantizados en su incolumidad y solidez, por lo que en caso de pérdida o deterioro, la pérdida no la enfrenta el depositante, sino el depositario. Pero, a contrario sensu, para todos los demás efectos, el depositante no adquiere el carácter de propietario, como equivocadamente dice el recurrente, pues únicamente está autorizado para su uso, mas no adquiere la propiedad de los mismos. Sin lugar el reparo.

XXVIII.- En el segundo motivo, se afirma que el Tribunal aplicó erróneamente el tipo penal de administración fraudulenta, toda vez que hay normativa que resulta más específica que esta a la materia bancaria. “…la intención del legislador fue crear un fuero normativo específico regulatorio para este tipo de actividades desarrolladas por los bancos públicos y privados, porque sencillamente estas instituciones difieren en su propia naturaleza y en los fines que se persiguen de cualquier otra actividad comercial convencional…” Con remisión a la jurisprudencia de esta Sala en materia de narcotráfico, asegura que las acciones achacadas al imputado son configurativas de la conducta delictiva descrita en el artículo 159 de la Ley Orgánica del Banco Central, en relación al artículo 241 del Código Penal, y no una administración fraudulenta. Aquel impone una pena de prisión para los directores, administradores, gerentes o apoderados de una entidad sujeta a fiscalización de la SUGEF que incurran en las acciones previstas en el artículo 241 del Código Penal, o sea que preste su concurso o consentimiento para que se efectúen actos contrario a los estatutos o la ley, de lo cual pueda derivar perjuicio para su representada o el público. En apoyo de su gestión, el endilgado se remite a algunos trazos del fallo recurrido, en los que se dice que autorizó indebidamente créditos o manipuló los mismos a favor de sus sociedades. Insiste en que, al contener la Ley Orgánica del Banco Central normativa específica para ese tipo de entidades y sus personeros, la responsabilidad de estos estará cubierta por esas normas y no otras. Desde otro ángulo, reprocha el justiciable que no se le aplicara el artículo 239 del Código Penal, en vez del delito de estafa, porque aquel reprime a quien ofrezca al público bonos, acciones u obligaciones “…disimulando u ocultando hechos o circunstancias verdaderas o afirmando o haciendo entrever hechos o circunstancias falsas…”, describiendo así las acciones que se le atribuyeron a él como ejecutadas en detrimento de la sociedad anónima Night Glow. No es atendible el reparo. Hay una diferencia fundamental que el encausado no está haciendo: los tipos penales contenidos en los artículos 239 y 241 del Código Penal tutelan la buena fe en los negocios. En este asunto, no sólo estamos ante una infracción a ese bien jurídico, sino ante un daño patrimonial, que aquellos no cubren. Por eso, desde el inicio mismo, debe descartarse que se esté ante normas que regulan los mismos actos. Es decir, debe descartarse que se esté ante un caso de concurso aparente de normas por consunción del disvalor. Pero, para explicar más paulatinamente el asunto, es oportuno recapitular acá las nociones básicas de un concurso aparente de normas. Este, como es sabido, se da cuando dos o más preceptos concurren a regular una acción, pero se excluyen entre sí. En tales casos, según reza el artículo 23 del Código Penal, la regla especial prevalece sobre la general, la que contiene íntegramente a otra sobre la contenida, y la que la ley ha establecido como dominante lo hace sobre las subordinadas. En consecuencia, antes de entrar a discutir cómo se resuelve este asunto, a fin de determinar si es que hay un tipo penal especial o uno que contiene el desvalor del otro, o cuya aplicación se haya supeditado a que no se aplique otra, debe definirse para el primer argumento (esto es, la autorización de actos indebidos versus la administración fraudulenta) si es que ambos artículos, amén de constituir delitos en sí mismos, se refieren a la comisión de otros actos delictivos a su vez. La respuesta es negativa y ello ahorra, una vez más, tener que ahondar en el tema del concurso aparente. Esto resulta innecesario sencillamente porque las dos normas citadas aluden a situaciones diferentes. Hay otras características que es menester acotar aparte de las características determinantes de los intereses tutelados a que se hizo referencia arriba; es decir que ni el artículo 239 ni el 241 del Código Penal reprimen el daño patrimonial, cosa que sí hacen los artículos 216 y 222 de esa misma ley, por lo que resultan ser los que mejor describen la especie fáctica comprobada. Así, mientras que la administración fraudulenta se refiere a una actividad compuesta por hechos delictivos por sí mismos, la autorización de actos indebidos se refiere a hechos que no son delictivos; esto es, la autorización de actos indebidos consiste en prestar su consentimiento o concurso para que se efectúen actos contrarios a la ley o estatutos, pero que no sean delictivos, pues en tal caso no se aplicaría el tipo penal del 241 del Código Penal, sino la figura delictiva correspondiente. O, para ponerlo de otro modo, el tipo penal del artículo 241 es subsidiario, se aplica si es que esos hechos no están sancionados por otra norma especializada, resultando que esta es la que califica como delictivos los actos que componen la actividad sancionada, a diferencia de los meros “actos indebidos” que es una calificación genérica de ilicitud en daño de la buena fe en los negocios. Es decir, que además no contempla la posibilidad de un daño patrimonial, sino la mera realización de los actos indebidos, siendo esta una circunstancia más que lo diferencia de la administración fraudulenta. Eso mismo excluye que se pueda hablar o pensar en la posibilidad de una suerte de delito de pasaje entre una conducta y la otra, puesto que como es conocido, el delito de pasaje es la afectación progresiva a un mismo bien jurídico, lo cual se excluye en este caso, en el que los bienes jurídicos comprometidos son diferentes: el patrimonio en los delitos de defraudación y la buena fe en los negocios contra la confianza pública, o sea que sancionan en ese orden cosas diversas como son el daño al patrimonio y el perjuicio a la confianza pública, respectivamente. Por ende, no es cierto que dichas normas concursen aparentemente entre sí. Adicionalmente hay otra diferencia, la cual consiste en que el artículo 241 del Código Penal el administrador o gerente “presta su concurso o consentimiento”, es decir cohonesta hechos ajenos, no los realiza por sí mismo. En tales casos (así como en aquellos en los que sea aplicable la comisión por omisión por estarse en la posición de garante), el delito aplicable será el que corresponda, mas no el genérico autorización de actos indebidos, el cual está previsto para los hechos por otros sujetos. En el presente asunto, es obvio en consecuencia, que el tipo penal aplicable era efectivamente el de administración fraudulenta, tanto porque la autoría de las acciones no fue de otros sujetos, sino que A., quien no prestó su concurso o consentimiento, sino que efectuó él mismo los actos irregulares, así como porque esos actos irregulares no eran simplemente “indebidos”, sino delictivos y que aparte de un daño a la buena fe en los negocios, repercutieron en un daño patrimonial para los ofendidos. En cuanto a las acciones cometidas en perjuicio del señor G. y su sociedad Night Glow, debe decirse que nuevamente confunde el recurrente la taxonomía de ambas normas. El ofrecimiento fraudulento de títulos de crédito no cubre la causación de un daño patrimonial, sino que es un delito (al igual que el previsto en el artículo 241) contra la confianza pública. Así que basta el mero ofrecimiento de esos bonos, acciones u obligaciones, para que se tenga por configurado el delito, aun cuando nadie los hubiera adquirido o se hubiera visto afectado al verse inducido a engaño. Cuando ello sucede, los acontecimientos trascienden al plano de los delitos contra el patrimonio y son susceptibles, ya no sólo de ser perseguidos como ofrecimiento fraudulento de efectos de crédito (cosa que, por cierto, en este caso se pasó por alto debatir), sino también como estafa, pues amén de una lesión a la buena fe en los negocios, lo es también al patrimonio de los agraviados, desvalor este que no está ni descrito ni contenido en el citado artículo 239. De ahí que, al igual que en lo concerniente al tópico de la autorización de actos indebidos, no se esté, como dice el recurrente, ante un concurso aparente de delitos, sino de dos normas que no se excluyen entre sí ni protegen los mismos intereses, pues se puede hacer un ofrecimiento fraudulento y afectar así la buena fe en los negocios, sin generar un daño patrimonial, o al revés, lo que corrobora que no son normas que se refieren a la misma especie fáctica ni una contiene el desvalor de la otra.

XXIX.- En el tercer motivo de fondo, se asevera que en la especie no se cumplieron los componentes objetivos del tipo penal de uso de información privilegiada, pues la información que no tiene la capacidad de influir en el precio de los valores emitidos, no se considera como privilegiada. En el presente asunto, las redenciones efectuadas por anticipado lo fueron por su precio nominal, sin que se obtuviera ningún beneficio adicional. Lo que se intenta prohibir, dice el petente, es que se altere la especulación normal de la bolsa, a través del manejo que posibilita saber qué puede o no suceder. Siendo que la transacción con los hermanos H. aconteció fuera de la bolsa, no estaría cubierta por ese artículo ni los de la Ley Reguladora del Mercado de Valores, que en sus numerales 101 y 102 hablan del “mercado de valores”. No lleva razón el impugnante. El mercado de valores no es únicamente la bolsa, al igual que el “mercado” en general no es un lugar específico. Es una actividad. En ese sentido, qué duda cabe que el Banco Elca, al igual que muchos otros operadores, actuaba en el mercado de valores, aun cuando muchas de esas transacciones no tuvieran lugar en la bolsa. Por ende, sí se aplica a estos hechos las susodichas hipótesis que vedan el uso de información privilegiada. Por otra parte, que la información de que disponía el acusado era privilegiada, surge a las claras no sólo del razonamiento del a quo, sino de la propia transcripción que hace el acusado en su recurso, cuando se afirma que “La información privilegiada ha de ser tal que de hacerse públicamente influiría en los precios (price sensitive information). De ahí que no toda información no pública pueda ser considerada información privilegiada” (López Barja, Curso…, p. 347). Entonces, de la misma cita textual hecha por el recurrente se confirma que esa información sí era privilegiada. ¿O es que acaso el valor de los certificados que negoció con los hermanos H. hubiera llegado a sus manos de no ser porque ocultó información sobre las condiciones del crédito y de las acciones que la sociedad anónima Kiona de San Francisco? ¿O que la deuda que esa sociedad sostenía con el Banco Elca procedía de un crédito irregularmente concedido y con una garantía cuestionable? Irrefutablemente, si los inversionistas hubieran sabido la situación crediticia y accionaria de tal sociedad, no habrían entregado los certificados aludidos a A, pues tanto la deuda de esa sociedad al mismo tiempo que su lote accionario habría tenido un valor muy inferior al que aparentaban, a como al mismo tiempo disimulaba la poca confiabilidad que tenía para ese momento el Banco Elca, cuyos certificados se seguían negociando en el mercado de valores, ignorando la magnitud del problema (que incluía una inminente intervención del Banco) y, de paso, sosteniendo ficticiamente un precio que ya no les correspondía en virtud de tales vicisitudes. En lo atinente, conviene tener presente lo que estableció el a quo, texto este que ya fue referido en las páginas anteriores, pero que vale traer nuevamente a colación. “Cabe destacar que, conforme a los informes de la SUGEF, esa operación denotaba un alto riesgo porque, de acuerdo al análisis de capacidad de pago, esta sociedad quedó con un endeudamiento de un 80% y sólo podía pagar intereses y no el principal. Entiéndase, entonces, la preocupación de C. por cancelar ese crédito a como diera lugar y la oportunidad surgió cuando los hermanos H. aceptaron el cambio de sus certificados de inversión por ese crédito, creyendo en que no habrían problemas porque se trataba de un crédito "sano". Dice M. “Le insisto y lo que me dijo era que cambiáramos las inversiones por créditos sanos en otras empresas, me ofrece un crédito de Inversiones Kiona por cuatrocientos cincuenta mil dólares y tenía como garantía el 66% las acciones de FINANCORP puesto de bolsa y Financorp, me dio balances del mes anterior, los estudié, los balances reflejaban información muy agradable". Vemos entonces, cómo el imputado aún sabiendo que el crédito a Inversiones Kiona presentaba problemas y teniendo conocimiento de la situación anormal por la que atravesaba el banco, aún así se lo ofreció a los hermanos H, haciéndoles creer que todo estaba bien, reflejándose la realidad de las cosas cuando al día siguiente de esa negociación, el banco Elca fue intervenido afectándose, asimismo el puesto de bolsa Financorp, siendo que esta familia sólo ha recibido de la sociedad deudora un abono principal de cincuenta y cinco mil dólares ($55.000.00) más los intereses correspondientes al primer mes. Está muy claro para el tribunal, que el imputado C. con toda la intención de obtener un provecho para sí mismo, abusando de su cargo como dueño y presidente del banco Elca y sabiendo de antemano que “su” banco estaba en problemas, porque tenía información que la misma la SUGEF le había hecho llegar, engaña a M. diciéndole que el crédito de inversiones Kiona era “sano”, y una vez que entra en poder de los respectivos certificados de inversión, los redime para cancelar así el crédito nada sano que le había otorgado a esa sociedad.” Para terminar, los temas de si la redención anticipada de los certificados pertenecientes a los hermanos H. representó un egreso o un ingreso para el Banco y si constituyó o no una adquisición en los términos de ese artículo 245 del Código Penal, o si medió o no un beneficio indebido para sí o para un tercero, ya fueron tratados en el considerando VII, por lo que debe estarse a lo allí resuelto, siendo algo que además la sentencia tiene por demostrado, por lo que no es permisible ponerlo nuevamente en cuestión en el examen de fondo que se solicita.

XXX.- En el primer motivo de forma, alega el recurrente que el a quo violentó las reglas de la sana crítica, al tener por inexistentes las transacciones back to back, resultando que “…desde un punto de vista contable y desde un punto de vista material…” estas fueron reales, concretas y generaron recursos al Banco. Dice que ese tipo de operaciones fueron autorizadas por la SUGEF, la cual constató que había habido ingresos por un millón de dólares como fruto de ellas y que si fueron reversadas fue por simples dudas de sus funcionarios. Para apoyar su tesis, se aporta como prueba un “Informe de los Auditores Independientes. Estados Financieros Auditados. Al 31 de diciembre de 2007”, de la firma CGS-CPA y Consultores S.A., que confirma la existencia de ese dinero. Posteriormente, se transcribe algunos extractos del fallo, para contradecir la conclusión del Tribunal acerca de que esas operaciones no generaron ganancias, haciendo depender estas del cumplimiento de las formalidades para la concesión de los créditos. Tampoco es relevante, dice, que el dinero original proviniera de la Corporación Elca, porque era una empresa con capital propio y distinto de aquel del Banco. Pero, lo cierto es que tales operaciones sí se efectuaron y los interventores acreditaron esos fondos a la citada corporación. No lleva razón el imputado. El tema de si esas operaciones back to back tuvieron existencia efectiva, ya fue zanjado parcialmente en el decimosegundo considerando de esta resolución, por lo cual se remite a las partes a lo allí consignado. En lo que toca a lo no discutido en ese apartado y que el recurrente formula en sus alegaciones, amerita decir lo siguiente. En primer término, el que los fondos tuvieran o no un determinado origen, como dice él, es irrelevante. Lo importante es que fue una incorporación meramente contable de algunos que provenían de Corporación Elca, que no sólo no constituía en nada “dinero fresco” que fortalecía la endeble cartera de crédito del Banco Elca, sino que sólo entraron nominalmente. Sin embargo, llama la atención a esta Sala que se pretenda engañar, al igual que se hizo con la SUGEF, a los Tribunales de Justicia, diciendo que esos fondos iniciales de la cadena back to back, los cuales ascendieron a 1.240.000 dólares provenían de la Corporación Elca, cuando lo cierto es que de esa corporación sólo se tomó una suma ligeramente superior a 850 dólares (folio 17405). De ahí que, el que esos fondos de la Corporación Elca fueran reales, carece de importancia, si es que eran una parte imperceptible del total de los que supuestamente se iban a invertir en los back to back. El resto provenía de la redención anticipada y fraudulenta que, de los mismos certificados del Banco, el recurrente había ordenado, como fueron los cancelados con dos cheques de 118.503,18 dólares y 206.930.896,97 dólares, correspondiente a certificados que pertenecían a los señores J y W, y una línea de crédito aprobada por el propio A. a favor de Kiona de San Francisco por el monto de 450.000 dólares (folios 17403-17404), los cuales trasladó a la Corporación Elca y de allí al Banco; pero, de ninguna manera eso implicaba que provinieran de este, sino que sólo contablemente habían pasado por sus arcas. “Es decir, puede establecerse cómo el dinero base necesario para operar el mecanismo de los créditos back to back nunca provino de fuentes externas y, por consiguiente, no constituyó dinero fresco, como se afirmó por parte de la defensa de A.. Con ese dinero, y no con otro, se procede a ejecutar las veinte operaciones de crédito back to back, aumentando así ficticiamente la cartera de crédito y los índices de ingreso por comisiones que el Banco Elca S.A. debía reportar a la SUGEF. Como lo refirieron el testigo A: "eran una serie de operaciones con veinte empresas que generaron una serie de operaciones que generaron un millón de dólares por comisiones y se registraron como un ingreso por comisiones, posteriormente ese millón de dólares termina en la cuenta de corporación Elca (...) los "back to back" inician porque Banco Elca recibe cheques de unas cuentas corrientes girados de Banca Promérica, allí se generan como cuatrocientos cincuenta mil dólares, se da la instrucción que se deposite en diferentes cuentas de Banco Elca, posteriormente de ingresados esos dineros se genera un crédito, con los quinientos mil dólares de Banca Promérica y cuatrocientos cincuenta mil dólares de cuentas de Banco Elca, y se genera un crédito a Inversiones Kiona, después se deposita en Financorp Puesto de Bolsa, y se reúne un millón que genera los créditos sobre los que se crean los "back to back", y van generando el millón de comisiones"; informa E. que: "nos explicaron en la pizarra un esquema de operaciones, eran 20 cuentas, transferencia venía del exterior, se abría una cuenta, se emitía un certificado y de ahí un back to back y así con todas las cuentas" y M: "se nos dijo que la junta directiva había aprobado la apertura de 20 créditos de un millón, estaba don C. y nos dijeron que la Sugef lo había aprobado, que el señor G. y don C. lo habían conversado, en una pizarra se nos hizo la descripción, con el desembolso de un crédito se hacía la garantía del otro crédito y así sucesivamente" y conforme se indicó pericialmente, el planteamiento que se estableció fue ingresar fondos -el millón doscientos cuarenta mil dólares ($1.240.000,00) que se tenía en la cuenta de Corporación Elca Internacional, S.A.- en la cuenta de ahorros de una de esas sociedades anónimas, -iniciando con Inversora Agropecuaria 370 C.A.- (véase folio 28 del Legajo de Prueba Nº 87-A) la que, al recibir los recursos, solicitaba que con tales fondos se constituyera un “Certificado de Inversión a Plazo” a su nombre en el propio Banco Elca S.A. y, de inmediato, solicitaba se le concediera un Crédito, el cual garantizaba con el Certificado de Inversión a Plazo recién constituido a su favor. El crédito era aprobado por el Banco y el desembolso respectivo se ingresaba -por orden de la sociedad beneficiada- en la cuenta de ahorros de la siguiente sociedad anónima, y así sucesivamente hasta completar las veinte sociedades, las cinco costarricenses: Inversiones Silver Reef SA, Vuelo Helicoidal SA, Industrias Artoeyar Ltda., The Blue Water Fall S.A., y Besiberri S.A., y las quince compañías anónimas venezolanas: Comercializadora Sommersby C.A., Inversiones Alter 2005 C.A., Inversiones Ridixi C.A., Construcciones Dijon C.A., Agropecuaria Las Consonantes C.A., Inversiones Otawal C.A., Inversiones Sairanac C.A., Inversiones Valle La Pascua C.A., Deportes 4000 C.A., Inversiones Tendensipre C.A., Inversiones Bastron C.A., Inversora Agropecuaria 370 C.A., Herrerías Las Tres Esquinas 888 C.A., Fondo Río Chico CA, e Inversiones Rustol C.A.; siendo que la última sociedad en la cadena -Inversiones Bastron C.A.- ordenó que el desembolso del crédito que se le otorgó fuera depositado en la cuenta perteneciente a la Corporación Elca Internacional S.A. N° 122011623, sea la misma cuenta de donde originalmente salieron los fondos -el millón doscientos cuarenta mil dólares ($1.240.000,00) inicial-. Es decir, el dinero regresó a la cuenta de la cual provino, así, un millón ciento treinta y cinco mil dólares ($1.135.000,00) de ese último desembolso más ciento cinco mil dólares ($105.000,00) del remanente de algunas de las operaciones crediticias, como de seguido se expondrá. Resultó que de la cadena de traslado de fondos, constitución de certificados de inversión y formalización de créditos back to back, quedó en algunas de las cuentas de las sociedades involucradas, con excepción de Inversiones Silver Reef S.A., Industria Artoeyar Ltda, The Blue Waterfall S.A., Construcciones Dijón C.A, Besiberri S.A., Inversiones Valle La Pascua C.A. y Deportes 4000 C.A., un remanente de dinero constituido por la diferencia entre el monto ingresado a cada cuenta de ahorro y el monto del crédito egresado, remanentes todos éstos que fueron trasladados ese mismo día, treinta y uno de mayo de 2004, a favor de la cuenta de Corporación Elca Internacional S.A. N° 1220011623, en atención a un oficio de cada una de esas sociedades que autorizaba debitar ese remanente de su cuenta (cfr. folios 35 a 47 del Legajo de Prueba Nº 87-A), por lo que, entonces, como se señaló supra, el millón doscientos cuarenta mil dólares ($1.240.000,00) que se utilizó para efectuar las distintas operaciones back to back regresó en su totalidad a la cuenta de donde salió, sea la cuenta de Corporación Elca Internacional S.A.. Esos remanentes sumaron ciento cinco mil dólares ($105.000,00) que se distribuyeron así: Inversora Agropecuaria 370 C.A. cuatro mil dólares ($4.000,00); Fondo Río Chico C.A. mil dólares ($1.000,00); Herrería Las Tres Esquinas 888 C.A. cinco mil dólares ($5.000,00); Comercializadora Sommersby C.A. veinte mil dólares ($20.000,00); Vuelo Helicoidal S.A. diez mil dólares ( $10.000,00); Inversiones Rustol C.A. dos mil dólares ($2.000,00); Inversiones Alter 2005 C.A. tres mil dólares ($3.000,00); Inversiones Ridixi C.A. cinco mil dólares ($5.000,00); Agropecuaria Las Consonantes C.A. siete mil dólares ($7.000,00); Inversiones Otawal C.A. cinco mil dólares ($5.000,00); Inversiones Sairanac C.A. veintiocho mil dólares ($28.000,00); Inversiones Tedensipre C.A. cinco mil dólares ($5.000,00) e Inversiones Bastron C.A. diez mil dólares ($10.000,00); para un total de ciento cinco mil dólares ($105.000,00) que, como se dijo, regresaron a la cuenta de Corporación Elca Internacional S.A. N° 1220011623, para sumarse al depósito del último desembolso de un millón ciento treinta y cinco mil dólares ($1.135.000,00), totalizando así, nuevamente, el millón doscientos cuarenta mil dólares ($1.240.000,00) inicial. A la luz de los informes números 421-DEF-300-04 de folios 844 a 853 del tomo III y sus ampliaciones, 50-DEF-506-04/05 de folios 3746 a 3750 del tomo IX y el 283-DEF-274-05 en folios 5237 a 5239 del tomo XII, y las aclaraciones que sobre los mismos brindó el perito del O.I.J. José Antonio Bravo Bonilla se puede concretizar que el mecanismo utilizado, siguiendo el orden de esos veinte créditos back to back fue: (1) desde la cuenta de Corporación Elca Internacional, S.A. N° 122011623, A. trasladó el millón doscientos cuarenta mil dólares ($1.240.000,00) reunidos, a la cuenta de ahorros de la sociedad denominada Inversora Agropecuaria 370 C.A. en Banco Elca S.A. N° 112003321, la cual a su vez solicitó que con esos montos se emitiera un Certificado de Inversión en Banco Elca S.A. N° 200028446 por un monto de un millón doscientos treinta y seis mil dólares ($1.236.000,00) a un mes plazo (prorrogable por plazos iguales) para proceder a solicitar que se formalizara una operación de crédito a su favor, N° 300012955 por igual suma a la del Certificado y garantizándola con éste; (2) Los recursos de dicho crédito se depositaron en la cuenta de ahorros de Fondo Río Chico C.A., N° 112003226, se constituyó con estos fondos y a favor de esta sociedad el Certificado de Inversión en el Banco Elca S.A. N° 200028434 por un millón doscientos treinta y cinco mil dólares y en el mismo Banco Elca S.A. se formalizó a favor de ésta sociedad una operación de crédito N° 300012947 por igual monto y con dicho certificado como garantía; (3) Esos recursos se depositaron en la cuenta de ahorros de Inversiones Silver Reef S.A., N° 112003290 y se constituyó con ellos, a favor de esta sociedad, el Certificado de Inversión en el Banco Elca S.A. N° 200028443 por un millón doscientos treinta y cinco mil dólares ($1.235.000,00) y de seguido en Banco Elca S.A. se formalizó a favor de ésta sociedad una operación de crédito N° 300012952 por igual monto, y con dicho certificado como garantía; (4) Esos recursos se depositan en la cuenta de Herrería Las Tres Esquinas 888 C.A. N° 112003249, con ellos se constituyó el Certificado de Inversión en el Banco Elca S.A. N° 200028437 por un millón doscientos treinta mil dólares ($1.236.000,00) y Banco Elca S.A. formalizó a favor de ésta sociedad la operación de crédito N° 300012950 por igual monto, y con dicho certificado como garantía; (5) Los recursos de dicho crédito se depositaron en la cuenta de Comercializadora Sommersby C.A., N° 112003261, con ellos se constituyó el Certificado de Inversión en el Banco Elca S.A. N° 200028441 por un millón doscientos diez mil dólares ($1.210.000,00) y se formalizó a favor de ésta sociedad una operación de crédito N° 300012959 por igual monto, y con dicho certificado como garantía; (6) Esos recursos se depositaron en la cuenta de Vuelo Helicoidal S.A., N° 112003350, se emitió el certificado de inversión en el Banco Elca S.A. N° 200028450 por un millón doscientos mil dólares ($.1.200,000,00) y se formalizó a favor de ésta sociedad una operación de crédito N° 300012960 por igual monto, y con dicho certificado como garantía; (7) Ese dinero se depositó en la cuenta de ahorros de Industrias Artoeyar Ltda, N° 112003344, se emitió el Certificado de Inversión en el Banco Elca S.A. N° 200028449 por un millón doscientos mil dólares ($.1.200,000,00) y se formalizó a favor de ésta sociedad una operación de crédito N° 300012963 por igual monto, y con dicho certificado como garantía; (8) Con esos recursos se hace un depósito en la cuenta de The Blue Waterfall S.A., N° 112003381, se constituyó con ellos y a favor de esta sociedad el Certificado de Inversión en el Banco Elca S.A. N° 200028456 por un millón doscientos mil dólares ($.1.200,000,00) y el Banco Elca S.A. formalizó a favor de ésta sociedad una operación de crédito N° 300012965 por igual monto, y con dicho certificado como garantía; (9) Con esos recursos se hace el siguiente depósito en la cuenta de Inversiones Rustol C.A., N° 112003309, se constituyó a favor de esta sociedad el Certificado de Inversión en el Banco Elca S.A. N° 200028451 por un millón ciento noventa y ocho mil dólares ($.1.198,000,00) y se formalizó la operación de crédito N° 300012961 por igual monto y con dicho certificado como garantía; (10) Esos recursos se depositaron en la cuenta de Inversiones Alter 2005 C.A., N° 112003189, se constituyó a favor suyo el Certificado de Inversión en el Banco Elca S.A. N° 200028442 por un millón ciento noventa y cinco mil dólares ($.1.195,000,00) y se formalizó la operación de crédito N° 300012951 por igual monto y con dicho certificado como garantía; (11) Ese dinero se depositó en la cuenta de Inversiones Ridixi C.A., N° 112003255, se constituyó el Certificado de Inversión en el Banco Elca S.A. N° 200028436 por un millón ciento noventa mil dólares ($.1.190,000,00) y se formalizó la operación de crédito N° 300012948 por igual monto y con dicho certificado como garantía; (12) La suma obtenida fue depositada en la cuenta de Construcciones Dijón C.A., N° 112003315, con ella se constituyó el Certificado de Inversión en el Banco Elca S.A. N° 200028448 por un millón ciento noventa mil dólares y con él como garantía se formalizó la operación de crédito N° 300012958 por igual monto; (13) El dinero se deposita en la cuenta de Besiberri S.A., N° 112003410, se constituyó a su favor el Certificado de Inversión en el Banco Elca S.A. N° 200028455 por un millón ciento noventa mil dólares ($.1.190,000,00) y el mismo Banco Elca S.A. formaliza a favor de ésta sociedad una operación de crédito N° 300012964 por igual monto y con dicho certificado como garantía; (14) Esos recursos se depositaron en la cuenta de Agropecuaria Las Consonantes C.A., N° 112003373, con ellos se constituyó a favor de esta sociedad el Certificado de Inversión en el Banco Elca S.A. N° 200028447 por un millón ciento ochenta y tres mil dólares ($.1.183,000,00) y con él como garantía se formalizó a favor de ésta sociedad una operación de crédito N° 300012956 por igual monto; (15) El dinero de ese crédito se depositó en la cuenta de Inversiones Otawal C.A., N° 112003284, se constituyó con él el Certificado de Inversión en el Banco Elca S.A. N° 200028452 por un monto de un millón ciento setenta y ocho mil dólares ($.1.178,000,00) y de seguido en el mismo Banco se formalizó a favor de ésta sociedad una operación de crédito N° 300012962 por igual monto y con dicho certificado como garantía; (16) Los recursos de ese crédito se depositaron en la cuenta de Inversiones Sairanac C.A., N° 112003232, con ellos se constituyó a favor de esta sociedad el Certificado de Inversión en el Banco Elca S.A. N° 200028435 por un millón ciento cincuenta mil dólares ($.1.150,000,00) y con él como garantía se formalizó a favor de ésta sociedad y en el citado banco una operación de crédito N° 300012949 por igual monto; (17) Los recursos de ese crédito se depositaron en la cuenta de Inversiones Valle La Pascua C.A., N° 112003278, con estos fondos se constituyó el Certificado de Inversión en el Banco Elca S.A. N° 200028438 por un millón ciento cincuenta mil dólares ($.1.150,000,00) y se formalizó a favor de ésta sociedad la operación de crédito N° 300012954 por igual monto; (18) Los recursos de dicho crédito se depositaron en la cuenta de Deportes 4000 C.A., N° 112003404, se constituyó con estos fondos el Certificado de Inversión en el Banco Elca S.A. N° 200028439 por un millón ciento cincuenta mil dólares ($.1.150,000,00) y se formalizó a favor de ésta sociedad una operación de crédito N° 300012957 por igual monto y con dicho certificado como garantía; (19) Los recursos de dicho crédito se depositaron en la cuenta de Inversiones Tendensipre C.A., N° 112003338, se constituyó a favor de esta sociedad el Certificado de Inversión en el Banco Elca S.A. N° 200028444 por un millón ciento cuarenta y cinco mil dólares ($.1.145,000,00) y se formalizó a favor de ésta sociedad una operación de crédito N° 300012953 por igual monto, y con dicho certificado como garantía; (20) Ese dinero se depositó en la cuenta de Inversiones Bastron C.A., N° 112003427, con él se constituyó el Certificado de Inversión en el Banco Elca S.A. N° 200028453 por un millón ciento treinta y cinco mil dólares ($.1.135,000,00) y con él como garantía se formalizó la operación de crédito N° 300012966 por igual monto. Consecuentemente, con todos estos movimientos financieros ficticios el imputado A. consiguió aumentar de forma contable, aunque no financiera, la Cartera de Crédito del Banco Elca S.A., por él dirigido, en un total de veintitrés millones ochocientos mil dólares ($23.800.000,00), así como registrar comisiones, que también son ficticias pues, como se verá, se trata del mismo dinero original, por desembolsos de créditos a favor del Banco por un millón de dólares exactos ($1.000.000,00), todo lo cual se dio en un mismo día, el treinta y uno de mayo de dos mil cuatro, y con la única finalidad, entonces, de que quedará registrado en los Estados Financieros del banco a esa data. De lo expuesto hasta ahora, queda debidamente acreditado que no sólo ningún recurso externo ingresó al Banco Elca S.A. sino que tampoco éste obtuvo algún beneficio real por esos movimientos, a no ser, entonces, únicamente el contable, y cuyo único fin era aparentar una situación financiera saludable, tal y como lo puntualizó el superintendente R: "La naturaleza de esas operaciones era algo ficticio, también el propósito porque el banco estaba mostrando normalidad cuando estaba en irregularidad dos. Se ocultaba la verdadera situación financiera. Se mejoraba situación patrimonial de la entidad. Se revisaron expedientes y se determina que no cumplían con requisitos. Desde marzo era evidente que el banco estaba en riesgo, con solo revisar el 15%, no era la primera vez que estaba en esa situación en irregularidad uno y dos. Si hubiera seguido funcionando el público hubiera perdido sus negocios". Aunque el imputado A. declaró en debate no hizo mención al tópico tratado en este apartado del fallo, aunado a que se abstuvo de contestar preguntas de las partes procesales. Lo anterior no obstante que, por escrito (cfr. folios 4059 a 4065 del tomo X del principal) consta una amplia declaración suya sobre los relacionados créditos back to back misma que, aunque no desmerece mayormente la elaboración que presenta el Tribunal, sí persigue evadir su responsabilidad. Contrariamente, a lo allí expuesto por el imputado A., (cfr. artículo 343 párrafo 3º del Código Procesal Penal) afirma ahora su defensor particular que los citados créditos back to back produjeron ingresos frescos al banco, entre otros porque produjeron comisiones por el orden del millón de dólares ($1.000.000,00) que ingresaron en las arcas del mismo. Sin embargo, esto no es más, que un argumento de defensa y no merece credibilidad, pues nuevamente se comprueba que se trata, no de un dinero fresco distinto, sino del mismo dinero que sirvió como base para generar los créditos back to back y que regreso a la cuenta corriente de Corporación Elca Internacional, S.A. de la cual provenía inicialmente, tal y como ya fue establecido.” (folios 17405-17413). Por otro lado, si la SUGEF autorizó, por cierto de manera condicionada (lo cual fue irrespetado), esas operaciones, fue bajo la creencia de que la información que brindaba el acusado y su banco, era fiable, lo que a la postre se reveló como equivocado, pues este pretendía ocultar que esas operaciones eran una simple maniobra contable para aparentar que la situación de la entidad financiera no era tan crítica. De modo que, independientemente de las posibles anomalías en la concesión de los créditos en cuestión, lo relevante es que toda la sucesión de operaciones no era otra cosa que un montaje. Ante toda esta situación, no se ve cuál es la importancia de la conclusión del informe financiero que aporta el justiciable, el cual a folio 26 da cuenta de una “obligación legalizada rechazada” (sic) por 1.006.047 dólares producido por la reversión de las comisiones de la citada operación back to back, pues ello no certifica ni mucho menos que ese dinero se haya generado como ganancia, sino que lo que existe es una obligación contable, cuyo destino final depende de la resolución judicial correspondiente.

XXXI.- Como segundo motivo de forma, reprocha el endilgado que no se comprobó la existencia de dolo en la estafa de que se le acusó. Comenta que las alusiones que a ese punto se hacen en el fallo, son escuetas y carentes de fundamentación probatoria, la cual no es mencionada por los Jueces. Antes bien, asegura, mucho de los elementos tomados en cuenta por el a quo confirman la inexistencia de ese dolo, para lo cual busca apoyo en algunas partes del fallo que transcribe. Dice que el señor G. hizo inversiones en al menos tres ocasiones diversas con su banco, de las cuales dos fueron positivas y que en la tercera él trató de honrar sus compromisos, respondiendo con sus propios recursos, sobre lo que se extiende relatando los esfuerzos en ese sentido y lo que dijeron los testigos. No es atendible el motivo. Todos esos aspectos, consideración de los párrafos del fallo referidos por el petente, ya fueron discutidos y resueltos en los considerandos II, IV, V y VI, en los cuales se dice cuál fue la prueba que puntualmente el a quo tuvo en cuenta para demostrar los diversos componentes de la estafa, incluyendo el dolo defraudatorio, por lo que se remite a los interesados a lo allí consignado.

XXXII.- Como siguiente motivo, reclama el imputado la incorporación ilegal de la prueba procedente de Bahamas, de la cual no se comprobó que se hubiera levantado el secreto bancario ni que se respetara la cadena de custodia. Siendo prueba que no beneficia al sospechoso, la falta de protesta o el uso de esas probanzas por la defensa, no sanean los defectos que contienen y deben ser excluidas. El tema ya fue resuelto en el vigésimo considerando al evacuar el recurso de su codefensor. Estése a lo allí dispuesto.

XXXIII.-En el reclamo cuarto, se argumenta que se violentó el debido proceso, al no efectuarse el debate en las dos fases que se había acordado en la etapa intermedia. “…este proceder ha ocasionado un serio agravio a los derechos del imputado, pues se le vedó la posibilidad de exponer ante los miembros del Tribunal, los elementos de convicción tendientes a suministrar mayor información para efectos de la fijación de la pena a imponer.” No es de recibo el reproche. Ya el tema fue resuelto en el considerando XIV de esta resolución, por lo que debe estarse a lo allí decidido. Amén de que el recurrente no indica cuál es el elemento de convicción, no pudo exponer en las conclusiones que sí hubiera podido plantear en la segunda etapa del debate que echa de menos, o qué pudo haber dicho en esa etapa que no pudiera en el juicio tal y como se celebró. Por ende, ninguna razón adicional el quejoso a aquellas que fueron analizadas en el considerando ya referido.

XXXIV.- Continuando con la tónica de reiterar motivos que ya interpusieron sus defensores, el justiciable alega que falta fundamentación en la pena que se le impuso. Dice que el artículo 142 del Código Procesal Penal impone el deber de fundamentar las resoluciones, y que el 71 del Código Penal establece los parámetros que han de ser tomados en cuenta para la fijación de la pena, todo lo cual fue soslayado por el a quo, el cual no valoró las cualidades personales del endilgado, como sus estudios o edad. Concluye diciendo que la finalidad de la sanción debe ser la resocialización, por lo que veintitrés años de prisión son desproporcionados. Todos esos aspectos fueron ya debatidos en el considerando XV, remitiéndose en consecuencia a los interesados a lo allí establecido.

XXXV.- Finalmente, en un libelo adicional, A. presentó un sexto motivo de forma, en el que denuncia errónea valoración de la prueba, al darse crédito a testigos que “…claramente poseían un interés muy particular, específicamente el interés de no ser implicados como imputados en los mismos hechos…” Alude a los testimonios de H y J. A continuación, transcribe doctrina y jurisprudencia del Tribunal Constitucional español acerca de lo que es la correcta valoración de la prueba, así como extractos del fallo en los que se destaca la participación como actores y luego como testigos de ambos sujetos. Termina diciendo que no se contó con pruebas independientes que corroboraran la información que ellos brindaron y nuevamente acude a la doctrina sobre los “criterios intrínsecos negativos”. El motivo se declara sin lugar. El que la doctrina y la jurisprudencia aseveren que debe tenerse especial cuidado en la valoración de personas que están vinculadas por relaciones de amistad o enemistad, o bien por intereses concordantes o contrastantes con el acusado, no significa que esas declaraciones deban descalificarse, sino (y en eso concuerda el quejoso) que debe tenerse mayor atención. Sin embargo, a su vez, eso no acredita que en este caso esos testigos faltaran a la verdad, cosa que ni siquiera el imputado en su recurso intenta demostrar, sino que simplemente proyecta una sombra de sospecha con la cual pretende devaluar dichas probanzas, sin que concrete en qué semblante no son ciertas o cuál prueba las desacredita. Por el contrario, como se explicó páginas atrás, dichos testimonios, aunque provenientes de personas que tuvieron una participación accesoria en algunos de los hechos (por los cuales llegaron a una conciliación), se mostraron consistentes e internamente lógicas, al igual que consistentes con el contexto y las demás probanzas evacuadas. Además, debe indicarse categóricamente que sí hubo pruebas independientes que confirmaron el dicho de esos testigos, como fue desarrollado en los considerando II, III y XXI, al evacuar el tema de la confiabilidad de los testigos F.y E. y G. Sin lugar el recurso presentado por el justiciable A..

XXXVI.- Los representantes de la demandada civil, quiebra del Banco Elca sociedad anónima, presentaron recurso, reclamando en el primer motivo, que encabezan como “violación a las reglas de la sana crítica”, que el a quo infringió la ley de fondo, pues en el presente asunto no se produjo un perjuicio patrimonial contra la sociedad anónima del señor M. Dejando de lado la imprecisión técnica de alegar en conjunto problemas de razonamiento y mala aplicación de la ley sustantiva a la especie fáctica que se cuestiona (lo que es un alegato por violación indirecta de la ley), debe decirse que no llevan razón los impugnantes. Después de transcribir in extenso la parte conducente del fallo, dichos gestionantes dicen que los certificados de inversión emanados a cambio de los tres millones de dólares entregados por el representante de G. a A., eran verídicos; y, que por otro lado, estos fondos debían ser depositados fuera de Costa Rica. Si el banco en Belice no podía captar dinero para entonces, eso no significa que no quedara obligado por tales certificados, por lo que debieron ser cobrados allá. Por el contrario, no se demostró que la perjudicada realizara gestiones para cobrar los dineros en el sitio donde los envió de forma voluntaria o que no llegaran a ese destino, sobre lo cual hace énfasis en las páginas siguientes. No es atendible el reparo. Tanto en este motivo como en los subsiguientes, la constante será que los recurrentes pretenden suprimir el dato fundamental sobre la categoría de los hechos que nos ocupan: que no se trata de una mera negociación financiera, sino de la comisión de un delito. De suerte que aunque los fondos estuvieran destinados a otro sitio o se mencionara una agencia bancaria de otro país, ello no inhibe en nada a los tribunales nacionales para conocer del asunto y pronunciarse conforme a la ley, en vista de que los hechos tuvieron lugar en Costa Rica, donde tanto se dio el engaño como el perjuicio patrimonial al que condujo. Este aspecto, que es criticado por los petentes, quienes niegan que se diera ese engaño y perjuicio, está sobradamente demostrado, al existir pruebas fehacientes ya recapituladas arriba en cuanto a que A. recibió tres millones de dólares del señor G, al cual le había ofrecido los servicios offshore del banco Elca en Belice. Estos, no fueron entregados “voluntariamente”, sino con una voluntad viciada por el error en que el acusado lo hizo caer, al decirle que tales servicios existían cuando en realidad apenas se estaba tramitando el permiso respectivo, pero ello fue útil para que, confiando en esa versión, G. entregara el dinero y A. lo desviara para una cuenta suya, sin destinarlo a Belice, donde no era posible en todo caso, dado que la actividad de la citada agencia era una falacia. Huelga decir, que G. no pudo recuperar sus fondos. Por ende, enfocar los hechos como si se tratara de una simple transacción financiera y exigir que se buscara las soluciones acordes a tal condición (gestiones de cobro, constatación de los depósitos y otras diligencias), ignora que no se trata de una situación simplemente mercantil, sino que se trató de un delito, el cual se efectuó mediante la simulación de datos o circunstancias falsas (una agencia inoperante, unas instalaciones que simulaban que estaban activas, certificados ficticios, un depósito en una cuenta que no era tal, etc.), que los recurrentes dan por verídicas para pedir una solución diferente a la condenatoria civil de su representada, cosa ilógica y justamente se está demostrando que eran una falacia. Para terminar, no puede dejar de citarse lo establecido por el a quo al respecto, lo cual resulta aun más esclarecedor. “Se ha alegado (folios 16637 a 16639 del tomo XXVII principal) que los/as jueces/ezas costarricenses no son competentes -aunque en realidad se trata de una falta de jurisdicción de los tribunales nacionales- para pronunciarse sobre la demanda civil ya que los certificados a favor de Night Glow S.A. (en atención al principio de literalidad propio de los títulos valores), deben considerarse emitidos en Belice que es el lugar determinado en el contrato, por lo que es en dicho país donde debe cumplirse el contrato y dilucidarse cualquier controversia, según lo establecen los artículos 1907, 323 y 324 del Código de Derecho Internacional Privado comúnmente conocido como Código Bustamente, como se le seguirá denominando. Esta argumentación debe ser rechazada. En primer lugar hay que decir que Belice no aparece a esta fecha como país signatario, adherente o ratificante del Código Bustamante (ver información oficial en la página de la OEA: http://www.oas.org/juridico/spanish/firmas/a-31.html) por lo que no se observa cómo podría aplicársele una normativa que no es parte de su ordenamiento. En segundo lugar y más importante, quien formula este reproche intenta que se pase desapercibido el elemento esencial de esta discusión y es que los mencionados títulos valores carecen de valor como tales (es decir, como títulos valores) pues fueron parte del medio usado por el encartado C. para inducir en error a la entidad ofendida. Y se dice que no son títulos valores propiamente dichos porque al momento de su emisión el Elca International Bank and Trust Limited de Belice no estaba autorizado para captar fondos del público y, por ende, para obligarse en un contrato de la naturaleza del discutido, tal y como consta en los documentos de folios 35 a 40 del legajo de querella de Cori Consulting and Financial Services S.A.. Por otra parte, la obligación que se está cobrando con la demanda civil no es propiamente derivada de los referidos certificados -lo que supondría su validez- sino una derivada de un delito (estafa) y ese delito fue cometido en Costa Rica pues el dinero fue entregado en las instalaciones del Banco Elca en San José a C. quien si bien no estaba presente en ese momento dio instrucciones a H. para su recepción y disposición en su beneficio. Fue en ese lugar en que A. se lo apropió al ordenar que se trasladara hasta una cuenta suya fuera del país respecto de la que dispuso posteriormente con un fin diverso al contratado. Si el delito se dio en Costa Rica y los documentos fueron solo un medio para hacer incurrir en error al ofendido, es en Costa Rica en el lugar en que se tiene que plantear el reclamo siendo éste el tribunal, luego de cumplidas las otras etapas del proceso, el competente para pronunciarse sobre el fondo, al ser el tribunal penal de hacienda con competencia para conocer los delitos indicados en el numeral 1 de la Ley Nº 8275 de creación de la Jurisdicción Penal de Hacienda y de la Función Pública, entre los que se encuentran los previstos en la Ley Orgánica del Banco Central de Costa Rica y, por conexión cualquier otro hecho relacionado ya sea por cometerlo el mismo encartado -como aquí sucede- o por otras circunstancias previstas en la norma (artículos 50 y 51 del Código Procesal Penal). Como si lo que se lleva dicho hasta aquí no fuera suficiente para el rechazo del reclamo hay que agregar que el cheque con el que R. paga los tres millones de dólares lo entrega a H. en el Banco Elca de Costa Rica el 31 de mayo de 2002 a las 10:50 a.m. y esa es la misma fecha que tienen los certificados (Ver folios 2588, 2590, 2592 y 2594 del tomo VII principal) que fueron retirados también en San José, Costa Rica lo cual, sumado al hecho de que para entonces no se tenía licencia para captar y que el banco local manejaba documentación con el membrete del banco de Belice, permite inferir que esa emisión nunca se produjo en Belice, aunque así se consigne, sino que se hizo en Costa Rica.” Por todo lo anterior, debe declararse con lugar el motivo.

XXXVII.- Como segundo y tercer motivos, subrayan los recurrentes que no es cierto que la negociación con la sociedad anónima Night Glow fuera por parte del Banco Elca y actuando A. como intermediario “…pues los elementos probatorios evacuados durante el contradictorio lo único que nos reflejan es que la aludida transacción financiera lo fue en lo personal con el (sic) C. y J…” Acudiendo a recopilar algunos trazos de la prueba testimonial, los petentes reiteran que la agencia de Belice existía y que fue voluntariamente que se entregó ese dinero con el fin de que se depositara allí, y no en el Banco Elca de Costa Rica, al que de todas maneras no llegó, pues fue depositado por A. en una cuenta suya. Además, que siendo G. un empresario exitoso y su representante un abogado eso que, de acuerdo con esos testimonios y pruebas documentales insuficientemente sopesadas por el a quo, se pudo demostrar que esa deuda no competía al Banco Elca, al punto que fue rechazada como parte de las obligaciones contractuales de este. No llevan razón los impugnantes, que continúan confundiendo la tipología de los acontecimientos. El Banco Elca responde de las consecuencias civiles de la estafa cometida en daño de Night Glow sociedad anónima, no porque tuviera alguna obligación contractual con esta, cosa que está sobradamente descartada y acerca de la que, innecesariamente los recurrentes insisten, pues no está siendo objeto de discusión, los recurrentes insisten. La responsabilidad surge de un hecho penal, de un delito y las secuelas extracontractuales que acarreó. Es, por ende, irrelevante si las reuniones que se celebraron en las instalaciones del Banco Elca en San José, lo comprometían o no contractualmente; o si esos dineros estaban destinados a ser depositados en este o no; o si Gaber y sus representantes eran personas susceptibles de confundirse. El meollo del asunto no radica en cuáles fueron los compromisos adquiridos por el Banco Elca y aceptados por la contraparte, que es lo que prolijamente tratan de debatir los representantes de la demandada civil, sino la responsabilidad extracontractual que le cabe en virtud de los ilícitos penales cometidos por su representante, quien valiéndose de los medios y credibilidad que su calidad de presidente del Banco Elca y la aparente solidez de este, del cual incluso ofrecía servicios offshhore, pudo engañar a G. y hacerlo que le entregara tres millones de dólares. En torno a ese tema, no le hace justicia al fallo recortar, en aras de la concisión una argumentación, considerablemente documentada y lógica como la que hace el a quo del folio 17290 en adelante. “Lo que queda por determinar, entonces, es si ¿existen bases para condenar civilmente a la quiebra del Banco Elca S.A.? Es decir, hay que analizar si la Quiebra del Banco Elca S.A. está legitimada pasivamente para ser demandada o si, por el contrario y como lo han alegado las defensas de los demandados civiles, se ha dado un litis consorcio pasivo necesario incompleto ya sea porque no se trajo como demandada a Elca International Bank and Trust Limited ó a Corporación Elca Internacional S.A. que era la reguladora del grupo. Cabe hacer un paréntesis para indicar que la defensa civil de C. en cuanto persona física carece de interés para referirse a este tema pues sólo afecta a la Quiebra del Banco Elca que no es representada por C. y existe división patrimonial y jurídica entre las personas físicas y jurídicas. Es decir, con independencia de lo que se resuelva sobre este tópico, C. como persona física siempre responde de las consecuencias civiles de su delito. Pese a lo dicho, el tema se abordará en conjunto. El criterio unánime del tribunal es que si la Quiebra del Banco Elca si está legitimada para ser demanda pasivamente y que no hay ninguna litis consorcio pasiva necesaria pendiente de completar que impida hacer pronunciamiento. Esto último porque si bien la Corporación Elca era la reguladora del grupo económico, su responsabilidad es subsidiaria (artículo 142 párrafo segundo de la Ley Orgánica del Banco Central) y, en todo caso, C. decía abiertamente -incluyendo a la entidad ofendida- que la offshore de Belice (que él indicaba ya estaba en funcionamiento u omitía decir que carecía de licencia para captar) era una sucursal del Banco Elca S.A. y no de la Corporación, aunque indirectamente sí pertenecía a ella. Si era una sucursal del banco el Banco Elca S.A. (hoy su quiebra) responde por ella al mencionarla el Presidente de dicho banco como un servicio más del banco, aspecto en el que -precisamente- consistió el ardid. En este sentido se remite a lo que ya se dijera en el aparte VI.1.(ii) (iii) de esta sentencia. Por otra parte Elca International Bank and Trust Limited fue el ardid desplegado por el encartado A. Si él hubiera ofrecido documentos de una entidad inexistente esa entidad inexistente no podría ser demandada. En este caso él ofreció invertir en una entidad existente pero sin permiso para captar en ese momento y emitió certificados a su nombre pero sin registrar los dineros en ella, de modo que es él y el banco del que el offshore iba a ser un servicio quienes deben responder. Por último, de haber alguna responsabilidad del Elca International Bank and Trust Limited (cuya denominación varió a Interbank and Trust Limited) sería solidaria y en ese caso el acreedor puede elegir contra quienes dirigir su demanda (artículo 640 del Código Civil: "El acreedor puede reclamar la deuda contra todos los deudores solidarios simultáneamente o contra uno solo de ellos"), sin perjuicio de que el codeudor cite a los otros codeudores, facultad que no fue ejercida en este caso por los demandados civiles. La legitimación pasiva de la Quiebra del Banco Elca proviene de dos fuentes. Primero porque la misma ley establece una responsabilidad objetiva -que no amerita valoración alguna- y se basa en una especie de protección a terceros que vieron al administrador actuando en representación de la empresa y, aunque parezca contradictorio, en una forma de "sanción objetivizada hacia la empresa por la culpa in eligiendo e in vigilando" con que se actuó al elegir a dicho personero. Así lo establecen el artículo 106 incisos 2 y 3 del Código Penal al señalar que están obligados solidariamente con los autores del hecho punible al pago de los daños y perjuicios "las personas jurídicas cuyos gerentes, administradores o personeros legales, resulten responsables de los hechos punibles" así como "las personas (...) jurídicas dueñas de establecimientos de cualquier naturaleza, en que se cometiere un hecho punible por parte de sus administradores, dependientes y demás trabajadores a su servicio". En igual sentido el artículo 137 del Código Penal de 1941 (reglas sobre responsabilidad civil vigentes según ley Nº 4981) estatuye que responden solidariamente con el autor las sociedades "por las estafas, defraudaciones y falsificaciones de cualquier clase que en el ejercicio de sus facultades y con motivo y en el desempeño del servicio de esas entidades, cometan sus directores, gerentes, administradores, mandatarios o dependientes". Ha quedado debidamente demostrado, como se expuso ampliamente al valorarse la prueba, que C. era el Presidente, representante y administrador de hecho (con autoridad jerárquica superior a la del gerente general) del Banco Elca S.A. y que, actuando en funciones propias de su cargo, ofreció a la entidad ofendida los servicios offshore de ese banco en Belice -que llevaba el nombre de Elca International Bank and Trust Limited- con lo que hacía creer que se trataba de la misma entidad, como normalmente funcionaba en otras instituciones bancarias en el país. C. ha sido encontrado como autor responsable del delito de estafa, ilícito que se consumó en las instalaciones de Banco Elca en Costa Rica cuando R. se presenta a entregar el cheque por tres millones de dólares y, por no estar A. en ese momento, lo recibe H. quien, previa comunicación telefónica con A. quien le da las instrucciones a seguir, hace una nota -en papel membretado del Elca International Bank and Trust Limited- dando las instrucciones sobre cómo proceder con dicho dinero. Por ello la responsabilidad civil solidaria de Banco Elca (hoy de su Quiebra representada por la Junta Liquidadora, que es la sucesión de aquella persona jurídica) se impone. En ese sentido se han pronunciado ya tanto la doctrina como la jurisprudencia: ¬“…desde el año de 1962, nuestra jurisprudencia tiene establecido que las personas jurídicas incurren en responsabilidad directa por el hecho de sus órganos tanto de dirección como de ejecución, lo que significa que la culpa del órgano es la culpa de la persona jurídica y, por lo tanto, establecida la culpa del órgano, y que éste causó el daño en ejercicio o con ocasión de sus funciones, la persona jurídica automáticamente es responsable, y nada la libera de responsabilidad (...) Por lo tanto, si el funcionario de una persona jurídica es responsable penalmente de un delito cometido en el ejercicio de sus funciones, la persona jurídica no tiene otra forma de exonerarse”. TAMAYO JARAMILLO, J. Indemnización de los perjuicios en el proceso penal. Biblioteca Jurídica Diké, Medellín, 1ª edición, 1993, pp. 137-138. ¬"...por imperio de Ley se determina taxativamente la responsabilidad civil de las personas jurídicas, cuyos gerentes, administradores o personeros legales, resulten responsables de hechos punibles. Dicha norma no establece ninguna excepción, de tal forma, que no es posible desaplicarla aún en el evento de que la persona jurídica civilmente responsable sea a su vez la ofendida por el hecho delictivo cometido por sus representantes; actuar de otra forma, sería contrario a Derecho y por ello debe desatenderse lo solicitado por el impugnante." Sala Tercera de la Corte Suprema de Justicia, voto Nº 2005-1114 e las 15:45 hrs. del 29 de septiembre de 2005. Pero, por otro lado, aunque no hubiera ninguna disposición legal en ese sentido, igual se establecería dicha responsabilidad pues si se efectúa el análisis de la prueba indiciaria se determina, entonces, que no hay ninguna posibilidad de entender que la legitimación pasiva la tenga únicamente (aunque también puede ser solidariamente responsable en cuyo caso el acreedor se reserva la posibilidad de instar contra quien lo estima pertinente, sin que en este caso lo haya realizado y sin que eso implique ninguna sanción procesal en contra suya: artículos 637, 640 y 646 del Código Civil) el Elca International Bank and Trust Limited" como lo alega la defensa de A. y de la Junta Liquidadora. Esto así porque A. creó una situación artificial, ficticia, para hacer creer que se trataba de una operación más del Banco Elca S.A. en cuyo caso, en aplicación de la teoría del corrimiento del velo y de la apariencia de la situación jurídica, Banco Elca S.A. -que fue el verdadero creador de toda la situación a través de su presidente- es quien debe responder (ahora a través de los representantes de la Junta Liquidadora de su Quiebra decretada, conforme lo dispone la legislación nacional) ya que: “En las grandes empresas -muy particularmente las sociedades anónimas y otras por acciones- el origen y la naturaleza de la explotación, su orientación y las transformaciones radicales que pueden sufrir emanan de un grupo reducido de personas y a veces de uno solo, que tienen el pleno dominio y gobierno de la sociedad. Al producirse el derrumbe del ente, un profundo deterioro o una maniobra enderezada a defraudar a otros accionistas, difícilmente aparecerán cuentas mal rendidas. Los actos dolosos asumen otras formas, de mucho mayor calibre, que a veces han sido llevadas a cabo dentro de un marco más o menos formal y encuadradas dentro de las facultades de gobierno de sus dirigentes. Pero sobrepasan abusivamente lo que está permitido y, con violación de los deberes de una buena administración, lucran con los actos criminales y perjudican al resto de los accionistas o los obligan abusivamente (…) Los más usuales y habilidosos son el vaciamiento de empresas y el velo, bajo el que se cubre una realidad fraudulenta” MILLAN, Alberto. Los delitos de administración fraudulenta y desbaratamiento de derechos acordados. Buenos Aires, 1976, pp. 39-40. La prueba indiciaria se constituye en la forma común de acreditar ciertos tipos de delincuencias, particularmente cuando de “esconder” realidades a través de cascarones legales se trata. Por ello, en delitos como la estafa, el fraude de simulación y la administración fraudulenta resulta importantísima dicha prueba que, conforme al sistema de libertad probatoria que nos rige (artículo 182 del Código Procesal Penal), es plenamente admisible (RODRÍGUEZ RESCIA, Marcos y ESPINOZA OBANDO, Marianella. Fraude de simulación, IJSA; San José, 1ª edición, 1997; CASTILLO, Francisco. “La prueba indiciaria”. En: Revista Judicial Nº 1, San José, 1979; GIANTURCO, Vico. Los indicios en el proceso penal. Traducción de Julio Romero Soto, Bogotá, 1974; ROCHA DEGREEF, Hugo. Presunciones e indicios en juicio penal, Ediar S.A., 2ª edición, Buenos Aires, 1997; JINESTA LOBO, Ernesto. La simulación en el derecho privado. Escuela Judicial, San José; 1990). Entre los indicios para determinar la realidad de lo acaecido -que predomina sobre la forma o apariencia que se le dio- que no son numerus clausus y siguiendo la exposición del último autor, figuran los siguientes aplicables a esta causa: *Causa simulandi, motivo o interés que se tiene para presentar como real algo que no lo es: C. requería nuevas inversiones para sanear su Banco y para poder realizar otras operaciones en que estaba inmerso. Para mayo de 2002 el banco había pasado estados de irregularidad financiera decretados por la SUGEF, A. estaba inmerso en nuevos proyectos financieros (fundador del Hospital Cima San José, entre otros), el mercado bancario nacional mantenía una competencia fuerte con bancos poderosos internacionales que llegaban al país y obligan a que se produjeran alianzas, fusiones o absorción de los bancos pequeños, el Banco Elca no tenía a la fecha ninguna sucursal offshore que si mantenían otros bancos, lo que le restaba competitividad. Por ello, A -que acostumbraba personalmente atender a clientes importantes de la institución- con tal de que las diversas operaciones que estaba dispuesto a efectuar M. no se fueran de su institución, ofrece los servicios de una sucursal offshore en Belice que A. sabía que apenas estaba en trámite y que aún no estaba autorizada para captar, pues se lo dijo F.y y G. con motivo de esa negociación específica. A. presenta ese como un servicio más de Banco Elca S.A. al punto que el dinero se recibe en sus instalaciones, en las que se realizan instrucciones al supuesto banco de Belice en papel membretado del banco de Belice, el cual llevaba el mismo nombre y con los mismos signos externos que el nacional, todo lo cual se discute ante mandos gerenciales altos del banco costarricense y entregando en Costa Rica, a través del personal de Banco Elca S.A. y en sus instalaciones, los certificados de inversión y los cupones de interés del banco de Belice, para luego solicitar su custodia. *Neccesitas: El encartado A: necesitaba que ese negocio simulado se diera pues de él derivaba beneficios y obtenía dinero para hacer frente a sus obligaciones. Nótese que logró obtener tres millones de dólares (más algún flujo inmediato o momentáneo de liquidez por usar la plataforma del banco para transferencias internacionales) que terminaron en la cuenta de Bosques de Ayarco BA S.A. que él dominaba, cuenta que A. usaba para pagar sobregiros según indicara H. *Affectio: la existencia de relaciones familiares, de amistad, dependencia, negocios o de otra índole son importantes para el simulante. Como el ardid no lo podía desempeñar por si mismo A, él se vale del amplio prestigio y respeto que le rendían todos sus empleados y todo el personal de la institución que lo veían a él, porque él se comportaba así, como el superior jerárquico general, por encima del gerente general y no como un presidente de junta directiva "pasivo". Es importante recordar que no hubo ningún testigo que se refiriera en forma descalificante respecto a C.. Hubo quien indicó que lo tenía "lleno de medallas" aunque luego se le fueran cayendo una a una (Varela). Todos los testigos destacaron el don de gentes, el trato amable y respetuoso y la confianza que les merecía pues hasta hacía oración en las mañanas antes de empezar la jornada (en tal sentido E). La confianza, respeto y hasta admiración incondicional que se le tenía era la tónica. De ello se vale A. para que personas que él había llevado al banco (H. y J. ) callen muchos aspectos que conocían que no eran correctos a ese momento y confíen en que A. no efectuará ningún acto con resultado ilícito aunque los medios no sean los normados. Por ello, en la reunión con G. y sus allegados, A. llama a gente del banco con posiciones jerárquicas importantes y ante ellos habla de la sucursal offshore como un servicio más del Banco Elca S.A. a sabiendas, todos, de que aún no estaba en funcionamiento sino sólo en trámite lo que daba visos de verosimilitud, ante su personal de confianza, a las gestiones de A. máxime cuando él decía ser solvente y comprometer su patrimonio y prestigio para la satisfacción final del cliente. A. pone al frente de la operación de Belice a alguien de su entera confianza como era J, una persona hasta entonces de un reconocido prestigio bancario, que había abierto sucursales offshore de otros bancos (del Comercio, por ejemplo) y que ostentaba un cargo honorífico en el país en que se abriría la sucursal, por lo que no había motivo algún para dudar de la licitud de lo que a. presentaba en ese momento como real. *Notitia o conocimiento de la simulación por el cómplice: ¿cómo no iba a saber J. que el banco offshore en Belice no existía o no tenía las autorizaciones para captar dinero si él mismo estaba al tanto de los trámites? ¿cómo no se iba a percatar, al firmar el certificado de inversión, de esa situación? Evidentemente si conocía de dicha situación y él mismo lo dijo. Incluso Bolívar refirió que F.y una vez lo puso a firmar otros certificados de ese banco y le dijo que el de Belice era un clon del de Costa Rica y los que estaban autorizados para firmar a nivel local también lo estaban en el extranjero, lo que F.y mismo sabía que no era así. Cuando F.y y A. firman los certificados de inversión del Elca International Bank and Trust Limited a favor de Night Glow S.A. sabían que el banco no estaba operando pero que su cliente confiaba en lo que ellos le hacían parecer real, ambos en ejercicio de sus cargos como Presidente y asesor de Banco Elca S.A. y actuando en las instalaciones de este banco. *Habitus, character: cualquier conducta antisocial o antijurídica es importante y debe tenerse en cuenta. Los testigos indicaron que Night Glow S.A. no fue la única entidad a la que se le ofreció el servicio de banco offshore de Banco Elca S.A. sino que A. la ofrecía a diestra y siniestra y "no se le podía callar la boca" como indicara H. refirió que él firmó certificados de ese banco a favor de J. y también hay prueba documental admitida referida a certificados similares a favor de Cori Consulting and Financial Services S.A., hechos que no fueron objeto de este debate por haberse llegado a un acuerdo conciliatorio. Se dijo en el aparte VI.1 (ii) (iii) que a A. ofrecía sin peros la sucursal offshore como un servicio más del banco. Ello revela un patrón de comportamiento del encartado A. y la falta de culpa de la víctima pues todas ellas, empresarios nacionales y extranjeros reconocidos y de amplia trayectoria financiera, bancaria y en inversiones, creyeron en A. por la forma en que presentaba el negocio (en las instalaciones de Banco Elca, con su personal gerencial, con papel membretado de la entidad de Belice, aludiendo a una entidad con el mismo nombre del Banco y los mismos signos externos y valiéndose de la confianza depositada en él por el prestigio que hasta entonces tenía). También se determinará en esta sentencia que esos no eran los únicos actos irregulares, inmorales o ilícitos cometidos por A. sino que, tiempo después, creaba préstamos ficticios, lograba evadir el trámite normal para solicitudes de crédito aprobándolas o prorrogándolas él solo, a favor de sociedades relacionadas consigno mismo, autorizaba redenciones anticipadas de certificados a favor de su familia pero no de terceros y a sabiendas de la grave situación que atravesaba el banco que ameritaría el inminente decreto de un grado de irregularidad por parte de la SUGEF, crea operaciones ficticias para "maquillar" los informes contables de la institución, etc. Es decir, hay un comportamiento simultáneo y posterior del encartado A. que denota el irrespeto a las normas y procedimientos y su afán por presentar como reales formas que no lo eran. *Subfortuna: la falta de medios económicos necesarios para continuar desempeñando la actividad bancaria de parte del simulador se evidencia, en este caso en que, si bien a título personal y frente a cualquier persona media él mantenía una posición económica solvente, la institución que representaba no la tenía frente al medio bancario. Es decir, carecía de los recursos que se requerían para mantenerse en el sistema financiero con un banco abierto y operando regularmente. Recordemos que si bien los certificados que nos ocupan se emiten de mayo de 2002 y la SUGEF lo notifica tiempo después que debía aumentar de un modo importante las reservas ante las diversas irregularidades en créditos que se habían observado (muchas de los cuales están íntima y directamente relacionados con la gestión personal de A. como se analizará en otros considerandos), varios testigos dijeron que el banco había estado ya en un grado de irregularidad importante, que F.y le prestaba a A. sus cuentas para obtener recursos que ya por sí mismo no podía obtener, etc. (así las declaraciones de H, C, etc.), de modo que obtener recursos era apremiante para A. y hacerlo aparentando que se invertirían en una sucursal offshore de ese banco en el exterior (lo que, de por si, era una práctica común en los otros bancos del país para entonces) era el modo apropiado para obtenerlos. *Movimiento bancario: los negocios jurídicos patrimoniales entrañan siempre un movimiento bancario máxime la magnitud de ciertas operaciones. En este caso se encuentra acreditado que se debita de la cuenta de Montañas Mágicas del Sur (también propiedad de M) la suma de tres millones de dólares -junto a otros montos no reclamados- y con el cheque de gerencia que se crea -a nombre del banco en el que A. tenía la cuenta de su sociedad Bosques de Ayarco S.A. por haberlo solicitado A. como parte del procedimiento para ingresar el dinero a la cuenta en Belice- se le entrega a la persona autorizada para ello por C., nada más y nada menos que el gerente general de Banco Elca. Luego el dinero es depositado en la cuenta de Bosques de Ayarco, propiedad de C. según consta a folios 53-54 del legajo de querella de Cori Consulting and Financial Services y de ahí sale para diversas cuentas relacionadas con C. como indicara H. No consta que A. en ningún momento transfiriera esa suma a ningún banco internacional a nombre de la entidad ofendida (y no al suyo propio), de modo que la mención que contienen los certificados de inversión referente a Elca International Bank and Trust Limited es solo eso, letras en un papel, sin que ese dinero fuera recibido por el banco que, luego, se autorizó para funcionar pero con un cambio de nombre (folios 35 a 40 del legajo de querella de Cori Consulting and Financial Services S.A.), todo ello sin conocimiento de la victima, y es vendido a los venezolanos como dijera el propio A. y consta en el correo de folio 7209 del tomo XV principal en donde él pretende desligarse de la obligación a partir de las formas legales citadas, olvidando estos elementos que se destacaban de las apariencias del negocio que originalmente se pactó. *Retentio possessionis: mantener la posesión de la cosa o falta de ejecución del contrato simulado: se evidencia cuando los encartados A. y F.y mantienen bajo su custodia (el último materialmente y el primero por dominio de la situación) los títulos de inversión originales y no los entregan a R. pese a los constantes requerimientos de este. Esa posesión de los títulos se logró, también, gracias a la confianza y credibilidad que merecían las citadas personas y al hecho de que siendo cónsul en Belice F.y y encargado de viajar constantemente, eventualmente tendría más facilidades de negociar los citados títulos valores en caso de requerirse (según se le dijo a la víctima). No obstante, la retención de los títulos evidencia la necesidad de que las víctimas no tuvieran documentos que comprobaran la falsedad de todo lo que se aparentaba. Por otra parte, la retención de la posesión de todo lo acaecido en el Banco de Belice se evidencia porque hasta los gastos de esa institución intentaron introducirse en los estados financieros del Banco Elca S.A. (ver folio 10496 del tomo XIX principal) lo que determina el dominio de una sobre otra. *Tempus: ya se dijo que hay sospecha por el tiempo de celebración de esos contratos pues para mayo de 2002 el Banco Elca S.A. requería recursos importantes con los que hacer frente a las diversas obligaciones que tenía incluyendo la de mantener una cara de normalidad ante las instituciones de supervisión nacionales. El mismo A. indicó que había tenido una "corrida" importante de inversionistas a raíz de actos en los que estuvo involucrado un presunto inversionista (M) que se dedicaba a hacer piquetes frente al banco y H, refirió que eso le hizo tanto daño al Banco Elca S.A. que C. empezó a recibir dinero de "mechudos" es decir inversionistas de casinos, con dinero en efectivo de Colombia, etc. *Insidia: maniobras del simulador que sobrepasan los niveles de tolerancia social pues hace participar a la víctima en la simulación: ¿cómo no recordar que A. cita al querellante a reuniones en Guatemala para hacerle partícipe de supuestas formas de pago y reuniones para que capitalizara sus inversiones? *Provisio: son previsiones del simulador para lograr el fin y evitar la traición del cómplice (Varela vio cómo A. se llevaba, poco antes de la intervención,. documentación del banco; posteriormente en la casa de su padre aparecen documentos relacionados con esta operación. Álvaro Castro indicó que A. lo llamó para decirle que se apuntaba con él o con F. y G. y, en este caso, aparecerían "papelitos" que lo comprometían, con lo que pretendía guardar su lealtad y silencio. *Incuria: descuido en elementos accidentales del negocio simulado. No obstante lo que hasta ahora se viene diciendo, es claro que A. descuidó detalles que, sin embargo, le eran útiles para hacer incurrir en el engaño a la víctima. Usa como nombre de la sucursal offshore el mismo "Elca Internacional" que tenía la corporación controladora del banco Elca S.A. (Corporación Elca Internacional S.A.) y los signos externos son los mismos (si se observa el logo de los certificados originales frente a los documentos contemporáneos se percibe claramente que se trata de la misma forma de escribir el nombre, los mismos colores, etc.) y hace las reuniones en el seno del mismo Banco Elca S.A., citando a los personeros gerenciales de la institución quienes pasan a ser así, testigos, de la irregularidad acreditada. Descuidó también A. , en este intento de desligar ambas instituciones, el que se había abierto una cuenta especial a nombre de J. en los estados financieros de Banco Elca con que se pagarían los gastos del supuesto banco de Belice (folio 10496 del tomo XIX) y que, para ponerlo a operar, en fecha muy posterior a los certificados de la víctima, tuvo que llevarse parte del personal local para allá, con gastos cubiertos por el Banco Elca S.A. como indicara la oficial de cumplimiento. *Inertia: el cómplice muestra una actitud pasiva. Nótese que según indicara G, en debate J. se mostraba anuente, en ausencia de C., de entregarles diversos documentos. Siempre él asentía que el dinero se iba a entregar, que estaban haciendo gestiones y daba excusas por el atraso pero quien terminaba dando la palabra final (negociando para convertirlos en accionistas del banco en Belice y diciendo, simple y llanamente, que no iba a pagar) era C.. *Dominancia: papel dominante del principal que en este caso es A. a quien todos le obedecen y le rinden pleitesía creyéndole todo lo que dice y confiando en todo lo que hace. *Indicios endoprocesales: que se manifiestan con la parquedad en explicaciones de temas medulares y la elocuencia en temas intrascendentes o marginales; la conducta oclusiva y omisiva tendiente a obstaculizar la labor probatoria que se manifiesta con la negativa a entregar los documentos originales desplegada originalmente por F.y o en el planteamiento de una estrategia de defensa, material y técnica, tendiente a culpar a todos -salvo a A. - por todo y en exposiciones con amplio análisis de pequeños detalles que dejan al margen el tema central. Todos estos indicios, valorados en conjunto, permiten concluir que lo que sucedió no fue que un banco internacional intervino como tercero en una negociación nacional como se ha pretendido hacer ver sino que Banco Elca S.A., a través de su Presidente y representante legal, aparentó la existencia en condiciones de normalidad de una institución para captar a su nombre dineros que, en realidad, nunca ingresaron a dicha entidad pues no sólo se acreditó que el dinero ingresó a la cuenta de Bosques de Ayarco S.A. perteneciente o dominada por C. sino que, para entonces, la citada institución no tenía licencia de Belice para captar. En consecuencia, quien creó la apariencia (Banco Elca S.A. a través de sus personeros) es quien debe responder y no necesariamente un tercero cuyo nombre fue usado. Igual ocurriría si la entidad usada no hubiera existido del todo (y no, como en este caso, que estaba en trámite pero no podía funcionar en cuanto a captaciones se refiere) o si existiendo legal y lícitamente su nombre es usado, sin su consentimiento, para negocios de otros. Son éstos quienes responden y no aquellos cuyo nombre fue indebidamente usado. Todo ello, claro está, sin perjuicio de alguna solidaridad que pueda existir (ya que para el momento de los hechos los personeros de la entidad de Belice eran A. y F.y), que como tal no impide que en este caso deba responder Banco Elca S.A., ahora su Quiebra y Junta Liquidadora de ella, a libre elección del actor civil como sucede en las obligaciones solidarias (artículo 640 del Código Civil)…. En virtud de todo lo certificados de Elca International Bank and Trust Limited de Belice, de presentar esa institución como una sucursal offshore del Banco Elca S.A., entidad en la que actuaba como su representante para luego usar la separación patrimonial y jurídica de las sociedades a fin de evadir responsabilidad por el dinero recibido, es claro que abusó del derecho y, por ello, no ha de verse la forma jurídica (dos sociedades diversas) sino la apariencia desplegada ante las víctimas (C. actuando en representación de Banco Elca S.A. y comprometiéndose en nombre de esa institución por lo que ella responde) y, por ello el tribunal -teniendo la obligación de impedir que un delito tenga consecuencias jurídicas mayúsculas- no puede estimar que Banco Elca S.A. (ahora su quiebra y Junta Liquidadora) carezcan de responsabilidad civil. Es en virtud de lo dicho que las excepciones de falta de legitimación pasiva, falta de legitimación activa, falta de derecho y la genérica sine actione agit (ver folio 13853) deben ser rechazadas y ha de acogerse la demanda civil resarcitoria planteada por Night Glow S.A. no sólo contra C. actuando a título personal (en cuanto causante del delito) sino también contra Banco Elca S.A., ahora su Quiebra representada por la Junta Liquidadora. Night Glow S.A. tiene derecho a que su dinero le sea retribuido pues fue entregado de buena fe y envuelta en un delito ya declarado. Si bien el dinero pudo provenir de otra entidad (Montañas Mágicas del Sur S.A.) hay libertad de disposición del patrimonio y si el representante de Montañas Mágicas S.A. lo invierte a nombre de Night Glow S.A. y ésta no recupera la inversión es ésta quien está legitimada activamente para demandar, sin perjuicio de la responsabilidad que pueda tener el representante por ese giro de haber mediado algún acto ilícito, que no es esta la vía para declararlo ni tienen interés en ello los demandados civiles. No interesa, para efectos de legitimación activa, quién es el dueño único de las acciones de tales entidades pues siempre actuó en el proceso su apoderado general judicial conforme a los documentos de folio 952 del tomo III principal y 118-119 del legajo de demanda civil (entre otros) y los apoderados especiales de este (ver folio 121 del legajo de demanda civil). A. y la Quiebra del Banco Elca S.A. (en cuanto sucesión del fallido Banco Elca S.A.) están legitimados para ser demandados civilmente al ser uno el causante del delito y la otra la empresa en que se cometió, por su apoderado, administrador y representante legal y dando la apariencia de que comprometía a esa institución y actuaba dentro del marco propio de sus funciones. Hay interés actual porque los daños y perjuicios no han sido resarcidos, ya nacieron a la vida jurídica, no son desde su reconocimiento en sentencia (artículo 138 de las reglas vigentes del Código Penal de 1941 sobre responsabilidad civil según ley Nº 4891 y 868 del Código Civil).” En resumen, como ya lo dijo esta Sala líneas arriba, concordando con la exposición sopesada y documentada del a quo, al haber actuado A. en uso de su calidad de presidente del Banco Elca y de las credenciales con que este contaba, el Banco asumió la condición de obligado solidario por los hechos ilícitos en que aquel incurrió. Siendo así, aunque la transacción que por tres millones de dólares se efectuara con la presunta agencia localizada en Belice, ello no es óbice para que, en términos extracontractuales, la Quiebra del Banco Elca deba asumir esa responsabilidad. Sin lugar los dos motivos.

XXXVIII.- Como cuarto motivo de forma, vuelven los impugnantes sobre el tema de que sólo los actores dijeron desconocer que la agencia offshore del Banco Elca en Belice no tenía permiso para captar fondos; que luego obtuvo ese permiso; que la transacción con el señor G. fue un negocio personal de A. y que la agencia en Belice pertenecía a la Corporación Elca, y no al Banco Elca, por lo que este no debe responder; que no se demostró que los fondos no fueran acreditados en aquel lugar; que debe existir en dicha entidad provisiones suficientes para honrar la deuda con G; y, nuevamente, que no hay nexo causal que comprometa o responsabilice a su representada en esos hechos. No es de recibo el reclamo. Nuevamente debe explicarse a los petentes que el análisis que hacen parte de premisas normativas erróneas, pues se da por supuesto que se trató de una transacción financiera y a partir de ese dato y las prescripciones que regulan la materia, obtienen sus conclusiones. Sin embargo, como ya repetidamente se ha venido diciendo en esta resolución, no se estaba ante una transacción financiera normal, sino ante un delito que se largamente en el considerando anterior. Estando explicado allí, segmento ese en que se abordan todos los tópicos que los recurrentes otra vez plantean en este motivo, se remite a las partes a lo decidido.

XXXIX.- El próximo tema que cuestionan los recurrentes es la legitimatio ad causam activa ostentada por Night Glow sociedad anónima, pues esta le fue reconocida después de ser discutida en el proceso, pese a que consta que el dinero que fue entregado a A., provenía de la cuenta de otra sociedad anónima de ese mismo empresario, como es Montañas Mágicas del Sur. Por ende, afirman, aquella no podía comparecer al proceso como actora civil ni verse indemnizada, dado que no fue perjudicada y no poder actuar por cuenta de la otra sociedad. Al no haber comparecido ningún representante de Montañas Mágicas del Sur, la acción no era sustanciable ni concedible. Además, no se comprobó por vías preceptuadas por el Código de Comercio quiénes son los socios de ambas personas jurídicas. No son de recibo ambos alegatos. En un proceso penal, no se requiere, como señalan los recurrentes, que la calidad de socios se demuestre a través del Libro de Registro de Accionistas, lo cual puede ser exigible en otros procedimientos, mas no en el penal, en el que rige, como se sabe, el principio de libertad probatoria estipulado en al artículo 182 del Código Procesal Penal. En aplicación de este, los hechos relevantes pueden ser demostrados por cualquier medio lícitamente obtenido, como pueden ser los testimonios vertidos en el debate, de los cuales ninguno puso en tela de duda que G. fuera el socio único de esas dos personas jurídicas, sino que quienes dijeron saber del asunto, así lo constataron. Por otra parte, el hecho de que el dinero proviniera de otra sociedad anónima o, en general, otra persona cualquiera, para ser invertido a favor de Night Glow, no significa que tuviera que comparecer aquella y no esta. Lo importante es que esta es la perjudicada, porque el dinero fue depositado a favor de ella. Piénsese, por ejemplo, en los fondos que una persona cualquiera deposita a favor de otra, o bien que le da en préstamo para que invierta. Obviamente, en tales situaciones, quien se ve ofendido por cualquier veleidad es el beneficiado con el depósito o préstamo, y no aquel que entregó el dinero por cualquier título (depositante o prestatario, por ejemplo). En fin, al igual que en cualquier otro escenario similar, quien se ve agraviado es el titular del derecho, aquel a favor de quien se hizo el depósito o inversión, y no la fuente de origen de los fondos, pues nada impide que, conforme al principio de libre disponibilidad patrimonial, cualquier persona pueda hacer una inversión en beneficio de otra (siempre que esta no lo rechace), siendo esta y no aquella la que se vería damnificada si es que tales fondos desaparecen o se desmejoran. En síntesis, el que el dinero invertido a favor de Night Glow proviniera de Montañas Mágicas del Sur, o cualquier otra sociedad o persona, no implicaba que fuera esta la que tuviera que comparecer al juicio, pues la calidad de ofendida la tiene Night Glow, y no la fuente de los fondos, que a los efectos es irrelevante de dónde provengan o a qué título. Sobre esas cuestiones, nuevamente vale la pena referirse a lo establecido por el a quo, que sobresale en claridad y contundencia. “En cuanto a la excepción de fondo de falta de legitimación activa (ad causam) tampoco se determina como acogible pues, conforme se analizará ampliamente cuando se aborde el tema específico, G, en cuanto único dueño del capital accionario de Night Glow S.A. (como lo indicaran tanto él como R y J. y consta en los documentos de folios 16144-16149 del tomo XXVI principal y 16630 del tomo XXVII que es un documento público y no ha sido argüido de falso en la vía correspondiente: artículo 370 del Código Procesal Civil), es quien le entrega el dinero y autoriza a R. para que éste entregue los cheques de gerencia para hacer la inversión de los tres millones de dólares. Conforme a las instrucciones dadas, R. entrega el dinero a H. -por órdenes de C. quien actuaba como Presidente de Banco Elca (pues A. no se encontraba en ese momento como indicara H. quien refirió que lo llamó y A. le dijo que recibiera los cheques y le dio las especificaciones para que se hicieran los certificados de inversión a nombre de Night Glow S.A.)- de modo que el primero, en la citada condición, está legitimado para demandar a quien, posteriormente, se negó a devolverle los recursos invertidos y quien le había dado información no correcta sobre la citada inversión, que es el aquí encartado quien actuó, en su momento, tanto a título personal como en su condición de Presidente de Banco Elca S.A. por lo que ahora puede ser demandado a título personal y hacerse lo propio respecto de quienes ahora ostentan la representación de Banco Elca, como oportunamente se analizará. Las manifestaciones de la defensa de don C. en el sentido que no se demostrara que M. sea el propietario y único accionista de Night Glow S.A. o de Montañas Mágicas S.A. o que el dinero es de esta entidad y no de aquella por lo que los personeros de Montañas Mágicas del Sur S.A. son quienes tienen que demandar tampoco son de recibo. Ha de recordarse que en materia penal rige el principio de libertad probatoria (artículo 182 del Código Procesal Penal) por lo que todo se puede demostrar por cualquier medio legítimo de prueba salvo disposición prohibitiva en contrario que no hay para estos efectos. El señor G. tanto como don R y J. refirieron que tanto Montañas Mágicas del Sur S.A. como Night Glow S.A. son sociedades cuyo único accionista es el señor G. y que si bien el dinero se tomó de las cuentas de la primera empresa lo fue para invertir en certificados de depósito a nombre de la segunda empresa, existiendo el principio de disponibilidad patrimonial que así lo posibilita, de modo que quien tiene la legitimación para demandar es la empresa a cuyo nombre se constituyeron los certificados de inversión (Night Glow S.A.) aunque los recursos hayan provenido de otra fuente y, por ello, no se observa ningún vicio a este respecto. Por otra parte, de existir alguna controversia sobre la titularidad del dinero es algo que deberán resolver las entidades Montañas Mágicas del Sur S.A. y Night Glow S.A. sin que en la controversia eventual que llegare a suscitarse tengan algún interés los demandados civiles o acusados penales pues éstos están legitimados para ser demandados por aquellos a nombre de quienes se confeccionaron los títulos, como en efecto se hizo, con independencia de si para la confección de esos documentos medió o no algún pacto.” (folios 17037-17038). Queda entonces explicado que, contrario a lo sostenido por los gestionantes, la sociedad anónima Night Glow sí estaba legitimada para comparecer al proceso y que la personería del señor G. sobre ella fue correctamente acreditada. En consecuencia con todo lo dicho, se declara sin lugar el motivo.

XL.- En el último motivo de forma, aseguran los recurrentes que la sentencia concedió la liquidación de intereses por las sumas debidas aún después de que se declaró la quiebra del Banco Elca, la cual fue declarada el 24 de febrero del año 2005. Esto a contrapelo de lo que establece el artículo 885 del Código de Comercio, el cual hace cesar de inmediato el curso de intereses corrientes y moratorios frente a la masa, a partir de ese momento. Añade que, aparte de marcar una desventaja para los demás acreedores, representó un exceso por parte del a quo, al hacer una liquidación que el actor civil no hizo, la cual debió ser rechazada por genérica. Además, dicen, la tasa utilizada es la propia de obligaciones civiles, lo cual es incorrecto. Para terminar, dicen los quejosos, la solicitud fue para amparar los depósitos, en tanto el a quo los concede por concepto de indemnización. No es de recibo el alegato. Efectivamente la tasa empleada es la que corresponde a las obligaciones civiles, porque la responsabilidad que surgió de los hechos es de carácter civil, y no mercantil o de otra índole. Esta, debe recordarse otra vez, no proviene de un acto mercantil, sino de uno delictivo, siendo por tanto aplicable al respecto la legislación civil. Por eso mismo, el cese de intereses dispuesto por la legislación comercial respecto a las obligaciones de la entidad a partir de la quiebra, no es apto para este caso, en el que frente a lo que se está no es una obligación mercantil y sus intereses corrientes o moratorios, sino una responsabilidad civil proveniente de un delito, que tiene un estatus que efectivamente la hace diferente a las otras obligaciones de la quebrada, las cuales surgieron como de carácter comercial y, en consecuencia, sí se rigen por la regulación que impone tal cese. Pero, como se ha subrayado hasta el cansancio, en este asunto la categoría y disciplina jurídica de los hechos es diversa, por estarse frente a un ilícito penal y no una mera transacción mercantil, que es una distinción que los recurrentes sistemáticamente han omitido. Luego, no es cierto que la actora no hiciera una liquidación de las sumas que cobraba. Con tal propósito, hizo remisión a las tasas vigentes en cada época, las cuales son y pueden ser de conocimiento de los interesados. En otras palabras, al señalar que debe hacerse la liquidación de intereses conforme a la tasa vigente en los diferentes plazos que componen el transcurso a partir del hecho punible, no es preciso mencionar ritualmente las diferentes tasas vigentes en cada periodo, pues estos están fijados por el Banco Central de Costa Rica, sin que necesiten comprobación por ser un parámetro de conocimiento general. Por otra parte, el concepto jurídico por el que se solicita la indeminización de intereses, es irrelevante, correspondiéndole a los Juzgadores aplicar la normativa vigente, de conformidad con el principio iura novit curia, pues es un asunto de Derecho. Lo relevante es que la parte haya exigido ese resarcimiento y este fuera concedible, aunque la fundamentación normativa fuera otra a la mencionada por la actora.

XLI.- En el motivo de fondo se replantea el tema de que los intereses no fueron liquidados por la actora según la tasa vigente para cada uno de los periodos corridos, por lo que al hacerlo de cuenta propia el Tribunal sustituyó la voluntad de esta y concedió más de lo solicitado. El tema ya fue discutido y resuelto en el considerando anterior, por lo que debe estarse a lo allí establecido.

XLII.- En el único motivo que compone su recurso por adhesión, el apoderado de la querellante y actora civil reclama la incorrecta aplicación de la normativa de fondo. Sostiene que, al liquidar sus honorarios, el a quo aplicó la tabla de N° 20307-J, pero que la intervención suya y de su representada en este asunto se dio a partir del 22 de agosto del 2005, cuando ya regía el nuevo arancel, N° 32493-J (vigente desde su publicación en La Gaceta N° 150, del 5 de agosto del 2005). Indica que, si bien ese decreto contiene un transitorio en el que se preceptúa que los procesos ya iniciados se rigen según la tabla derogada, lo cierto es que, para su representada, el trámite se inició en agosto del año 2005, cuando intervino en esta. No es atendible el motivo. Antes de abordar el reclamo, debe aclarársele a la parte que la contraprueba al testimonio del doctor Carazo Serrano ofrecida por adherente a 18412, dejó de tener relevancia procesal, al haberse rechazado en esta sede el testimonio del citado galeno (folio 18550), por lo cual no era pertinente su evacuación. En lo que corresponde al alegato presentado por el licenciado R, debe señalarse que el proceso no se inicia para una parte cuando esta interviene, sino cuando ha empezado el trámite de la causa. De forma que, aunque la intervención pueda ser tardía, lo cierto es que ello no puede llevar a sostener que hasta entonces “empezó el proceso”, lo cual haría que el “inicio” de cada trámite sea relativo a cada uno de los intervinientes, con la consecuencia de que, como en este asunto, los honorarios profesionales sean diversos de acuerdo a la fecha en que se empezó a participar del proceso. Al contrario, debe tenerse en claro que, una cosa es el inicio del proceso, y otra es el inicio de la intervención en él, que no son lo mismo. Aquel se puede desarrollar y tiene existencia aunque una parte en específica no intervenga, o cuando su intervención se demore; esta, inicia con el trámite o, como sucede aquí, lo encuentra iniciado. Por consiguiente, no es admisible esgrimir, como dice el recurrente, que al haberse apersonado su representada al proceso el 22 de agosto del 2005, la tabla de honorarios aplicables sea la publicada unos días antes, porque esta contiene un transitorio el cual dispone que para los asuntos ya comenzados, seguiría rigiendo la tabla anterior. Entonces, al estar esta causa entre las que se había iniciado antes de la promulgación de la tabla de aranceles profesionales del año 2005, le corresponde seguir rigiéndose por la que la precedió, o sea el decreto 20307-J. en conclusión, el punto está correctamente resuelto por el Tribunal y debe declararse sin lugar el recurso.

XLIII.- En cuanto a las probanzas presentadas por el defensor Elizondo Breedy con fecha del 29 de junio y que rolan a folios 18673 y siguientes, cabe acotar que, como reconoce el propio recurrente, en cuanto a la calidad de las operaciones back to back, no aportan argumento novedoso alguno, pues ese elemento ya fue discutido páginas atrás. El hecho de que hayan sido hechas por el representante de los acreedores del Banco Elca en la Junta Liquidadora, no viene a agregar ningún otro factor de consideración a las acciones de A. que aquí se analizan ni desdicen en lo más mínimo las maniobras fraudulentas que se desarrollaron con el pretexto de dichas operaciones.

XLIV.- Luego, acerca de la conducta observada por el acusado A. como privado de libertad, y la solicitud de que se reduzca la “pena cruel” (apalabras del defensor) impuesta a ese ciudadano de cincuenta años, también en las páginas anteriores se resolvió el asunto, declarando que no se estima que dicha pena resulte desproporcionada y, las condiciones del acusado en su calidad de privado de libertad, pueden ser tomadas en cuenta por la Administración Penitenciaria o incluso el Juez de Ejecución de la Pena para determinar los patrones específicos por los que se regirá, según las circunstancias, el cumplimiento de la pena de prisión impuesta en el fallo a A..

Por Tanto:

Se declaran sin lugar las casaciones y la adhesión presentadas.

José Manuel Arroyo G.

Jesús Ramírez Q.

Alfonso Chaves R.

Magda Pereira V.

María Elena Gómez C.

(Mag. Suplente) dm